Section 42 provides that for amendments falling into six classes,34the amendment shall be made "only in accordance with subsection 38(1)." Further, section 42 states that the opting out provisions in section 38 do not apply to amendments enacted under section 42. By implication, this also excludes the possibility of any claim for compensation under
section 40, since the dissent right under section 38(3) is a prerequisite to a claim for compensation.
While some of the categories enumerated in section 42 appear relatively straightforward, a number of ambiguities have been raised by commentators in relation to certain provisions. For example, section 42(1)(d) refers to amendments in relation to the "Supreme Court of Canada." Section 42(d) also states that it is subject to section 41(d), which requires unanimous consent for amendments in relation to the "composition of the Supreme Court of Canada." The difficulty that has been raised in relation to section 42(1)(d), as well as in relation to section 41(c), is that the Supreme Court Act is not referred to in the schedule of enactments included within the definition of the Constitution of Canada in section 52. Professor Hogg has argued that since the section 52 schedule does not include the Supreme Court Act, the federal Parliament may make changes to the Supreme Court without satisfying the conditions of section 42.
As discussed above, the difficulty with this analysis is that it would render section 42(1)(d) completely ineffective in terms of protecting provincial interests in relation to the Supreme Court. Indeed, the result of Hogg’s analysis is that Parliament’s unilateral power to make fundamental changes to the Court’s powers or composition cannot be constrained in the future unless at least seven, and perhaps all ten, provinces agree.35This result seems particularly implausible when it is recalled that section 42(1)(d) was based on the Vancouver formula proposed by eight provincial leaders in the spring of 1981. The underlying purpose of the Vancouver formula was to constrain unilateral federal powers to effect constitutional change, rather than to constitutionally entrench such unilateral federal powers. In our view, section 42(1)(d) should be interpreted in a manner consistent with this underlying intention. Such a purposive interpretation would support the conclusion that section 42(1)(d) must operate so as to limit, in some fashion, the ability of the federal Parliament to effect changes to the Supreme Court without the consent of the provinces.36
If section 42(1)(d) operates to limit Parliament’s ability to effect unilaterally changes to the Supreme Court, what is the precise nature and extent of those limits? As Scott has pointed out, the Supreme Court Act and the Rules of the Supreme Court of Canada promulgated pursuant to that Act include provisions dealing with such minutiae as the colour of the covers of the appellants’ and the respondents’ factums.37Even assuming that section 42(1)(d) should not be interpreted in such a way as to render it nugatory, it seems equally implausible to interpret it as having constitutionally entrenched such minutiae. The middle ground between these extreme positions is to interpret section 42(1)(d) as having constitutionally entrenched only those key characteristics of the Supreme Court that implicate fundamental provincial interests.38Such key characteristics would include the status...