H. Unilateral Federal Procedure

Author:Patrick J. Monahan - Byron Shaw

Page 212

Section 44 provides that the federal Parliament may enact amendments to the Constitution of Canada in relation to "the executive government of Canada or the Senate and House of Commons." However, the section 44 power is subject to sections 41 and 42, which require the consent of either seven or ten provinces, depending on the subject matter of the amendment. A number of matters in sections 41 and 42 operate so as to constrain the scope of section 44, including the office of the queen and the governor general (section 41(a)); minimum provincial representa-

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tion in the House of Commons (section 41(b)); the principle of proportionate representation in the House of Commons (section 42(1)(a)); the use of the English or the French language (section 41(c)); the powers of the Senate and the method of selecting senators (section 42(1)(b)); and provincial representation in the Senate and the residence qualifications of senators (section 42(1)(c)). These exceptions deal with aspects of federal legislative and executive institutions that affect provincial interests.

Section 44 was intended to replace section 91(1) of the Constitution Act, 1867, which had granted Parliament the power to amend the Constitution of Canada subject to a number of exceptions. Section 91(1) was repealed in 1982 at the time of the enactment of section 44. As noted earlier, section 91(1) was construed in a narrow fashion by the Supreme Court of Canada in the Senate Reference. The Court held that section 91(1) could not be used so as to alter the "fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process." The fact that Parliament’s unilateral power to enact amendments to the Senate is made subject to significant exceptions in sections 41 and 42 suggests that the drafters of the new federal amending power were attempting to codify the Supreme Court’s analysis in the Senate Reference. Thus, section 42 provides that important matters such as the powers of the Senate, the method of selecting Senators, the number of members by which a province is entitled to be represented in the Senate, and the residence qualifications of Senators, are all "fundamental" or "essential" matters that require the consent of at least seven provinces representing at least 50 percent of the provincial population.

Since 1982, the section 44 amending power has been utilized in...

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