Constitutional Amendment in Canada.

• Author: Russell, Peter
• Position: Book review

Constitutional Amendment in Canada, Emmett Macfarlane, ed., University of Toronto Press, Toronto, 2016, 337 pp.

Canada has a very complex system of amending its formal, written Constitution. This collection of essays edited by Emmett Macfarlane is a welcome guide to its intricacies.

Is the complexity of our amending system an instance of Canadian exceptionalism? None of the authors take up that question. My own hunch is that the complexity of the so-called amending "formula" reflects the centrality of accommodation in Canada's constitutional culture. "Striking a balance," the key phrase in Macfarlane's introduction, captures the idea. Nadia Verrelli's opening chapter tells us how the formula evolved over a 115-year journey to the final set of rules that were adopted in the Constitution Act, 1982, the amendment to the Constitution that achieved patriation.

The constitutional amending formula is set out in Part V of the Constitution Act, 1982. It begins with the "general procedure," requiring resolutions of both houses of Parliament and resolutions of the legislative assemblies of at least two-thirds of the provinces (seven of 10) that have at least 50 per cent of the population. Once the requisite number of resolutions has been secured, the amendment is effected by a proclamation issued by the Governor-General.

That seems simple enough, until you look at the conditions attached to the general procedure. A dissenting province can opt out of an amendment made under the general procedure if it reduces its powers, rights or privileges. If the amendment is in the fields of education or culture, the province opting out is entitled to fiscal compensation. Another section of the formula lists changes to federal institutions and the structure of the federation, including the addition of new provinces, to which the opt-out does not apply.

The general procedure that was the focus of much constitutional bargaining over many years has been used only once. That was the Constitutional Amendment Proclamation, 1983 which made two additions to the recognition of aboriginal and treaty rights in section 35 of the Constitution Act, 1982, one to confirm that land claims agreements are treaties and another to ensure that the constitutionally protected rights of Aboriginal peoples apply equally to men and women. Only Quebec did not support the amendment. But it did not (and probably could not) opt out.

The formula sets out four other ways of amending the...