D. The General Amending Formula: Section 38

Author:Patrick J. Monahan - Byron Shaw

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1) The Scope and Application of Section 38

The marginal note to section 38 of the Constitution Act, 1982 describes it as the "[g]eneral procedure for amending [the] Constitution of Canada" - a description which suggests that it operates as a kind of residual provision that applies whenever a proposed amendment does not fall into one of the more specific procedures in Part V. This interpretation is reinforced by the wording of section 38, which states that amendments "may" be made under its authority. The wording of sections 41, 42, and 43, in contrast, provide that amendments falling into certain classes may be made "only" in accordance with their provisions, while sections 44 and 45 reference the "exclusive" authority of Parliament and the provincial legislatures to enact certain amendments. The inclusion of the words "only" and "exclusively" in the latter sections, coupled with their absence in section 38, suggests that section 38 operates in cases where sections 41 to 45 do not apply. By construing section 38 in this fashion, the result is that no part of the Constitution of Canada is unamendable, since any amendment not specifically provided for elsewhere must be possible under the general procedure.20Section 38 requires identical resolutions of the Senate and the House of Commons and the Legislative Assemblies of at least two-thirds of the provinces that have, in the aggregate, at least 50 percent of the total provincial population in the ten provinces.21Once the required resolutions are passed, the governor general issues a proclamation bringing the amendment into force. The federal government is to advise the governor general to issue the proclamation immediately on the adop-

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tion of the required number of legislative resolutions.22Provinces may revoke resolutions supporting an amendment at any time before the issuance of the proclamation. Once a proclamation has been issued by the governor general, however, the right to revoke provincial consent in respect of that amendment is terminated. A province unhappy with an amendment that has already been proclaimed would have to initiate an entirely new process repealing the original amendment.

The general amending procedure in section 38 is modelled on the "Vancouver formula" proposed by the eight provinces that were opposed to the federal government’s patriation proposals before the agreement reached in November 1981, as discussed in section C(4) in Chapter 5. This so-called "7-50" formula23does not permit any single province to veto an amendment that is supported by the required number of provinces, thereby giving effect to the principle of the equality of the provinces. However, because the formula takes into account relative provincial populations, the three provinces with the largest populations (Ontario, Quebec, and British Columbia) have proportionately more weight. For example, the combinations of Ontario and Quebec, as well as Ontario and British Columbia,24could veto an amendment that was supported by the other eight provinces.25

2) Opting Out and Compensation

While the general amending procedure does not provide a veto for any individual province, it does protect provincial interests by providing a right for a dissenting province to "opt out" of an amendment that dero-gates from its powers. In order for a province to exercise this right of dissent, the provincial legislature must pass a resolution supported by an absolute majority of its members before the issuance of a proclama-

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tion by the governor general bringing the amendment...

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