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Amending Formula

An ‘amending formula’ is a set of rules for making changes to the Constitution. Canada’s constitutional amendment formula has been the subject of tortuous debate for generations. When Canadians have debated constitutional amendment they have as often as not debated the ‘amending formula’. This debate was only partly resolved by the entrenchment of an ‘amending formula’ in the Constitution Act, 1982. Canada does not have only one constitutional amending procedure; rather, it has several formal and informal procedures. There are eight formal procedures set out in the Constitution, each one designated for a certain kind of constitutional amendment, and three informal procedures.

The formal procedures are set out in sections 35.1 and 38-49 (inclusive) of the Constitution Act, 1982, and will be described in turn.

The first is the general – or 7/50 – amending procedure. It requires resolutions of the Senate and House of Commons and resolutions of at least seven provincial legislatures representing at least fifty percent of the Canadian population. This procedure is to be used, among other things, for amendments relating to the principle of proportionate representation in the House of Commons, some matters relating to the Senate and Supreme Court of Canada, and the establishment of new provinces.

Second, there is an opting out formula. If an amendment using the above procedure “derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province” (section 38(2)), one or more provinces not ratifying the amendment can by express resolution opt out of the amendment. That amendment will then not apply to the province(s) so opting out.

Third, in cases where an amendment (using the 7/50 procedure) proposes to transfer “provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament,” (section 40), one or more provinces may opt out of the application of the amendment as in the second formula; but additionally, those provinces opting out are eligible to receive “reasonable compensation” from the federal government.

Fourth, in cases of amendments relating, among other things, to the Queen or her Canadian representatives, the composition of the Supreme Court of Canada, or changes to the amending formula itself, then the unanimity rule applies: resolutions must be passed by both houses of Parliament and by every provincial legislature.

Fifth, in cases where an amendment, (for example, the alteration of provincial boundaries) affects one or more provinces but not all of them, then resolutions to that effect must be passed by both houses of Parliament and by the legislatures of the provinces affected by the amendment.

Sixth, amendments relating to the “Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons” (section 44) are passed in the form of legislation by the Parliament alone.

Seventh, the constitution of a province may be amended by legislation passed by the provincial legislature concerned.

Finally, under section 35.1 of the Constitution Act, 1982, federal and provincial governments are required to consult with representatives of the Aboriginal peoples of Canada prior to passing amendments that affect them.

In addition to these formal procedures, a variety of informal mechanisms exist. These become all the more important when political actors consider the formal procedures rigid and unworkable. Incremental constitutional change can be achieved by judicial interpretation of existing constitutional provisions. A notable recent example is the Supreme Court of Canada’s discussion of the constitutional obligation on all parties to Confederation to negotiate secession if a clear majority of the population of Quebec vote in favour of a clear question on independence (see Secession reference, Re Secession of Quebec, [1998] 2 S.C.R. 217). Legislation can be passed to alter constitutional rules. For example, the ‘amending formula’ has been supplemented by legislation requiring referenda before the formal procedures are undertaken.

The Charlottetown Accord is one illustration of this. In 1996, Parliament passed legislation imposing a regional veto formula on the 7/50 rule. The law stipulates that the federal government will not proceed with proposed amendments under the 7/50 rule unless Quebec, Ontario, British Columbia, half of the Atlantic provinces representing at least fifty percent of that region’s population, and a majority of the prairie provinces representing at least fifty percent of that region’s population, first sign on. Finally, constitutional conventions can alter, or in substance, repeal constitutional provisions. By using this means, for example, the federal power of disallowance (see reservation and disallowance) has become a dead letter.

A final distinction must be made between small and large amendment packages. Most amendments deal with one or two discrete changes to the Constitution. In most such cases the choice of formal procedure to be used is obvious. In some cases involving a large set of proposed amendments which trigger more than one of the above described formal amendment procedures, the most stringent rules attaching to each procedure apply to the whole package. For example, the Meech Lake Accord involved amendments triggering both the 7/50 and unanimity procedures. The 7/50 rule requires that no amendment can be proclaimed after three years have expired from the date of the first legislative proclamation. The unanimity rule contains no such time limit. Political actors in the Meech Lake debate understood however, that the consent of all provinces was required within three years of Quebec’s proclamation in order for the Accord to pass. In the end, Meech Lake fell two provinces short of unanimity when the three-year period elapsed.

Sources:

• J.R. Hurley, Amending Canada’s Constitution: History, Processes, Problems and Prospects (Ottawa: Minister of Supply and Services, 1996).
• Constitution Act, 1982, sections 35.1, 38-49.