Amendments in Canada

Constitutional Amending Formulas

Note: see also the information about regional vetoes.

There are five amending processes laid out in Part V of the Constitution Act, 1982.

The amending formulas (procedure for amending the Constitution) set out in Part V of the Constitution Act, 1982, are the following:

38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by

(a) resolutions of the Senate and the House of Commons; and

(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of the provinces.

(2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).

(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.

(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

39. (1) A proclamation shall not be issued under subsection 38(1) before the expiration of one year from the adoption of the resolution initiating the amendment procedure, unless the legislative assembly of each province has previously adopted a resolution of assent or dissent.

(2) A proclamation shall not be issued under subsection 38(1) after the expiration of three years from the adoption of the resolution initiating the amendment procedure thereunder.

40. Where an amendment is made under subsection 38(1) that transfers provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply.

41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assemblies of each province:

(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;

(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;

(c) subject to section 43, the use of the English or the French language;

(d) the composition of the Supreme Court of Canada; and

(e) an amendment to this Part.

42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):

(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;

(b) the powers of the Senate and the method of selecting Senators;

(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;

(d) subject to paragraph 41(d), the Supreme Court of Canada;

(e) the extension of existing provinces into the territories; and

(f) notwithstanding any other law or practice, the establishment of new provinces;

(2) Subsections 38(2) to 38(4) do not apply in respect of amendments in relation to matters referred to in subsection (1).

43. An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all provinces, including

(a) any alteration to boundaries between provinces, and

(b) any amendment to any provisions that relate to the use of the English or the French language within a province

may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.

44. Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to executive government of Canada or the Senate and House of Commons.

45. Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.

46. (1) The procedures for amendment under sections 38, 41, 42, and 43 may be initiated either by the Senate or the House of Commons or by the legislative assembly of province.

(2) A resolution of assent for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it.

47. (1) An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42, or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.

(2) Any period when Parliament is prorogued or dissolved shall not be counted in computing the one hundred and eighty day period referred to in subsection (1).

48. The Queen’s Privy Council for Canada shall advise the Governor General to issue a proclamation under this Part forthwith on the adoption of the resolution required for an amendment made by proclamation under this part.

49. A constitutional conference of the Prime Minister of Canada and the first ministers shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part. [Note that this requrement was satisfied at the 1996 First Ministers Conference]

Formal amendments to the Constitution of Canada

Since the amending processes established in Part V of the Constitution Act came into effect in 1982, there have been nine formal amendments to the Constitution of Canada:

• Constitution Amendment Proclamation, 1983 dealt with Aboriginal rights.
• Constitution Act, 1985 (Representation) permitted future changes to the distribution of seats for Parliament to be done by ordinary statute.
• Constitution Amendment, 1987 (Newfoundland Act) extended education rights to the Pentecostal Church.
• Constitution Amendment Proclamation, 1993 (New Brunswick Act) made English and French both official languages in New Brunswick.
• Constitution Amendment Proclamation, 1993 (Prince Edward Island) cleared the way for the “fixed link” bridge to replace ferry services to P.E.I.
• Constitution Amendment Proclamation, 1997 (Newfoundland Act) allowed the Province of Newfoundland to create a secular school system to replace the church-based education system.
• Constitution Amendment, 1997 (Quebec) permitted the province to replace the denominational school boards with ones organized on linguistic lines.
• Constitution Amendment, 1998 (Newfoundland) allowed the province to abolish the denominational school system.
• Constitution Act, 1999 (Nunavut) provides for representation in the House of Commons and the Senate for the Nunavut Territory.
• Constitution Amendment 2001 (Newfoundland and Labrador) officially changed the name of the Province of Newfoundland to the Province of Newfoundland and Labrador.

Other Issues

Clarity Act

“Following the Supreme Court of Canada’s ruling on Quebec Secession, the federal government decided to place conditions upon its participation in separation negotiations following any referendum on Quebec independence. These limitations were put into law as the Clarity Act, enacted in 2000.” (Nelson)

Proposed Amendments

“A number of proposals for major changes to the Constitution have been made over the years, without success. Several comprehensive packages have come close, having initial agreement among the first ministers, but failed to get enough sustained support to be made into law.

The first ministers have agreed on two other sets of proposed amendments, but they failed to pass:

The Meech Lake Accord was originally agreed to by all ten premiers and the Prime Minister of Canada in 1987, and again in 1990. But this measure failed to gain approval of all the legislatures.

The Charlottetown Accord, negotiated in 1992 with unanimous agreement among the first ministers, also failed to become law. It is available in two versions on-line: the plain-English Consensus Report and thelegal text.

The Charlottetown Accord was defeated in two referendums held simultaneously: one was organized by the Quebec government in Quebec, while the federal government organized the referendum in the rest of Canada.

The questions and results of the 1980 and 1995 Quebec Sovereignty Referendum are available on-line.

With the precedent of the 1992 referendum, many believe that a future package of constitutional amendments could not be passed without popular approval through another referendum. Indeed, both Alberta and British Columbia have legislation that requires the holding of a referendum in those provinces on constitutional amendments. In the case of Alberta, the referendum must be held before a vote is held in the legislature on the resolution to amend the Constitution. The B.C. government has to put any proposed amendment to a referendum even before introducing a motion in the legislature.

For details, see Alberta’s Constitutional Referendum Act and B.C.’s Constitutional Amendment Approval Act.

A number of citizens’ groups have emerged since the Meech Lake negotiations to demand that future constitutional renewal not be left to the first ministers alone. They suggest that a constituent assembly (sometimes called a citizens’ forum or constitutional convention) be created with representation from various groups in Canadian society.” (Nelson)

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Law is our Passion

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This entry was last updated: February 14, 2017