Constitutional Amendment, 1867-1982

AuthorPatrick J. Monahan/Byron Shaw/Padraic Ryan
AMENDMENT, 1867–1982
The British North Amer ica 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tional” statutes applicable to British North America had been repealed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 Afr ica
a generation later, the BNA Act did not provide any mechanism for Can-
ada to amend the statute without the inter vention 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 Ame rica 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 Constitutio n of Canada (Ottawa: Queen’s Printer, 1965). In addition to
amendments by West minster to the Act itsel f, the British government adm itted
new provinces to C anada through the enact ment of orders in council. See the
discus sion below at Section B(1).
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 conse nt of Canada. This convention
was given the force of law in section 4 of the Statu te of Westminster, 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.
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 provinces.
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
In addition, the 1867 boundaries of Ontario and Quebec comprised
4 (U.K.), 22 & 23 Geo. V, c. 4.
5 Section 7 of the Statut e of Westminster, 1931 stated that it did not apply to the
amendment of the BNA A ct. Of course, the residua l legal power of the U.K.
Parliament to en act any law for Canada, includi ng amendments to the BNA Act,
was abolished b y the Canada Act 1982 (U.K.), 1982, c. 11. See discu ssion in this
chapter below at Sect ion D.
6 See s. 5 of the Constitution Act, 1867. New Brunswick and Nova Scot ia retained
their pre-Confe deration boundaries, whi le the province of Canada wa s divided
into the provinc es of Ontario and Quebec.

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