Simone Lawson
Canada's Constitution is notoriously difficult to amend. Before 1982, Canada could only change its Constitution by asking the British Parliament to do so. In 1982, Canada patriated its constitution, creating an amending formula that would be acceptable to Britain and to the federal and provincial governments. This formula, which comprises a series of procedures listed in sections 38 to 49 of the Constitution Act, 1982, has made it challenging to amend the Constitution. To change the Constitution using the general formula, the amendment must be approved by the House of Commons, the Senate, and a minimum of seven provincial legislatures, representing at least 50% of the total population of all provinces. Some changes require unanimity among all provincial governments and the federal government. These requirements, along with extra-textual factors like Supreme Court interpretations and constitutional conventions, make amending Canada's Constitution a complex and arduous process.
| Characteristics | Values |
|---|---|
| Textual requirements | Major constitutional amendments must satisfy textual requirements |
| Extra-textual requirements | Supreme Court decisions, parliamentary, provincial and territorial statutes, and constitutional conventions |
| Amending 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 provinces |
| Unanimity procedures | All provincial and federal governments must consent to changes regarding the role of the monarch, use of English or French, or amending procedures |
| General formula | Only the governments affected by the change need to agree; for example, changes to a provincial constitution only require approval from that province |
| Direct approval | Amendments do not require direct approval from the people of Canada, but some governments advocate for a public vote or referendum |
| Regional vetoes | Ontario, Quebec, British Columbia, the Prairies, and the Atlantic hold veto power over proposed amendments |
| Comprehensive attempts | The Meech Lake Accord and the Charlottetown Accord, which attempted to address Quebec's objections, were defeated |
| Notwithstanding clause | Section 33 of the Canadian Charter of Rights and Freedoms allows federal and provincial parliaments to temporarily override rights and freedoms for up to five years |
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What You'll Learn
- The 7/50 rule requires a minimum of seven provinces to approve an amendment, representing 50% of the population
- Amendments must be approved by the House of Commons, the Senate, and a minimum number of provincial legislatures
- The Canadian Constitution has extra-textual requirements imposed by Supreme Court decisions, making it harder to amend
- Some amendments require unanimous support from all provincial governments and the federal government
- The notwithstanding clause, Section Thirty-three, allows federal and provincial parliaments to override certain rights and freedoms
The 7/50 rule requires a minimum of seven provinces to approve an amendment, representing 50% of the population
The Canadian Constitution has proven difficult to amend due to the stringent requirements set by the 7/50 rule. This rule, outlined in Section 41 of the Constitution Act, 1982, mandates that any amendment must be approved by a minimum of seven provinces, collectively representing 50% of the total population. This dual condition ensures that both a substantial geographical spread and a critical mass of citizens are in favour of the proposed changes.
The 7/50 rule is a key component of the amending formula, which was established during the patriation of the Constitution in 1982. Prior to this, Canada relied on the British Parliament to make constitutional changes. The patriation process empowered Canada to amend its Constitution independently, marking a significant step towards full sovereignty.
The amending formula, comprising Sections 38 to 49 of the Constitution Act, 1982, outlines a series of procedures that must be followed for any constitutional amendment to be ratified. The 7/50 rule, as a central tenet of this formula, ensures that any alteration to the Constitution reflects the interests and consent of a significant portion of the Canadian population, thus preventing unilateral changes that could favour certain regions or demographics.
The rule's requirement for a minimum of seven provinces to approve an amendment is particularly noteworthy. Given that Canada has ten provinces in total, this threshold ensures that any constitutional change must garner support from a substantial geographical area, preventing regional biases from dominating the process.
Additionally, the 50% population criterion guarantees that any amendment reflects the will of a sizeable segment of Canadian citizens. This safeguards against potential tyranny of the majority, where a simple majority could impose changes that may infringe on the rights or interests of the remaining population. By setting the bar at 50%, the 7/50 rule helps maintain a delicate balance between the need for change and the protection of the rights of a significant minority.
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Amendments must be approved by the House of Commons, the Senate, and a minimum number of provincial legislatures
The Canadian Constitution is notoriously difficult to amend, and one of the reasons for this is the requirement for amendments to be approved by the House of Commons, the Senate, and a minimum number of provincial legislatures. This is known as the "7/50 rule" or the "amending formula".
The 7/50 rule dictates that at least seven provinces, representing at least 50% of the total population across all provinces, must approve any proposed amendments. This ensures that provinces with larger populations have a greater say in constitutional changes, while also requiring some support from smaller provinces. This comprehensive approval process makes it challenging to reach the required consensus for amendments, especially considering the diverse interests and perspectives across Canada's provinces.
The amending formula was established during the patriation of the Constitution in 1981-1982, when Canada sought to bring its Constitution home and make changes independently of British Parliament. The formula is outlined in Sections 38 to 49 of the Constitution Act, 1982. While the specific formula has not been formally altered, the interpretation and application of the rules have evolved over time, influenced by Supreme Court decisions, parliamentary and provincial statutes, and constitutional conventions.
The approval of the House of Commons and the Senate is crucial, but it is the requirement for provincial legislatures' approval that adds significant complexity. This is because, in addition to the 7/50 rule, certain types of amendments require unanimous consent from all provincial governments. These include changes related to the role of the monarch, the use of English or French in Canada, or the amending procedures themselves. This unanimity requirement further heightens the challenge of amending Canada's Constitution.
The process of amending Canada's Constitution is a complex and meticulous one, designed to strike a balance between stability and adaptability. While the requirement for approval from the House of Commons, the Senate, and a significant proportion of provincial legislatures ensures that any changes reflect the diverse interests of the nation, it also contributes to the Constitution's reputation as one of the most challenging in the democratic world to amend.
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The Canadian Constitution has extra-textual requirements imposed by Supreme Court decisions, making it harder to amend
The Canadian Constitution has proven difficult to amend due to several factors, including extra-textual requirements imposed by Supreme Court decisions. While the textual requirements for major constitutional amendment are already hard to satisfy, the need to conform to external factors makes it even more challenging.
The Supreme Court of Canada's interpretations of the Constitution set extra-textual requirements that must be met for any amendment to be valid. These interpretations are not explicitly stated in the Constitution's text but are nonetheless essential considerations. This adds a layer of complexity and constraint to the amendment process.
The Canadian Constitution's amendment process is already intricate. To change the Constitution using the general formula, the amendment must be approved by the House of Commons, the Senate, and a minimum of seven provincial legislatures, representing at least 50% of the total provincial population (the 7/50 rule). Some matters, such as changing the role of the monarch or amending official language use, require unanimity among all provincial and federal governments.
The extra-textual requirements imposed by the Supreme Court add another layer of complexity to this already intricate process. These requirements are not explicitly outlined in the Constitution but are inferred from the Court's interpretations. As a result, any proposed amendment must not only navigate the challenging path of securing approval from various legislative bodies but also ensure compliance with the Supreme Court's interpretations, which may introduce additional constraints or considerations.
The difficulty in amending the Canadian Constitution has been a topic of much debate in the country. While some argue for changes to address long-standing provincial demands, others suggest that the Constitution's inherent rigidity preserves stability and consistency in Canada's political system. The extra-textual requirements imposed by Supreme Court decisions are a significant factor in this complexity, underscoring the influence of judicial interpretation on Canada's constitutional landscape.
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Some amendments require unanimous support from all provincial governments and the federal government
Amending the Canadian Constitution is a topic of great debate in Canada. While the Constitution has been amended several times since it was patriated in 1982, the process is generally considered challenging. This is partly because some amendments require unanimous support from all provincial governments and the federal government.
The requirement for unanimous consent from all provincial governments and the federal government is outlined in Section 41 of the Constitution Act, 1982. This section describes the types of changes that necessitate agreement from all parties. These include amendments related to the role of the monarch, the use of English or French in Canada, and the amending procedures themselves.
The unanimous consent requirement ensures that all provinces have a say in decisions that significantly impact the country as a whole. However, it also means that a single dissenting province can block a proposed amendment, making it challenging to secure the necessary support for certain changes.
The difficulty in amending the Canadian Constitution is not solely due to the unanimous consent requirement. The Constitution has faced several other challenges, including regional vetoes held by certain provinces and the need to satisfy extra-textual requirements imposed by Supreme Court decisions, parliamentary and provincial statutes, and constitutional conventions.
Despite these challenges, there have been successful amendments to the Constitution. For instance, the general formula, which requires approval from the House of Commons, the Senate, and a minimum of seven provinces representing at least 50% of the total provincial population, was used in 1983 to make additions to the Aboriginal rights section of the Constitution. Nevertheless, the unanimous consent requirement for certain amendments remains a significant aspect of the complex process of amending Canada's Constitution.
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The notwithstanding clause, Section Thirty-three, allows federal and provincial parliaments to override certain rights and freedoms
The Canadian Constitution is hard to amend due to the stringent requirements and procedures that must be followed. Before 1982, Canada required the British Parliament to make any changes to its Constitution. However, the country's leaders created an amending formula to bring the Constitution home, which is outlined in sections 38 to 49 of the Constitution Act, 1982. This formula includes a series of procedures that require the approval of the House of Commons, the Senate, and a minimum of seven provincial legislatures representing at least 50% of the total population of all provinces.
Section Thirty-three, also known as the notwithstanding clause, is a part of the Canadian Charter of Rights and Freedoms. This clause allows federal, provincial, and territorial parliaments and governments to temporarily supersede certain rights and freedoms outlined in sections 2 and 7–15 of the Charter. It is important to note that this override is subject to renewal and can only be in effect for up to five years at a time.
The notwithstanding clause has been a source of controversy since its inception. While some argue that it preserves parliamentary sovereignty and ensures that legislators have the final say on public policy, others question the legitimacy of this override power. The federal government has never invoked this clause, but provincial parliaments have, including Quebec, Saskatchewan, Alberta, Yukon, and Ontario.
The use of the notwithstanding clause does not prevent court intervention but stops short of allowing the court to apply the judicial sanction of unconstitutionality. This means that even if a court identifies inconsistencies in the legislation with the rights or freedoms under the Charter, they cannot declare the legislation covered by a Section 33 declaration as invalid or without force. This clause has been reviewed and upheld by the Supreme Court and is consistent with the spirit of the constitutional statutes.
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Frequently asked questions
The Canadian Constitution is hard to amend because of the requirements and procedures that need to be satisfied for an amendment to be passed.
For an amendment to be passed, it must be approved by the House of Commons, the Senate, and a minimum of seven provincial legislatures, which must represent at least 50% of the total population of all the provinces. This is known as the 7/50 rule.
Some topics that would require an amendment include changing the role of the monarch, changing the use of English or French in Canada, or changing the amending procedures themselves.
There are four amending procedures. The first is the general formula, which requires the approval of the House of Commons, the Senate, and at least seven provincial legislatures. The other three procedures are used when an amendment does not affect all provinces, and only the affected governments need to agree.
Yes, there have been several amendments to the Canadian Constitution since it was patriated in 1982. Amendments have been made regarding provincial schooling in Newfoundland and Quebec, and the name change of Newfoundland to Newfoundland and Labrador. There have also been thirteen amendments to the Constitution since it was amended in 1982, most of which have been limited in scope.
