There are a number of provisions in the Constitution of Canada that set out special arrangements applicable to some but not all provinces.57
Section 43 provides that amendments in relation to any of these "special arrangement" provisions may be made only where authorized by resolutions of the Senate and the House of Commons and the Legislative Assemblies of each province to which the amendment applies.
One of the purposes of section 43 is to ensure that, where the constitution already contains a special arrangement applicable to certain provinces, such arrangement cannot be changed without the consent of the provinces affected. In this sense, section 43 establishes a necessary condition (although not necessarily a sufficient condition) for the passage of such an amendment, by requiring that such an amendment can be passed "only" if the provinces affected by it have agreed.
A number of difficult interpretive issues arise in relation to section 43.58The first is whether it establishes a separate and distinct amending process in its own right, or whether it merely adds additional
requirements to the other amending formulas set out in Part V. The wording of sections 46(1) and 47(1) suggests that section 43 does establish a distinct amending process.59This interpretation is consistent with historical experience. Since 1982, there have been several amendments enacted pursuant to section 43 and, in each instance, the amendment was adopted by the federal Houses and the affected provinces only. In no case was it seen as necessary for any other province to pass a supporting resolution.
The amendments that have thus far been passed pursuant to section 43, however, have not involved matters falling within either section 41 or 42. The question that arises is what amending formula would apply in cases where an amendment was being made to a "special arrangement" provision of the constitution that also fell within section 41 or 42. For example, suppose it were proposed to extend the boundaries of a province into the territories. Would such an amendment fall under section 42(1)(e) and require the consent of seven provinces, or could it be accomplished under section 43 with the consent of only the province affected60In our view, such an amendment would necessarily have to satisfy the requirements of both sections 42(1)(e) and 43. Sections 41 through 43 all state that amendments to certain matters may be made "only" through the...