Constitutional Amendment in Canada

Introduction

The constitutional amendment process in Canada is governed by Part V of the Constitution Act, 1982 (ss. 38–49), which codified for the first time a domestic amending formula, ending the practice of requesting amendments from the Parliament of the United Kingdom. The amending formula is among the most complex in the world, reflecting the federal bargain that produced the 1982 patriation settlement: it requires varying degrees of federal and provincial consent depending on the subject matter of the proposed amendment. The formula’s design — combining general, bilateral, unanimous, and unilateral amendment procedures — represents a compromise between national unity and provincial diversity. Since 1982, no amendment to the division of powers has succeeded, though several amendments have been adopted using the unilateral and bilateral procedures.

Historical Background: Amendment Before 1982

Prior to 1982, the Constitution Act, 1867 contained no domestic amending formula. Amendments affecting federal institutions and matters of “merely Canadian” concern were effected by a joint address of the Senate and House of Commons to the Imperial Parliament, requesting enactment of the necessary amendment by UK statute. This practice operated by constitutional convention and was invariably honoured. Amendments affecting provincial jurisdiction (e.g., unemployment insurance in 1940, old age pensions in 1951 and 1964) were preceded not only by a joint address but by the consent of all provinces identified by the Saskatchewan reference formula (a convention that provincial consent was required for amendments affecting provincial powers). The Statute of Westminster, 1931 (22 & 23 Geo. V, c. 4) gave Canada full legislative autonomy over matters within its competence but specifically excluded the power to amend the British North America Acts, which remained subject to Imperial authority until 1982.

The General Amending Formula: Section 38

Section 38(1) establishes the general amending formula, applicable to amendments to the Constitution of Canada that do not fall within ss. 41, 43, 44, or 45. The formula requires:

1. A resolution of the Senate and the House of Commons; and
2. Resolutions of the legislative assemblies of at least two-thirds of the provinces (i.e., at least seven of ten provinces) that represent, in the aggregate, at least 50% of the population of all provinces.

This is the “7/50” formula. The general formula applies to amendments concerning: the federal institutions (the House of Commons, the Senate, the Supreme Court of Canada, the federal executive); the Canadian Charter of Rights and Freedoms (with certain exceptions under s. 41); the division of powers between Parliament and the provinces; and other matters not specifically assigned to other amendment procedures.

Section 38(2) permits a province to opt out of an amendment that derogates from its legislative powers, proprietary rights, or other rights, provided the amendment is passed under s. 38(1) rather than under the unanimity formula of s. 41. An opting-out province is not bound by the amendment. Section 38(3) provides that where an amendment transfers provincial legislative powers to Parliament, reasonable compensation must be paid to opting-out provinces.

Unanimous Consent: Section 41

Section 41 requires the consent of the Senate, the House of Commons, and all provincial legislative assemblies for amendments to:

1. The office of the Queen, the Governor General, and the Lieutenant Governor (s. 41(a));
2. The right of a province to a number of members in the House of Commons not less than the number of senators to which the province was entitled at the time of the 1982 Constitution (s. 41(b)) — essentially preserving Quebec’s representation floor;
3. The use of the English or French language, subject to the bilateral procedure for s. 43 amendments (s. 41(c));
4. The Supreme Court of Canada (s. 41(d)) — including its composition, though not necessarily its other attributes (Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21);
5. The amending formula itself (s. 41(e)).

The unanimity procedure is the most demanding, reflecting the fundamental nature of the matters it protects. It has never been successfully invoked since 1982.

Bilateral and Multilateral Amendments: Sections 43

Section 43 provides for amendments affecting one or more but not all provinces. Such amendments require resolutions of the Senate, the House of Commons, and the legislative assembly of each province to which the amendment applies. Section 43 amendments have been used for changes to provincial boundaries, the alteration of denominational school rights in specific provinces, and adjustments to provincial powers affecting a single province.

The most significant s. 43 amendments include: the amendment of s. 93 of the Constitution Act, 1867, to permit the secularization of Newfoundland’s denominational school system (1997, following a provincial referendum); the amendment of the Manitoba Act, 1870, to recognize the linguistic duality of Manitoba (1993, following the Reference re Manitoba Language Rights, [1985] 1 SCR 721); and amendments to the Constitution of Canada in relation to Prince Edward Island’s fixed-link bridge (Confederation Bridge).

Federal Unilateral and Provincial Unilateral Amendments

Section 44 permits the federal Parliament to amend the Constitution of Canada in relation to the federal executive and the Senate and House of Commons, subject to ss. 41 and 42. This procedure has been used for amendments affecting the Senate, the House of Commons, and federal electoral boundaries — including amendments providing for Senate term limits and consultative elections (though these were successfully challenged in Reference re Senate Reform, 2014 SCC 32, which held that fundamental Senate reform requires the general amending formula because the Senate’s essential characteristics were protected by constitutional convention and the architecture of the 1982 settlement).

Section 45 permits each provincial legislature to amend the constitution of the province, including its legislative institutions and executive government. This procedure has been used for changes to provincial electoral systems, the abolition of provincial upper houses, and adjustments to provincial executive authority.

The Role of the Senate

The amending formula requires resolutions of the Senate as well as the House of Commons for most amendments. However, s. 47 permits the House of Commons to proceed without Senate approval if the Senate fails to adopt a resolution within 180 days of the House’s resolution, subject to certain limitations. This override does not apply to amendments requiring unanimous consent under s. 41.

Constitutional Conventions and the Amendment Process

The constitutional conventions that developed around the amendment process before 1982 continue to influence the political practice of constitutional amendment. The Supreme Court’s decision in Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753 (the Patriation Reference) established that a constitutional convention required substantial provincial consent for amendments affecting provincial powers — a convention incorporated into the s. 38 general formula. The convention of federal-provincial consultation before initiating amendments continues to shape the political dynamics of constitutional change.

Failed Amendment Attempts

The amending formula’s demanding thresholds have contributed to the failure of major constitutional reform proposals. The Meech Lake Accord (1987–1990) — a package of amendments recognizing Quebec as a “distinct society,” expanding provincial powers over immigration and Supreme Court appointments, and providing for provincial participation in Senate appointments — failed to secure ratification by all provinces within the three-year period (it was ratified by eight provinces but blocked by the Manitoba and Newfoundland legislatures). The Charlottetown Accord (1992) — a more comprehensive package addressing Aboriginal self-government, Senate reform, the distinct society clause, and social charter provisions — was defeated in a national referendum (54.4% opposed). No constitutional amendment has been attempted since 1992.

Successful Amendments Since 1982

Since 1982, the following amendments have been adopted:

• 1983: Amendment to s. 35 clarifying land claims agreements as treaties, gender equality, and constitutional conference obligations (s. 38, general formula);
• 1993: Amendment to the Manitoba Act, 1870 (s. 43, bilateral);
• 1997: Amendment to s. 93 regarding Newfoundland denominational schools (s. 43, bilateral — following Reference re Amendment of the Constitution to Term 17, 1997);
• 1997–1998: Amendments to s. 93 regarding denominational school rights in Quebec (s. 43, bilateral);
• 2001: Amendment to the Constitution Act, 1867, to permit Prince Edward Island’s fixed-link bridge (s. 43, bilateral);
• 2011: Amendment to s. 51 of the Constitution Act, 1867, to adjust House of Commons seat distribution (s. 44, federal unilateral — though it effectively operates as a federal-provincial agreement given its impact on provincial representation).

Conclusion

The Canadian amending formula reflects the federal principle: different matters require different degrees of consensus. The 7/50 formula ensures that both provincial identity and population weight are respected; the unanimity formula protects the most fundamental constitutional structures; and the bilateral and unilateral formulas accommodate less consequential changes. The formula’s demanding thresholds have ensured stability but have also made major reform nearly impossible, raising questions about whether the Constitution can adapt to evolving circumstances. The absence of a general “constitutional referendum” process (Canada has no mandatory national referendum requirement) leaves the amendment process primarily in the hands of legislative assemblies, though the Charlottetown Accord experience demonstrates that governments may choose to subject their amendments to popular ratification.