Canadian Constitutional Law/Amending the Constitution

Before 1982, the only way to amend the written Constitution of Canada was to ask the Parliament of the United Kingdom in London to pass legislation. Even upon the passage of the Statute of Westminster, 1931, when the United Kingdom Parliament stated that its laws no longer applied to Canada, the U.K. Parliament retained the right to amend the Constitution of Canada through section 4 of the Statute. The Constitution Act, 1982, was therefore made law by a statute of the United Kingdom (called the Canada Act). After the enactment of the Constitution Act, 1982, the procedures for amending the Constitution, known as the amending formulas, no longer required British approval.

The five amending formulas

The particular amending formula required for the ratification of a constitutional amendment depends on that amendment's content. Please note that the first three amending formulas only apply if neither criterion (c) of the general amending formula nor any of the requirements of the unanimity formula are met.

Amendments that affect only the federal government

Under Section 44 of the Constitution Act, 1982, if a proposed constitutional amendment affects the functioning of the executive or legislative functions of the Canadian government, that amendment can be ratified by the passage of an ordinary law of Parliament.

Amendments that affect a single province

Under Section 45, provincial legislatures may amend the constitutions of their own provinces without federal approval.

Amendments that affect more than one, but not all provinces

If an amendment affects some provinces but not others, pursuant to Section 43, the amendment requires the approval of both houses of Parliament as well as the legislatures of all provinces affected.

Amendments that affect all provinces

If an amendment affects all provinces, the amending formula depends on what part of the Constitution is being amended.

The general amending formula ("7/50 rule")

This formula applies when (a) none of the criteria for the unanimity formula are met, and either (b) the amendment affects all provinces, or (c) the amendment does not affect all provinces, but involves amendments to any of the following aspects of the Constitution:

The principle of "proportionate representation" of the various provinces in the House of Commons,
The powers of and appointment procedures for the Senate,
The number of and qualifications for Senators per province, so long as the amendment does not involve a province having fewer members of the House of Commons than Senators,
Anything related to the Supreme Court of Canada that does not involve its "composition",
The extension of existing provinces into the territories, or
The creation of new provinces.

If (a) and either (b) or (c) are met, then, under Section 42, the amendment will be ratified once approved by both houses of Parliament, and by the legislatures of at least two-thirds of the provinces, which, when added together, represent more than 50% of the population of all provinces. Since, so long as Canada has ten provinces, the minimum number needed for ratification is seven, this formula is also called the 7/50 rule.

The unanimity formula

This formula applies to amendments to any of the following aspects of the Constitution:

The offices of the British monarchy, the Governor General, and the Lieutenant Governors of any of the provinces,
The right of all provinces to have at least as many members of the House of Commons as they do Senators,
The use of the English and French languages within more than one province (the use of those languages within a single province is covered by the "more than one, but not all" rule),
The "composition" of the Supreme Court of Canada,
The constitutional amendment process itself.

Here, an amendment requires the approval of Parliament, as well as the legislature of all the provinces of Canada, under Section 41.

Interpretation and further legislation

The Act respecting constitutional amendments

In 1996, An act respecting constitutional amendments (S.C. 1996, c. 1) was passed, declaring that Parliament may not formally propose any constitutional amendments, except for those that provincial legislatures can "veto" under Sections 41 or 43, unless the amendment has previously been consented to by all the legislatures of the following provinces:

Ontario
Quebec
British Columbia
At least two of the following: Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and Labrador
At least two of the following: Manitoba, Saskatchewan, Alberta

What the "composition" of the Supreme Court means

In Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 (CanLII), [2014] 1 SCR 433, the Supreme Court of Canada held that the "composition" of the Supreme Court of Canada includes the eligibility requirements codified in Section 4 of the Supreme Court Act. Those provisions include the existence of a Court with nine justices, including one Chief Justice and eight Puisne Justices, the fact that three justices must always be from Quebec, and the eligibility requirements for being a justice. It was also held that the outright abolition of the Court would constitute a change to its composition, and thus require unanimous consent.

Senate reform

In Reference re Senate Reform, 2014 SCC 32 (CanLII), [2014] 1 SCR 704, the Supreme Court held that the implementation of term limits and elections to the Senate of Canada would require a constitutional amendment under the general amending formula, and that its abolition would require an amendment under the unanimity formula.