Constitutional Amendment, 1867?1982

• Author: Patrick J. Monahan, Byron Shaw
• Pages: 165-187

165

CHA PTER 5

Constitutional

amEndmEnt, 1867–1982

A. A MENDMENT OF THE

BRITISH NORTH

AMERICA ACT, 1867

, BY THE BRITISH

PAR L I A MEN T

The British North America Act, 1867,1 did not contain a general amend-

ing procedure. However, as an ordinary U.K. statute, the BNA Act could

be amended by the British Parliament, just as the previous “constitu-

tional” statutes applicable to British North America had been repealed

or amended by Westminster.2 However, unlike the constitutional ar-

rangements established by Westminster for Australia and South Africa

a generation later, the BNA Act did not provide any mechanism for Can-

ada to amend the statute without the intervention of Britain. Between

1867 and 1982 the British Parliament amended the BNA Act twenty-one

times.3 In addition, the British Parliament enacted a number of other

1 The British North Amer ica Act, 1867 (now the Constitution Act, 1867 (U.K.), 30 &

31 Vict., c. 3).

2 Namely, the Quebec Act, 1774 (U.K.), 14 Geo III, c. 83, the Constitutional Act,

1791 (U.K.), 31 Geo. III, c. 31, and the Union Act, 1840 (U.K.), 3 & 4 Vict., c. 35,

discus sed in Chapter 2.

3 The amendments unt il 1965 are described in G. Favre au, The Amendment of the

Constitution of Canada (Ottawa: Queen’s Printer, 1965). In addition to amend-

ments by Westmi nster to the Act itself, the Br itish government admitted ne w

provinces to C anada through the enact ment of orders in council. See the d is-

cussion below at se ction B(1).

Constitutiona l law

166

statutes of a constitutional nature that applied to Canada, such as the

Statute of Westminster, 1931.4

Until 1982, the formal legal power of the British Parliament to

amend the BNA Act was unlimited. However, each amendment to the

BNA Act was preceded by a prior request from Canada. As explained

below, by the late nineteenth century, a constitutional convention had

developed such that Britain would not enact laws applicable to Canada

except on the request and with the consent of Ca nada. This convention

was given the force of law in section 4 of the Statu te of Westmin ster, 1931,

which provided that no future Briti sh statute would apply to Canada

unless it expressly declared that Canada had requested and consented

to its enactment.5 However, section 4 did not apply to the amendment

of the BNA Act itself. Consequently, until 1982, limitations on the legal

power of the Westminster Parliament to amend the BNA Act continued

to be based entirely on constitutional convention.

B. POWERS OF A MENDMENT IN THE

BNA

ACT

Although t he BNA Act did not contain a general amending procedure,

the Act did include a number of limited powers of amendment. Some

of these amending powers were included in the original enactment in

1867; others were added later. The three bodies empowered to amend

the BNA Act were the British Cabinet, the Parliament of Canada, and

the legislatures of the prov inces.

1) Amendments by the British Cabinet: Admission of New

Provinces

In 1867, Canada included only a small portion of the lands that now

make up the country. The original BNA Act divided Canada into the

four provinces of Ontario, Quebec, Nova Scotia, and New Brunswick.6

4 (U.K.), 22 & 23 Geo. V, c. 4.

5 Section 7 of the Stat ute of Westminster, 1931, stated that it did not appl y to the

amendment of the BNA A ct. Of course, the residu al legal power of the U.K. Parlia-

ment to enact any law for C anada, including amend ments to the BNA Act, was

abolished by the Ca nada Act 1982 (U.K.), 1982, c. 11. See di scussion in this ch ap-

ter below at section D.

6 See s. 5 of the Constitution Act, 1867. New Brunsw ick and Nova Scotia retained

their pre-Confe deration boundaries, whi le the province of Canada wa s divided

into the provinc es of Ontario and Quebec.