B. Legislative versus Executive Amendment

Author:Patrick J. Monahan - Byron Shaw

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Before 1982, the only legislative bodies involved in the process of securing amendments to the BNA Act were the Parliaments of Canada and Westminster. While there was a constitutional convention requiring provincial consent, this consent was provided by provincial governments rather than legislatures. For example, the only provincial legislature that approved the constitutional agreement of 5 November 1981, was Alberta, on 10 November. Later in the month, Prime Minister Trudeau and the premiers agreed to make certain changes in the proposed constitutional reform package designed to win the support of the province of Quebec, as well as organizations representing women and Aboriginal peoples. However, these changes were negotiated and agreed to by the respective governments and, aside from the National Assembly in Quebec,7no provincial legislature voted on the proposed modifications.

Critics of this process argued that it was insufficiently democratic, since it did not provide a guarantee that constitutional amendments would be debated by provincial legislatures. On the other hand, the process prior to the 1982 amendments did provide some opportunity for public debate, since any request for a constitutional amendment required a resolution passed by the Senate and the House of Commons. This process was also extremely flexible and enabled governments to make changes to a proposed amendment while the amendment was proceeding through the legislative approval process. This flexibility was demonstrated by the manner in which governments were able to effect modifications to the constitutional resolution following the original 5 November 1981 constitutional agreement. Since there was only

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a single legislative resolution embodying the proposed amendment (the joint Senate-House of Commons resolution), it was a straightforward matter to amend the resolution to reflect any modifications that were acceptable to the various governments involved.

The enactment of Part V effected a fundamental shift from executives to legislatures in the constitutional amendment process. Henceforth, provincial approval of constitutional change required legislative resolutions as opposed to agreement by the executive. The significance of this change was not debated extensively at the time, although it was widely accepted as a greater opportunity for public debate and input into the process of constitutional change. Ironically, however, one could argue that the need to have constitutional amendments enacted by provincial legislatures has indirectly reduced the flexibility which governments may require in order to accommodate public concerns in the amendment process. Part V requires each participating legislature to adopt an identically worded constitutional amendment before the amendment can become law. But Part V does not contemplate a mechanism for the debate and accommodation of the concerns identified in the different legislatures. Instead, each legislature...

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