Document Information

Date: n.d. (prob. 1980)
By: Government of Canada, Eddie Goldenberg
Citation: Note from Eddie Goldenberg to Joyce Fairbarn (n.d.) incl. Section 41 – General Amending Formula memorandum.
Other formats: Click here to view the original document (PDF).

Joyce Fairbairn

Mike told me that the P.M. wanted population figures with respect to the amending formula. He will find them in the this note.

Eddie

CONFIDENTIAL

Section 41         –           General Amending Formula

– In order to see the complete amending process, one should read section 41 together with section 43 which provides for amendments to provisions affecting one or more but not all of the provinces, section 48 which provides for amendment by Parliament for the executive government of Canada, the Senate and the House of Commons, and section 49 which provides that provincial legislatures may make amendments with respect to provincial constitutions.

Section 41 is a modified version of the Victoria formula in that the consent required from the Atlantic provinces must be by at least two provinces comprising at least 50 per cent of the population of all Atlantic provinces. In the Victoria formula such a population requirement only pertained to the two Western provinces.

The Victoria amending formula was acceptable to all governments in Victoria in 1971, although Quebec rejected the whole constitutional proposal because r the provision relating to social services did not go far enough; in addition, Saskatchewan never officially accepted the whole Charter because its government changed at that time.

Subclause (1) will require, at the present time, the consent of Ontario and Quebec.

The percentage population of the provinces is as follows:

Nfld. – 2½ %

P.E.I. – ½%

N.S. – 4%

N.B. – 4%

Que. – 27%

Ont. – 36%

Man. – 4%

Sask. – 4%

Alta. – 8%

B.C. – 11%

It should be noted, however, that the formula re­ quires the consent of “every province that at any time before the issue of the proclamation (i.e.: bringing any particular constitutional amendment into force) had a population of at least 25 per cent … ” Thus, the consent of every province which at any time in its history had 25 per cent of the population is required, even though at the time of the particular amendment it may have less than that number. Therefore, over the course of time the consent of several provinces could be required under this section. That would only occur if, as a result of population shifts, that province at some time or other had 25 per cent of the population of the country.

CONFIDENTIAL

The population of provinces by percentage of total population of the Atlantic and Western regions respectively are set out below. The figures are taken from the 1976 census. Those for the next census in June, 1981 are not expected to change the relative positions of the provinces.

Atlantic Region

Nova Scotia                38%

New Brunswick          31%

Newfoundland            25.6%

P.E.I.                           5.4%

Western Regions

British Columbia        39%

Alberta                                    29%

Saskatchewan             16%

Manitoba                     16%

The result of the 50 per cent regional population. requirement means that in no case will the vote of P.E.I. count since any two other Atlantic provinces can carry an amendment and yet P.E.I., combined with any other Atlantic province, would not constitute a majority.

In the Western region the regional population requirement means that an amendment can only be made when British Columbia and at least one of the other Western provinces agree. Otherwise, if B.C. does not agree, the three other Western provinces must agree.

As noted above, the provincial component of the amending formula (section 41(1)(b) can be altered if eight provinces having at least 80 per cent of the population agree on an alternative proposal which is approved by referendum as provided for under section 38.

Victoria Proposal

Art. 49. Amendments to the Constitution of Canada may from time to time be made by proclamation issued by the Governor General under the Great Seal of Canada when so authorized by resolutions of the Senate and House of Commons and of the Legislative assemblies of at least a majority of the Provinces that includes.

(1) every Province that at any time before the issue of such proclamation had, according to any previous general census, a population of at least twenty-five percent of the population of Canada;

(2) at least two of the Atlantic Provinces;

(3) at least two of the Western Provinces that have, according to the then latest general census, combined populations of at least fifty per cent of the population of all the Western Provinces.