Constitutional Change Since 1982

• Author: Patrick J. Monahan, Byron Shaw
• Pages: 188-238

188

CHA PTER 6

CONSTITUTIONAL

CHANGE SINCE 1982

A. AMENDMENTS TO THE CONSTITUTION

OF CANADA

Part V of the Constitution Act, 1982,1 sets out a procedure for amending

the Constitution of Canada. A s noted in Chapter 1, the term “Consti-

tution of Canada” is def‌ined in section 52 of the Constitution Act, 1982.

Section 52 also states th at any amendments to the Constitution of Can-

ada “shall be made only in accordance w ith the authority contained in

the Constitution of Canada.” Section 52 does not expressly state th at

Part V represents an exhaustive source of authority for amending the

Constitution of Canada, but it is not clear th at there are any other pow-

ers of amendment.2 In any event, Part V deals comprehensively with all

aspects of the amendment of the Constitution of Canada.

1 The Constitution Act, 1982, being Schedule B to the Ca nada Act 1982 (U. K.),

1982, c. 11.

2 Most of the amendi ng powers used before 1982 were repealed or ab olished with

the enactment of t he Canada Act 1982 and the Constitu tion Act, 1982. The amend-

ing power of Westmin ster, as well as the amending p owers in ss. 91(1) and 92(1)

of the Constitution Act, 1867 were repealed in 1982. The only amendin g power

prior to 1982 that continue s to exist appears to be t he power to create new prov-

inces or to alter prov incial boundarie s established in the Constitution Act, 1871

(U.K.), 34 & 35 Vict., c. 28. As di scussed later in th is chapter, there is some doubt

as to whether th is amending authority h as survived the ena ctment of Part V.

Constitution al Change Since 1982 189

The def‌inition of the Constitution of Canada set out in section 52(2)

includes the Constitution Act, 1867, the Canada Act 1982, the Constitu-

tion 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

Category Docum ent

U.K. statute s Const itution [BNA] Act, 1867

Amendments to Con stitution Act, 1867 (1871, 1886, 1907, 1915,

1930, 194 0, 1946, 19 49, 1960, 196 4)

Parliament of Canada Ac t, 1875

Canada (Ontario Bo undary) Act, 1889

Statute of Westminster, 1931

Canada Act, 1982

Constitution Act, 1982

U.K. orders-

in-council

1870 Order admitting Rupe rt’s Land to Canada

1871 Order admitting B ritish Columbia to Canad a

1873 Order admittin g PEI to Canada

1880 Order admit ting Arctic Archipela go to Canada

Canadian

statute s

Manitoba Act, 1870

Alberta Act, 1905

Saskatchewan Act, 1905

Amendments to Con stitution Act, 1867 (1965, 1974, 1975 (no. 1),

1975 (no. 2)

Constitut ional

amendments

sinc e 1982

Constitution Amendment Proclamation, 1983 (re: Aborigi nal rights

Constitution Act, 1985 (Representation), S.C. 1986, c. 8, Part I (re :

representat ion in House of Commons)

Constitution Am endment Proclamation , 1987 (Newfoundland Ac t) (re:

denomination al school rights)

Constitution Amendment Proclamation, 1993 (NB) (re: language

ri ght s)

Constitution Amendment Proclamation, 1993 (PE) (re: f‌ixed link)

Constitution Amendment Proclamation, 1997 (NF) (re: denominationa l

school rights)

Constitution Amendment Proclamation, 1997 (QC) (re: denominational

school rights)

Constitution Amendment Proclamation, 1998 (NF) (re: denomina-

tional school r ights)

Constitut ional

amendments

sinc e 1982

Constitution Ac t, 1999 (Nunavut), S.C. 1998, c. 15, Part II

Constitution Amendment, 2001 (Newfoundland and Labrador)

Other Constit utional principles (i.e., federalis m, democracy, rule of law,

minority r ights, independence of judicia ry) recognized by

courts as c onstitutionally bi nding

CONSTITUTIONA L LAW

190

The enactments falling w ithin 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 est ablished

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 Proclama-

tion of 1763, the Constitution Act, 1791, and the Union Act, 1840 that were

reviewed in Chapter 2. Constitutiona l conventions, ordinary statutes

of an organic character, and treaties w ith Aboriginal peoples are l ike-

wise 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

Category Elements or Illust rations

Constitut ional

enactments

befor e 1867

The Royal Proclamatio n of 1763

Provinci al constitutions of Nova Scotia , Prince Edward Island,

New Brunsw ick, Newfoundland, Brit ish Columbia

Constitut ional

conventions

Principles of re sponsible government

Conventions regu lating federal-provinci al relations

Judicial

decisions

Interpretat ions of the Constitution Acts

Common law doctr ines def‌ining powers of t he Crown, Parliament,

or state off‌icia ls

Organic

statute s

Supreme Court Act

Canada Election s Act

Financial Administration Act

Citize nship Act

Prerogative

orders

Letters Patent of 1947 constituting t he off‌ice of the governor general

Aborigi nal

agreements

Treaties 1 to 11

James Bay and Norther n Quebec Agreement Inuvialuit Fin al Agreements

Yukon First Nations Final Agreeme nts

Nisga’a Final Agreem ent

Since these statutes and r ules are not part of the Constitution of

Canada, they are not subject to the amendi ng procedures in Part V of

the Constitution Act, 1982. For example, the conventions of responsible

government that def‌ine the circum stances in which the powers and

prerogatives of the queen and the governor general can be exercis ed

are not part of the Constitution of Canad a. 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