I. Unilateral Provincial Procedure

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 214-215

Page 214

Section 45 permits the provincial legislatures to unilaterally amend the "Constitution of the Province," subject to section 41.⁶⁸The term

Page 215

"Constitution of the Province" is not defined. However, case law dealing with the scope of section 92(1) of the Constitution Act, 1867, which section 45 effectively replaced,⁶⁹had defined the term as those matters involving "the operation of an organ of the government of a province."⁷⁰

As such, the scope of section 45 should be similar to that of section 44 despite the different wording. Provinces should be able to unilaterally alter their executive or legislative institutions, subject only to the exceptions set out in section 41.

[68] Section 45 of the Constitution Act, 1982, unlike s. 44, is not made subject to s. 42. However, this difference does not appear to be of any practical significance, since none of the matters in s. 42 would appear to fall within the term "constitution of the province" and thus could not be amended pursuant to s. 45.

[69] Section 92(1) of the Constitution Act, 1867 granted the provinces power to amend the constitution of the province, except as regards the office of the lieutenant governor. Section 92(1) was repealed in 1982.

[70] See O.P.S.E.U. v. Ont. (A.G.), [1987] 2 S.C.R. 2.