Isabella Carter
Canada's constitution has been amended several times since it was patriated in 1982. Before 1982, Canada could only change its constitution by requesting the British Parliament to do so. The process of amending the constitution is complex and requires approval from both the federal government and two-thirds of the provincial governments, representing at least 50% of the population. The Canadian constitution's amending formula, which is outlined in sections 38 to 49 of the Constitution Act, 1982, includes a series of procedures that govern how the constitution can be modified. This formula ensures that the constitution is well-protected and that all provinces have a say in any proposed changes.
| Characteristics | Values |
|---|---|
| Procedure | A series of procedures listed in sections 38 to 49 of the Constitution Act, 1982 |
| Difficulty | Complex and difficult to change |
| General Formula | Requires approval from the House of Commons, the Senate, and a minimum of seven provincial legislatures representing at least 50% of the population (the 7/50 rule) |
| Unanimous Consent | Some changes require approval from all ten provincial governments and the federal government, including changes to the role of the monarch, language use, and amending procedures |
| Bilateral Agreement | Amendments to provisions that apply to some but not all provinces, such as boundary alterations, require resolutions from the Senate, House of Commons, and the legislative assembly of each province involved |
| Proclamation | Amendments under certain sections may be made by proclamation issued by the Governor General under the Great Seal of Canada |
| Senate Resolution | Under Section 47, an amendment may be made without a resolution from the Senate if, within 180 days, the Senate does not adopt a resolution and the House of Commons adopts the resolution again |
| Compensation | When an amendment transfers provincial legislative powers to Parliament, Canada shall provide reasonable compensation to provinces not affected by the amendment |
| Historical Context | Before 1982, changes were enacted through Acts of the Parliament of the United Kingdom (British North America Acts) |
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What You'll Learn
The 7/50 rule
However, some matters are considered so significant that they require unanimous consent from all provincial governments and the federal government. These include changing the role of the monarch, altering the use of English or French in Canada, and amending the procedures for constitutional modifications.
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The amending formula's creation
Before 1982, Canada could only amend its constitution by asking the British Parliament to do so. In other words, changes were enacted through Acts of the Parliament of the United Kingdom (or "Imperial Parliament") called the British North America Acts. This was because, unlike most other constitutions, the British North America Act, 1867 (now the Constitution Act, 1867) had no amending formula.
Between 1931 and 1982, the federal government, on behalf of the House of Commons of Canada and the Senate, would issue an address to the British government requesting an amendment. The request would include a resolution containing the desired amendments, which were always passed by the British Parliament.
In 1981-82, Canada's Constitution was updated, and the drafters of the revised Constitution created an amending formula. This formula was created to "patriate" the Constitution, that is, to bring it home so that Canada no longer needed to rely on Britain. Creating the formula was not easy because all of the provinces wanted a say in any future changes to the Constitution. The amending formula comprises a series of procedures that are listed in sections 38 to 49 of the Constitution Act, 1982. There are five different procedures for changing different aspects of constitutional law in Canada.
The general procedure, or standard way to change the Constitution, requires approval from the House of Commons, the Senate, and a minimum of seven provincial legislatures representing at least 50% of the population of all the provinces combined (the 7/50 rule). This means that provinces with large populations will typically need to approve a change, but smaller provinces must also be involved. Some changes require the approval of all provincial governments and the federal government. These include changing the role of the King or Queen, changing the use of English or French in Canada, or changing the amending procedures themselves.
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Provincial government approval
Before 1982, Canada could only change its Constitution by requesting an amendment from the British Parliament. The Constitution Act of 1982, however, set out a series of procedures for amending the Constitution, listed in sections 38 to 49. This "amending formula" allows Canada to change its Constitution independently, without relying on Britain.
The amending formula requires approval from the federal government and a minimum number of provincial governments. In most cases, at least seven provinces representing at least 50% of the population must approve the change (the "7/50 rule"). This means that provinces with larger populations typically need to approve a change for it to succeed, but smaller provinces also have a say.
Some amendments require unanimous consent from all ten provincial governments and the federal government. These include changes to the role of the monarch, the use of English or French in Canada, and the amending procedures themselves.
The 1987 Meech Lake Accord, a package of constitutional amendments addressing Quebec's objections to the Constitution Act, failed in 1990 when it was not ratified by all ten provincial governments. This highlights the challenge of achieving unanimous provincial consent.
The complexity of the amending formula and the requirement for provincial government approval make amending Canada's Constitution a difficult process, ensuring that the Constitution is well-protected.
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Federal government approval
The Canadian Constitution's amending formula is a complex procedure that requires approval from both the federal government and provincial legislatures. The formula, outlined in sections 38 to 49 of the Constitution Act, 1982, was established to patriate the Constitution and enable Canada to amend it independently without relying on Britain.
The general formula for amending the Constitution requires approval from the House of Commons, the Senate, and at least seven provincial legislatures representing at least 50% of the total population, also known as the 7/50 rule. This ensures that both larger and smaller provinces have a say in the process.
However, certain amendments require unanimous consent from all ten provincial governments and the federal government. These include changes related to the monarchy, the use of official languages, and the amending procedures themselves.
The Constitution Act also allows for amendments without a Senate resolution under specific conditions outlined in Section 47. Additionally, Section 41 of the Act describes the types of changes that require unanimous agreement from all governments, such as altering the role of the monarch or amending language usage.
The process of amending Canada's Constitution is deliberately intricate to protect the nation's fundamental values. The formula has been successful in safeguarding the Constitution, but it has also made the amendment process challenging, as evidenced by the failed attempts to pass comprehensive packages of constitutional amendments like the Meech Lake Accord and the Charlottetown Accord.
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The Constitution Act, 1982
The Act introduced several amendments to the British North America Act, 1867, including renaming it the Constitution Act, 1867. It also enacted the Canadian Charter of Rights and Freedoms, which is Part I of the Constitution Act, 1982. The Charter is a bill of rights that protects the political, legal, and human rights of people in Canada from the policies and actions of all levels of government. It also aimed to unify Canadians around a set of principles that embody those rights. The Charter was drafted through consultations between the federal government and the provincial governments.
In addition, the Act provided for future constitutional conferences and set out the procedures for amending the Constitution in the future. The procedures for amending the Constitution of Canada are outlined in sections 38 to 49 of the Act. These procedures can be complex and, in most cases, require approval from both the federal government and two-thirds of the provincial governments, representing at least 50% of the population. In some cases, the approval of the federal government and all ten provincial governments is necessary.
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Frequently asked questions
The Canadian Constitution amending formula is a series of procedures listed in sections 38 to 49 of the Constitution Act, 1982.
Before 1982, Canada could only amend its Constitution by requesting the British Parliament to do so. The British North America Act, 1867 (now the Constitution Act, 1867) was amended by the Parliament of the United Kingdom through the British North America Acts.
The general formula requires approval from the House of Commons, the Senate, and a minimum of seven provincial legislatures representing at least 50% of the total population of all the provinces. This is often called the 7/50 rule.
Changes to the role of the King or Queen, the use of English or French in Canada, and the amending procedures themselves require the consent of all provincial and federal governments.
Section 47 allows an amendment to the Constitution to be made without a resolution from the Senate if, within 180 days after the House of Commons passes a resolution, the Senate does not adopt such a resolution, and the House of Commons readopts the resolution.
