F. Unanimity Procedures

Author:Patrick J. Monahan - Byron Shaw

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Section 41 sets out five categories of amendments for which the unanimous consent of the two federal Houses and the provincial legislatures is required. The first category is amendments in relation to "the office of the Queen, the Governor General and the Lieutenant Governor of a

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province."48A number of provisions of the Constitution Act, 1867 deal with the monarchy and its representatives in Canada,49and changes to these provisions would fall within section 41(a). However, it is noteworthy that the office of the governor general itself is not created by the Constitution Act, 1867. It is established through letters patent issued by the queen pursuant to the prerogative rather than through the Constitution Acts.50The letters patent also establish the duties and powers of the office of the governor general, authorizing the governor general "with the advice of Our Privy Council for Canada ... to exercise all powers and authorities lawfully belonging to Us in respect of Canada."51

The letters patent are not listed in the schedule to section 52 of the Constitution Act, 1982. It might be argued, therefore, that the letters patent are not included within the definition of the Constitution of Canada and that the office could be abolished or its powers amended through ordinary legislation enacted by Parliament, without having to rely on the amending procedure in section 41(a). However, this would clearly defeat the purpose of section 41(a). In our view, the letters patent must be interpreted as falling within the section 52 definition of the Constitution of Canada and, thus, subject to the requirements of section 41(a), at least to the extent that it creates the office of the governor general and defines the powers of the office.

Some commentators have suggested that the entire system of Cabinet government, including the appointment of the first minister and the Cabinet by the governor general, has now been entrenched in the constitution by virtue of section 41(a).52However, there is no reference to the institution of the Cabinet or the office of the first minister in the Constitution of Canada. The powers of the first minister are almost

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entirely defined through constitutional conventions. These conventions will continue to evolve as political practices and the beliefs of the relevant political actors change to deal with new circumstances. There does not appear to be any principled basis for interpreting section...

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