Constitutional Change since 1982

AuthorPatrick J. Monahan/Byron Shaw/Padraic Ryan
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 that
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.), 19 82,
c. 11.
2 Most of the amendin g powers used before 1982 were repealed or ab olished with
the enactment of t he Canada Act 1982 and the Constitut ion 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of the Constitution Act, 1867 were repealed in 1982.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 amending p ower
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 thi s chapter, there is some doubt
as to whether th is amending authority ha s survived the enact ment of Part V.
Constitut ional Change since 1982 189
The def‌inition of the Constitution of Canada set out in sect ion 52(2)
includes the Constitution Act, 1867, the Canada Act 1982, the Constitu-
tion Act, 1982, any amendments to those Acts and a detailed l ist of Acts
and orders referred to in a schedule. Table 6.1 provides a comprehen-
sive list of such documents.
Table 6.1 Canad a’s Written Constitution
Category Document
U.K. statutes Constitution [BNA] Act, 1867
Amendments to Constitution Act, 1867 (, , ,
, , , , , , )
Canada (Ontario Boundary) Act , 1889
Statute of Westminster, 1931
Canada A ct, 1982
Constitution Act, 1982
U.K. orders in
 Order admitting Rupert’s Land to Ca nada
 Order admitting British Columbia to Canada
 Order admitting PEI to Canada
 Order admitting Arctic A rchipelago to Canada
Manitoba Act, 1870
Alberta Act, 1905
Saskatchewan Act, 1905
Amendments to Constitution Act, 1867 (, ,  (no.
),  (no. ))
since 
Constitution Amendment Proclamation, 1983 (re: Indigenous
Constitution Act, 1985 (Representation), S.C. , c., Par t I
(re: representation in House of Commons)
Constitution Amendment Proclamation, 1987 (Newfoundland
Act) (re: denominational school rights)
Constitution Amendment Proclamation, 1993 (NB) (re: lan-
guage rights)
Constitution Amendment Proclamation, 1993 (PE) (re: f‌ixed
Constitution Amendment Proclamation, 1997 (NF) (re: denomi-
national school rights)
Constitution Amendment Proclamation, 1997 (QC) (re: denomi-
national school rights)
Constitution Amendment Proclamation, 1998 (NF) (re: de-
nominational school rights)
Constitution Act, 1999 (Nunavut), S.C. , c., Part II
Constitution Amendment, 2001 (Newfoundland and Labrador)
Fair Representation Act, 2011
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 Const itution of Canada
in section 52(2). These “unentrenched” documents include all the
pre-Confederation constitutional documents such as the Royal Proc-
lamation of 1763, the Constitution Act, 1791, and the Union Act, 1840 that
were reviewed in Chapter 2. Constitutiona l conventions, ordinary stat-
utes of an organic character, and treaties w ith Indigenous peoples are
likewise not included in the def‌inition of the Constitution of Canada
set out in section 52 (see Table 6.2).
Table 6.2 Other Elements of the Constitution of Canada
Category Elements or Illustrations
enactments before
The Royal Proclamation of 1763
Provincial constitutions of Nova Scotia, Prin ce Edward Is-
land, New Brunswick, New foundland, British Columbia
Principles of responsible government
Conventions regulating federal-provincial relations
Interpretations of the Constitution Acts
Common law doctrines def‌ini ng powers of the Crown,
Parliament, or state ocials
Canada Elections Act
Financial Administration Act
Citizenship Act
Prerogative orders Letters Patent of  constituting the oce of the gov-
ernor general
Treaties  to 
James Bay and Northern Quebec Agreement Inuvialuit Final
Yukon First Nations Final Agreements
Nisga’a Final Agreement
Other Constitutional principles ( i.e., federalism, democracy, rule
of law, minority rights, independ ence of judiciary) rec-
ognized by courts as constitution ally binding
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 exercised

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