A. Amendments to the Constitution of Canada

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 188-193

Page 188

Part V of the Constitution Act, 1982,¹sets out a procedure for amending the Constitution of Canada. As noted in Chapter 1, the term "Constitution of Canada" is defined in section 52 of the Constitution Act, 1982. Section 52 also states that any amendments to the Constitution of Canada "shall be made only in accordance with the authority contained in the Constitution of Canada." Section 52 does not expressly state that Part V represents an exhaustive source of authority for amending the Constitution of Canada, but it is not clear that there are any other powers of amendment.²In any event, Part V deals comprehensively with all aspects of the amendment of the Constitution of Canada.

Page 189

The definition of the Constitution of Canada set out in section 52(2) includes the Constitution Act, 1867, the Canada Act 1982, the Constitution Act, 1982, and a detailed list of Acts and orders referred to in a schedule (see Table 6.1).

Table 6.1 Canada’s Written Constitution

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Page 190

The enactments falling within this definition represent Canada’s "written constitution," in the sense that they are supreme over all other Canadian law and can be amended only by the procedures established by the Constitution of Canada.

There are, however, many statutes and other constitutional rules that are not included in the definition of the Constitution of Canada in section 52(2). These "unentrenched" documents include all the pre-Confederation constitutional documents such as the Royal Proclamation of 1763, the Constitution Act, 1791, and the Union Act, 1840 that were reviewed in Chapter 2. Constitutional conventions, ordinary statutes of an organic character, and treaties with Aboriginal peoples are likewise not included in the definition of the Constitution of Canada set out in section 52 (see Table 6.2).

Table 6.2 Canada’s Unwritten Constitution

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Since these statutes and rules are not part of the Constitution of Canada, they are not subject to the amending procedures in Part V of the Constitution Act, 1982. For example, the conventions of responsible government that define the circumstances in which the powers and prerogatives of the queen and the governor general can be exercised are not part of the Constitution of Canada. Therefore, section 41(a) of Part V - which states that amendments to the Constitution of Canada in relation to the office of the queen or the governor general require the

Page 191

unanimous consent of the provinces and Parliament - does not apply to changes to...