C. The Search for a Domestic Amending Formula
| Author | Patrick J. Monahan - Byron Shaw |
| Pages | 176-184 |
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Before the First World War, the development of a domestic constitutional amending formula was not regarded as a significant political issue. Canadian political leaders appeared content to leave the power to amend the BNA Act in the hands of Westminster, particularly since there were few amendments requested during this period and none of the amendments involved major changes to the federation. Nor was the issue of provincial involvement in the amending process a particularly controversial issue. The only occasion on which the federal government consulted with the provinces on a constitutional change during the first fifty years of confederation was in 1907, when Ottawa sought an amendment establishing a new scale of financial subsidies to the provinces in place of those set out in section 118 of the BNA Act. Eight of the nine provinces consented to the amendment, but British Columbia remained opposed. The British government made minor changes in the text of the draft bill, and the amendment was enacted over British Columbia’s objections.
Most of the amendments enacted during the first fifty years of confederation did not have a direct impact on the provinces. However, the amendment of 1915 redefined the senatorial divisions of Canada to take into account the provinces of Manitoba, Saskatchewan, Alberta, and British Columbia. As the Supreme Court noted in its judgment many years later in the Senate Reference, the provincial distribution of seats in the Senate has a clear impact on provincial and regional interests. However, the 1915 amendment was passed without consultation with the provinces and without provincial government representations concerning its enactment.
In short, during this early period, there was no constitutional convention requiring the consultation or consent of the provinces before
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a constitutional amendment, even when the amendment had a direct impact on provincial or regional interests.
After the end of the First World War, domestic constitutional amendment became a significant political issue. However, before the authority of Westminster over the BNA Act could be terminated, it would be necessary to arrive at a consensus as to the respective roles of the federal and the provincial governments in future amendments. The need for federal-provincial agreement on a domestic amending formula acquired some urgency after the issuance of the Balfour Declaration in 1926, which recognized the political independence of the self-governing dominions. The British government agreed to enact a statute granting the dominions the right to amend imperial statutes applicable to the former colonies. At dominion-provincial conferences in 1927 and 1931, the federal government and the provinces were unable to come to an agreement on the appropriate domestic procedure for amending the BNA Act. Therefore, when the British Parliament enacted the Statute of Westminster, 1931, granting the Canadian Parliament and the provincial legislatures the power to amend or repeal imperial statutes applying to Canada, a section was added stating that nothing in the statute applied to the amendment of the BNA Act.40The practical effect of this "carve out" was to retain the legal authority of Westminster over the BNA Act.
The search for a domestic amending formula continued at federal- provincial conferences and meetings in 1935-36, 1950, 1960-61, and 1964. The broad outlines of a consensus on an appropriate amending formula gradually began to emerge at these meetings. In particular, there was general agreement that constitutional changes affecting the rights or powers of the provinces required their consent. It was also clear that for certain fundamental matters, the consent of all the provinces should be required, while for other matters touching on provincial interests the consent of some but not all provinces should be sufficient. The precise dividing line between amendments requiring provincial unanimity and amendments requiring something less than unanimity remained uncertain. In addition, the precise scope of federal power to amend the constitution was a controversial issue. The provinces continued to argue that section 91(1) was too broadly framed, and
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that amendments falling into this category needed to be defined more narrowly.
In the meantime, the BNA Act was amended nine times between 1931 and the mid-1960s. In three of those instances (1940, 1951, 1964), the amendments directly affected provincial powers by adding to the legislative authority of the Parliament of Canada.41On each of these occasions, unanimous provincial consent for the amendment was obtained. On other occasions, however, the federal government failed to obtain provincial consent before obtaining an amendment that affected provincial interests. As discussed above, in 1949, section 91(1) was added to the BNA Act, granting the federal Parliament the power to enact constitutional amendments, without provincial consent. Nor was the consent of the other provinces obtained in 1949 for the constitutional amendment admitting Newfoundland to confederation.42The provinces also objected to the fact that their consent was not obtained before the constitutional amendments in 1943 and 1946.43By the 1960s, therefore, a constitutional convention had begun to emerge such that any amendment directly affecting the legislative powers of the provinces would be sought from Westminster only after the consent of the provinces had been obtained. This convention was reflected in the fact that the amendments which had altered provincial legislative powers had all been approved by the provinces before the submission of the parliamentary request to the British government. However, as the federal government concluded in a 1965 white paper,
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the "nature and degree of provincial participation in the amending process ... have not lent themselves to easy definition."44
During the 1960s and early 1970s, the federal and provincial governments came very close to achieving unanimous agreement on a new amending formula on two separate occasions. In October 1964, the "Fulton-Favreau amending...
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