Constitutional Change since 1982

• Author: Patrick J. Monahan/Byron Shaw/Padraic Ryan
• Pages: 188-239

188

CHA PTER 6

CONSTITUTIONAL

CHANGE SINCE 1982

A. AMENDMENTS TO THE CONSTITUTION

OF CAN ADA

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2 Most of the amendin g powers used before 1982 were repealed or ab olished with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of the Constitution Act, 1867 were repealed in 1982.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 (, , ,

, , , , , , )

Parliament of Canada Act, 1875

Canada (Ontario Boundary) Act , 1889

Statute of Westminster, 1931

Canada A ct, 1982

Constitution Act, 1982

U.K. orders in

council

 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

Canadian

statutes

Manitoba Act, 1870

Alberta Act, 1905

Saskatchewan Act, 1905

Amendments to Constitution Act, 1867 (, ,  (no.

),  (no. ))

Constitutional

amendments

since 

Constitution Amendment Proclamation, 1983 (re: Indigenous

rights

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

link)

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

CONSTITUTIONA L LAW190

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

Constitutional

enactments before



The Royal Proclamation of 1763

Provincial constitutions of Nova Scotia, Prin ce Edward Is-

land, New Brunswick, New foundland, British Columbia

Constitutional

conventions

Principles of responsible government

Conventions regulating federal-provincial relations

Judicial

decisions

Interpretations of the Constitution Acts

Common law doctrines def‌ini ng powers of the Crown,

Parliament, or state ocials

Organic

statutes

Canada Elections Act

Financial Administration Act

Citizenship Act

Prerogative orders Letters Patent of  constituting the oce of the gov-

ernor general

Indigenous

agreements

Treaties  to 

James Bay and Northern Quebec Agreement Inuvialuit Final

Agreements

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