Reputedly Unamendable Yet Frequently Amended

The Constitution of Canada has gained a reputation for having become unamendable and ossified since 1992 when Canadians rejected the proposed Charlottetown Accord in a country-wide referendum and brought the era mega-constitutional amendment to a grinding halt. This question consumed Canada from the early 1970s to the early 1990s and scared the generations that went through this trauma. They have ever since resigned themselves to accepting this constitutional paralysis and dare not break this uneasy truce. They often speak of amending the constitution as “Opening the Constitution” with audible capital letters yet in hushed tones, with the obvious allusion to opening Pandora’s Box and unleashing havoc hanging over any such reluctant conversation like the Sword of Damocles. This has become of the most toxic and bizarre taboo of Canadian political culture over the last thirty years, not least because it presents a false narrative which limits the concept of “constitutional amendment” — or the obscene blasphemy of “opening the constitution” — to two of the five amending procedures, as if the other three procedures and the constitutional amendments proimulgated under them didn’t exist and didn’t count for anything. This false, or at least exaggerated, narrative also stifles legitimate debate and makes Canada seem like a less serious country that can’t even pass uncontroversial housekeeping amendments.

While we have thus far fallen short of Unanimity with the failures of the Meech Lake Accord in 1990 and the Charlottetown Accord in 1992, we nevertheless amended the Constitution of Canada under General Amending Procedure once, in 1983,[1] and we have amended it many times under the three other amending procedures contained in Sections 43, 44, and 45 of the Constitution Act, 1982.

For example, Parliament has already enacted two constitutional amendments under the Section 44 Procedure to modify the Representation Formula contained in section 51(1) of the Constitution Act, 1867, most recently in December 2011 through An Act to Amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act, and the Canada Elections Act.[2] I enjoyed mentioning this particular constitutional amendment in the debates on electoral reform in 2016, especially when pro-reform politicians and grandees kept insisting that electoral reform and how MPs represent Canadians had “nothing to do with the constitution”; I had great fun with it especially at an event in November 2016. And Parliament now seems poised once more to pass another Section 44 Constitutional Amendment to alter the Representation Formula through Bill C-14, which you will note also goes by the title An Act to Amend the Constitution Act.[3] The House of Commons debated this legislation at Second Reading just last night, and Parliament should pass it at some point in 2022, perhaps even before the summer recess. Furthermore, the provincial legislatures have doubtless undertaken many amendments to their provincial constitutions under the Section 45 Amending Procedure as well since 1982.

And as of May 2022, we have now promulgated eight constitutional amendments under the Section 43 Amending Procedure, for propositions affecting some but not all provinces. Constitutional amendments under Section 43 have abolished Quebec’s denominational school system,[4] affirmed the equality of New Brunswick’s English and French linguistic communities,[5] replaced the guaranteed ferry service to Prince Edward Island with a fixed link that became the Confederation Bridge,[6] twice altered and then later abolished altogether Newfoundland’s denominational schools,[7] added Labrador to the official name of Canada’s tenth province,[8] and abolished the Canadian Pacific Railway’s tax exemptions in Saskatchewan retroactively to 1966.[9]

This multilateral amending procedure requires concurring resolutions of the House of Commons, Senate, and legislative assembly of the province concerned; so far, all 8 have only involved bilateral concurrence between Ottawa and one province, though such an amendment could involve more than one province.

My latest article in the Journal of Parliamentary and Political Law focuses on the penultimate Section 43 Amendment from 2001.

My Article in the Journal of Parliamentary and Political Law and the Section 43 Amending Procedure

Last fall, I prepared an article on what remained until last week the most recent constitutional amendment promulgated under the Section 43 Amending Procedure, the Constitution Amendment, 2001 (Newfoundland and Labrador), which formally changed the name of Newfoundland to Newfoundland and Labrador. And by a curious quirk of fate, the very same night in February that I was editing the proofs of my manuscript “What’s In a Name? Newfoundland & Labrador and the Constitution Amendment, 2001” for the Journal of Parliamentary and Political Law, the House of Commons adopted its concurring resolution for the Constitution Amendment, 2022 (Saskatchewan Act), which entered into force on 9 May 2022. I frantically edited my proofs yet again and deleted all my references to the Constitution Amendment, 2001 as the “most recent” or “latest” constitutional amendment under the Section 43 Amending Procedure. Even though the Legislative Assembly of Saskatchewan had initiated the first resolution in November 2021, it escaped my notice until the House of Commons and Senate started debating their concurring resolutions.

I could have written this article on the Constitution Amendment, 2001 at any time since embarking on my scholarly journey eleven years ago, yet the first Section 43 amendment in twenty-one years happened to begin shortly after I submitted my manuscript, and it entered into force roughly the same week as the latest issue of the Journal of Parliamentary and Political Law containing my article went to press. Serendipity has blessed what I intended as an obscure and fun historical piece with new relevance. I should like to write a similar article on the Constitution Amendment, 2022 (Saskatchewan Act); it might seem redundant but for the heightened scrutiny to which the Senate subjected its concurring resolution at committee. The Constitution Amendment, 2001 sailed through the House of Assembly of Newfoundland and Labrador, the House of Commons of Canada, and the Senate of Canada, but the Senate bogged down in the Constitution Amendment, 2022 in committee for a few weeks before finally adopting its concurring resolution. The latter amendment also generated more controversy and serious opposition than its predecessor from 2001.

The Constitution Amendment, 2001 (Newfoundland and Labrador) officially changed the name of ‘‘Newfoundland” to ‘‘Newfoundland and Labrador.” It did so by amending the Newfoundland Act, 1949 constitutionally entrenched as item 21 in the schedule to the Constitution Act, 1982. Formerly known as the British North America Act 1949, this item contains the Terms of Union of Newfoundland with Canada and re-named them the Terms of Union of Newfoundland and Labrador with Canada.

In this case, the process occurred along the following timeline:

1. 29 April 1999: the House of Assembly of Newfoundland and Labrador passed a motion for the constitutional amendment;[10]
2. 30 October 2001: the House of Commons adopted a concurring resolution;[11]
3. 20 November 2001: the Senate adopted its concurring resolution;[12]
4. 6 December 2001: Cabinet presented Order-in-Council PC 2001-2236 directing the Governor General to issue the proclamation promulgating the constitutional amendment into force; and,[13]
5. 6 December 2001: Governor General Adrienne Clarkson issued Proclamation SI/2001-117, which amended the Constitution of Canada and officially changed the name of the province from “Newfoundland” to “Newfoundland and Labrador.”[14]

Rejecting the Legacy of 1992 

Eventually, politicians of my generation and those younger will finally confront head on and destroy the taboo that the Silent Generation and the Soixante-Huitard Boomers entrenched in Canadian political culture after 1992, which holds that we must never propose serious amendments to the Constitution of Canada and that we must fear the very concept of constitutional amendment. Their view probably depends not on universal truths but instead upon an unusual set of peculiar and contingent circumstances which converged between 1968 and 1995 or so but which have now evolved and moved on, such as strong executive federalism coupled with the initial push for Patriation coincident to a rise in secessionism in Quebec and a counter-vailing dialogue between federalist forces in Quebec and the other provinces that has now all but faded into oblivion as the Two Solitudes have gone their separate ways. And purely as a matter of fact, we have already actively employed three of the five amending formulas over the last thirty years, and as a matter of necessity, we must conduct some housekeeping from time to time; section 67 of the Constitution Act, 1867 comes to mind here, and preventing the Offices of Lieutenant Governor from becoming vacant upon the death or resignation of a Lieutenant Governor would require unanimity.

In addition, Scott Reid tabled a resolution for constitutional amendment under the General Amending Procedure in 2014, and rather than erupting into an existential crisis, no one noticed it at all.[15] Furthermore, the Legislative Assembly of Saskatchewan, on the initiative of Premier Brad Wall, actually approved a motion calling for the outright abolition of the Senate of Canada in November 2013 in the midst of the Senate Expenses Scandal.[16] While the Assembly did not present this motion as one in a series of concurring resolutions for constitutional amendment, but more as an expression of Western alienation, this also received little to no media attention and caused nary a stir in Ottawa. Far from tearing the country apart, this motion and the constitutional amendment that it implied simply went nowhere. Even many of us who follow these issues more closely than most Canadians probably didn’t think much of or even know about these two examples from seven and eight years ago. These two stalled proposals merely show that multilateral constitutional amendments under the General and Unanimity Amending Procedures can live or die on their own merits and do not necessarily become swept up into a larger existential crisis, as with the Meech Lake Accord and Charlottetown Accord of an earlier era.

Similar Posts: 

• The Amending Procedures of the Constitution of Canada

Notes

[1] Constitutional Amendment Proclamation, 1983, SI /84-102. Constitutional historian James Ross Hurley recounts that this amendment under the General Amending Formula came about because section 37 of the Constitution Act, 1982 mandated that a First Ministers’ Conference be convened before 17 April 1983 to identify and proclaim aboriginal rights within the Constitution. The federal and provincial governments agreed in principle to a Constitutional Accord on Aboriginal Rights in March 1983, and the legislative assemblies of all provinces — except Quebec, where the Levesque government had decided to abstain from these multilateral amendments — passed concurring resolutions in support of this amendment between May and December 1983. Governor General Jeanne Sauvé proclaimed the amendment on 21 June 1984. As Hurley explains, this constitutional amendment bolstered Section 35 Rights so that they apply to “existing and future land claims agreements” and included a proviso applying aboriginal and treaty rights equally to men and women. James Ross Hurley, Amending Canada’s Constitution: History, Processes, Problems, and Prospects (Ottawa: Minister of Supply and Services Canada, 1996) at 90-92.

[2] An Act to Amend the Constitution Act, 1867, The Electoral Boundaries Readjustment Act, and the Canada Elections Act, SC, 2011, c. 26.

[3] An Act to Amend the Constitution Act, 1867 (Electoral Representation), Bill C-14, 44^th Parliament, 1^st Session, 2021-2022 (First Reading, 22 March 2022).

[4] Constitution Amendment, 1997 (Quebec), SI/97-141.

[5] Constitution Amendment, 1993 (New Brunswick), SI/93-54.

[6] Constitution Amendment, 1993 (Prince Edward Island), SI/94-50.

[7] Constitution Amendment, 1987 (Newfoundland Act), SI/88-11; Constitution Amendment, 1997 (Newfoundland Act), SI/97-55; Constitution Amendment, 1998 (Newfoundland Act), SI/98-25.

[8] Constitution Amendment, 2001 (Newfoundland and Labrador), SI/2001-117.

[9] Constitution Amendment, 2022 (Saskatchewan Act), SI/2022-25.

[10] Newfoundland and Labrador, House of Assembly Proceedings, 44th General Assembly, 1st Session, Volume XLIV, No. 14 (29 April 1999).

[11] Canada, House of Commons Debates, 37th Parliament, 1st Session, Volume 137, Number 195 (30 October 2001) at 6707.

[12] Canada, Debates of the Senate, 37th Parliament, 1st Session, Volume 139, Number 67 (6 November 2001) at 1722.

[13] Canada, Privy Council Office, P.C. 2001-2236: Order directing that a PROCLAMATION do issue amending the CONSTITUTION OF CANADA to replace the words “Province of Newfoundland” with “Province of Newfoundland and Labrador”, 6 December 2001.

[14] Constitution Amendment, 2001 (Newfoundland and Labrador), SI/2001-117.

[15] Scott Reid, “M-488”, in House of Commons, Notice Paper, no. 35, 41^st Parliament, 2^nd Session, 27 January 2014, at page 17.

WHEREAS the Power of the Queen in Council under section 56 of the Constitution Act, 1867, to disallow Acts of the Parliament of Canada is not compatible with Canada’s status as a Sovereign State, and has therefore fallen into Desuetude;

WHEREAS the Power of the Queen in Council under section 57 of the Constitution Act, 1867, to deny Assent to Bills of the Parliament of Canada is not compatible with Canada’s status as a Sovereign State or with the direct Relationship between the Queen, the Parliament of Canada, and the Queen’s Canadian Ministers that exists under the terms of the Statute of Westminster, 1931, and has therefore fallen into Desuetude;

AND WHEREAS the Power of the Governor General under section 90 of the Constitution Act, 1867, to disallow Acts of the Legislatures of the several Provinces and the power of the Lieutenant Governors of the Provinces to reserve Bills of the legislatures of the several provinces for the signification by the Governor General of the Queen’s Pleasure are powers that are not compatible with the political maturity that has been attained by the Provinces of Canada, and have therefore fallen into Desuetude;

NOW, THEREFORE, the House of Commons resolves that His Excellency the Governor General be authorized to issue a proclamation under the Great Seal of Canada in accordance with the schedule hereto:

SCHEDULE AMENDMENT TO THE CONSTITUTION OF CANADA
1. The Constitution Act, 1867, is amended by deleting section 56.
2. The Constitution Act, 1867, is amended in section 57 by deleting the following words: “in Council”.
3. (1) The Constitution Act, 1867, is amended in section 90 by deleting the following words: “the Disallowance of Acts, and the Signification of Pleasure on Bills reserved,”.
(2) The Constitution Act, 1867, is amended in section 90 by deleting the following words: “and for a Secretary of State, of One Year for Two Years,”.
4. This amendment may be cited as the Constitution Amendment, 2014 (Disallowance and Reservation) and a reference to the Constitution Acts, 1867 to 1982, shall be deemed to include a reference to the Constitution Amendment, 2014 (Disallowance and Reservation).

[16] Brad Wall (Premier), “Government Motions: Abolition of the Senate of Canada,” in Legislative Assembly of Saskatchewan, Debates and Proceedings, 27^th Legislature, 3^rd Session, 6 November 2013, at pages 3879-3883. Wall tabled a motion “That This Assembly supports the abolition of the Senate of Canada,” and it carried. The Government House Leader Jeremy Harrison then moved the following motion, which also carried:

“That the Speaker, on behalf of the Legislative Assembly, transmit copies of the motion and verbatim transcripts of the motion just passed to the Prime Minister of Canada and the leaders of the opposition parties in the House of Commons, as well as the premier of each Canadian province and territory.”

Jeremy Harrison (Government House Leader), “Government Motions: Abolition of the Senate of Canada,” in Legislative Assembly of Saskatchewan, Debates and Proceedings, 27^th Legislature, 3^rd Session, 6 November 2013, at page 3897.