Diversity within unity: consitutional amendments under section 43.

• Author: Brock, Kathy

Kathy Brock is an Associate Professor of Political Science at Wilfrid Laurier University. This is a revised and expanded version of her testimony before the Senate Standing Committee on Legal and Constitutional Affairs on June 18, 1996.

Section 43 of the Constitution Act, 1982 is used for amendments affecting one or more but not all provinces. Such amendments require the consent of provincial legislature(s) affected plus consent of the House of Commons and Senate. However, if the Senate defeats the amendment it may still be adopted if it is approved a second time by the House. The recent amendment to Term 17 of the Terms of Union between Newfoundland and Canada is an example of such an amendment. This article asks a number of important questions about the internal logic of section 43; the appropriate roles of the provincial and federal governments in these amendments; the limits on the roles of the House of Commons, the Senate and the provincial legislatures; the use of referenda and hearings; and finally, the lessons to be gained from the section 43 amendments that have occurred.

A constitutional guarantee of public funding for denominational schools and a role for churches in education were written into the Terms of Union by which Newfoundland joined Confederation in 1949. Following a Royal Commission Report on educational reform in 1992, the Government of Newfoundland released a proposal to restructure the school system. On September 5, 1995 a non binding referendum was held in Newfoundland on the question of amending Term 17. Close to 55% of the voters favoured reforming the school system.

The issue was brought to the House of Assembly for debate in October 1995, and was approved, 31 to 20, in a free vote after seven days of debate. In November, the Speaker of the House of Assembly sent a certified copy of the resolution to the Clerk of the Privy Council in Ottawa. In reaction to the federal government's slow response, on May 23, 1996, Premier Brian Tobin introduced a second resolution asking Ottawa to deal expeditiously with the amendment. Members of the Newfoundland House unanimously passed this resolution. The House debated the amendment for two days in June 1996 and approved it, sending it on to the Senate.

The resolution was referred to the Senate Standing Committee on Legal and Constitutional Affairs which held hearings in Ottawa and Newfoundland. On July 17, the Committee presented its Report to the Senate. It recommended adoption of the resolution without amendment, although a dissenting opinion written by Progressive Conservative members of the committee called for amendments to the resolution before passage. Specifically, Tory Senators wanted to ensure continued protection for the denominations privileged under the traditional schools regime by including in the amendment a "where numbers warrant" test which would be applied by the courts to determine whether or not uni-denominational schools should be established rather than leaving it to the discretion of the elected legislature. The Tory Senators also feared the amendment would transfer control over programmes to the government of Newfoundland and thus requested a change in wording to ensure that uni-denominational school boards retained control over their programmes. (1) These proposals reflected the positions taken by representatives for the Roman Catholic and Pentecostal boards, the amendments's staunchest critics. (2) After some delay, the Senate resumed debate on the resolution and, on November 27th, by a vote of 46-35, passed the resolution as amended in accordance with the recommendations of the Conservative Senators. On December 4, shortly after the expiry of the 180 day limit for the Senate's suspensive veto, the House of Commons, rejected the motion as amended by the Senate and passed the original amendment by a vote of 172-42, thus ensuring its proclamation.

The Newfoundland Amendment, as it came to be known, raised some important questions about the handling of Section 43 amendments.

* Should the Senate have held hearings and delayed consideration and passage of the Resolution after it had been approved by two duly elected representative bodies?

* What are the options for the Senate in considering section 43 amendments?

* Should the House of Commons have acted more quickly on the original request by the Newfoundland government, and conversely, should it have acted with what some perceived as undue haste when it did...