Canada, Federal-Provincial Relations Office, The Canadian Constitution and Constitutional Amendment, by Marc Lalonde & Ron Basford (1978)
By: Marc Lalonde, Ron Basford
Citation: Canada, Federal-Provincial Relations Office, The Canadian Constitution and Constitutional Amendment, by Marc Lalonde & Ron Basford (Ottawa: 1978).
Other formats: Click here to view the original document (PDF).
The Honourable Marc Latonde
Minister of State for
The Honourable Ron Basford
Minister of Justice
Table of Contents
|Chapter I — Constitutions and Constitutional
|Chapter II — Federal Constitutions and Constitutional
|Federal Republic of Germany||7|
|Chapter III — The Canadian Constitution and Constitutional Amendment||9|
|The search for an Amending Procedure||10|
|Observations Based on Past Practice||13|
|The Fulton-Favreau Formula||14|
|The Victoria Amending Formula||15|
|Chapter IV — Constitutional Renewal and the Amending Formula||18|
|The Fulton-Favreau Formula and the Victoria Charter Formula||19|
|The Victoria Formula—Coupled with an “Appeal Procedure”||20|
|The Exclusive Use of Referenda||21|
|In Summary: Four Alternative Ways of Amending the Constitution||21|
|Initiation of Constitutional Amendments||22|
Constitutions and Constitutional Amendment
A Constitution provides the basic framework for orderly government in a state, defining and shaping the principal institutions of government and the relations that exist among them. It also provides for relations between the state and the individual, setting out the powers and obligations of the former and the rights and responsibilities of the latter. it may be said that the main function of a Constitution is to remove arbitrariness from government to the greatest possible degree.
The Constitution, however, provides only the skeletal structure for the operation of government and political life. it has to be fleshed out with a large number of laws, regulations, established customs, current practices and public attitudes before it becomes alive. it is only against this broader background that a full understanding can be gained of how the Constitution operates in practice.
If the purpose of a Constitution is to remove uncertainty and caprice from the relations between institutions of government and between those institutions and the people, it follows that, while laws may change with regularity in the normal course of events, the Constitution must be characterized by a large measure of stability. This stability is achieved by making it more difficult to change the Constitution than to change ordinary laws. The scope of matters to be protected in this way and the way in which this protection is achieved vary from state to state and reflect the differing situations and concerns of each country.
But while a Constitution is intended to provide a stable framework for political life, circumstances in a given state may change to such an extent over time that a desire may arise to alter some aspects of the Constitution or, indeed, to replace it completely. Accordingly, Constitutions normally provide for a method to achieve such adjustments.
The procedure for amending a Constitution may be informal or formal. The British Constitution, which is celebrated for its great flexibility, is the sum of established custom and conventions, statutes of a constitutional character enacted by Parliament, and the interpretation of such conventions and statutes by the courts. Since the principal elements of the British Constitution have not been codified in a document that could only be changed by a special procedure, it might be said that all constitutional amendments in the United Kingdom are informal. it might also be noted that while part of the Constitution of Canada is written, the relations between the executive and legislative branches are founded, at the present time, on established constitutional custom and conventions, as in the United Kingdom.
Constitutional custom and conventions and judicial interpretation are part of the constitutional fabric of most states, but it has become increasingly the standard practice over the past two centuries for states to codify major elements of their Constitutions in a written document that can subsequently be amended only by a predetermined procedure. The use of such a procedure results in the formal amendment of the Constitution.
Formal amending procedures for the written part of the Constitution are varied. For example, the Constitution of France provides that the Constitution may be amended by a bill passed by both assemblies of Parliament and approved by the people in a referendum, or by the submission of a proposal by the President to both assemblies convened in a congress where passage would require approval by a three-fifths majority of the votes cast. In the second case, no referendum is required. The Constitution of Belgium provides that Parliament has the right to state that it is necessary to revise an aspect of the Constitution, following which both Houses are dissolved and elections are held. The two new Houses subsequently meet to debate the proposal, and two-thirds of the members of both Houses must be present. The amendment is adopted only if it secures at least two-thirds of the total votes cast. The Constitution of Ireland provides for passage of a bill to amend the Constitution by both Houses of the National Parliament, followed by a referendum.
Procedures in federal states are somewhat different because federal Constitutions, among other things, provide for a constitutional distribution of legislative powers between a central legislature and regional legislatures. This distribution of powers and other provisions of particular importance to the people and to the constituent governments of the federation are usually protected in a federal Constitution in such a way that one legislative body, acting alone, cannot alter them. The way of achieving this protection, while providing at the same time for the possibility of change, is the main burden of this paper.
Before studying the question of constitutional amendment in Canada and examining various alternatives, it would be helpful to look at the way in which some other federations handle this matter.
Federal Constitutions and Constitutional Amendment
Federations are formed when the various constituent units—whether they be states, cantons or provinces—desire a political union without, however, wishing to vest all authority in a central legislature and government. The central legislature and government are usually empowered to legislate and administer in areas of common concern, such as defence and interprovincial and international trade, while the legislatures and governments of the constituent units are normally charged with areas of individual concern, such as education and municipal government. Setting out the constitutional distribution of legislative and executive powers between the two orders of government is not an easy task, for the issues are complex and the various powers are closely interrelated.
A federal Constitution may or may not contain explicit provisions concerning such things as the basic rights of the citizens. However, it has to provide for the distribution of authority between the central legislature and government, and those of the constituent units. Once the distribution has been struck, the framers of federal Constitutions must determine the procedure to be used for amending the Constitution over time, particularly with respect to the distribution of powers.
In countries with a unitary system of government, where all legislative authority is exercised by a single legislature, procedures for constitutional amendment usually require a special majority vote in the legislature, or a national referendum requiring a simple majority for a ratification, or a combination of both. in federal countries, amending procedures usually require either action by both orders of government with a special majority required for approval by the constituent governments, or a referendum which requires, in addition to a national majority, majorities in a majority of the constituent units. The actual amending procedure adopted will depend upon particular circumstances in each federation.
The amending procedures of four other federations were described in The Amendment of the Constitution of Canada, which was published by the Government of Canada, under the authority of the Honourable Guy Favreau. in 1965. The descriptions which follow draw upon those which appeared in that document.
The amendment procedure is governed by Article V of the United States Constitution of 1789:
“The Congress, whenever two-thirds of both Houses shall deem it necessary. shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid to all intents and Purposes, as Part of this Constitution. when ratified by the Legislatures of three-fourths of the several States, or by Convention in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress: Provided that no Amendment which may be made prior to the Year One Thousand Eight Hundred and Eight shall in any Manner affect the first and fourth Clauses in the ninth Section of the first Article; and that no State. without its Consent, shall be deprived of its equal Suffrage in the Senate.”
It is apparent from Article V that amendments to the Constitution of the United States may be proposed to the states either by Congress, on the basis of a favourable vote by at least two-thirds of both the House of Representatives and the Senate, or by a convention called by Congress upon the application of the legislatures of two-thirds of the states. in practice, no amendment to the Constitution has been proposed other than by Congress. A convention has never been called, because while there have been some two dozen applications by state legislatures to Congress proposing an amendment to the Constitution, these have never been submitted by the required two-thirds of the states.
Congress has the right to prescribe the manner in which proposed amendments to the Constitution
shall be ratified. Ratification can be either by the legislatures of three-fourths of the states or by conventions in three-fourths of the states. Only once, in respect of the 21st amendment bringing prohibition to an end, has the Congress proposed that ratification be effected by conventions rather than by state legislatures. Congress may. in proposing an amendment, set a reasonable time limit for its ratification.
In theory, almost any amendment to the Constitution may be proposed. The one exception specified in Article V is that no state, without its consent, shall be deprived of its equal suffrage in the Senate, which is composed of two Senators from each state. Originally, Senators were selected by the legislature of the states they were to represent. However, by the 17th amendment to the Constitution this method of selection was altered to that of direct election.
Amendments to the Constitution have not been frequent. While there have been over 5,000 proposals to amend the Constitution introduced in the Houses of Congress since 1789, only 31 of these have received the required congressional support and been referred to the states for ratification. Of these, 26 have been ratified.
There is no general provision in the Constitution of the United States concerning the delegation of legislative authority from one order of government to another.
The present Swiss federal Constitution was adopted in 1874 and changed, in some important ways, the Constitution of 1848. which made of Switzerland. a genuine federal system as distinct from a confederacy. The amending procedure provides separate methods for dealing with a total revision and with a partial revision of the Constitution (see Articles 118 to 123 reproduced below). There has been no total revision since 1874, although one is now under study. A partial revision may be proposed either by a popular initiative. requiring the signatures of 100,000 voters, or by the Federal Assembly. In either case. the proposal is voted on by referendum, and to pass, it must receive the approval of a “double majority”. that is, a majority of voters in Switzerland as a whole and a majority of cantons. The result of the popular vote in each canton is regarded as the vote of that canton.
The Federal Assembly consists of a National Council and a Council of States. The National Council is composed of elected deputies representing the Swiss people as a whole, on the basis of representation by population. The Council of States is composed of 44 elected deputies, two representing each of the 22 cantons; their election is governed by cantonal legislation and the payment of their indemnities is the responsibility of the cantons. The Federal Assembly formulates the constitutional texts submitted to the popular vote.
From 1874 to the end of 1973, the people and the cantons approved 83 partial revisions; 76 of them had been proposed by the Federal Assembly and seven resulted from the popular initiative. During the same period, the people and the cantons rejected 73 proposals for partial revision; 22 of them had been advanced by the Federal Assembly and 51 by the popular initiative.
There is no provision in the Swiss federal Constitution concerning the delegation of legislative authority. However, in many cases the cantonal authorities are responsible for administering federal legislation.
The amendment procedure is governed by Articles 118 to 123 inclusive of the Swiss Constitution.
“118. The federal Constitution may at any time be wholly or partially revised.
119. Total revision shall be effected in the forms laid down in respect of federal legislation.
120. when either division of the Federal Assembly decides in favour of a total revision of the federal Constitution and the other division does not agree, or when one hundred thousand Swiss voters demand a total revision. the question whether the federal Constitution ought to be revised is in either case submitted to the Swiss nation, which votes in the affirmative or negative.
If in either case a majority of the Swiss nation who vote pronounce in the affirmative, the two councils shall be renewed for the purpose of undertaking the revision.
121. A partial revision may be effected either by means of the popular initiative, or in the forms laid down in respect of federal legislation.
The popular initiative consists of a demand by one hundred thousand Swiss voters for the adoption of a new constitutional article or for the repeal or modification of certain articles of the Constitution already in force.
If by means of the initiative several different provisions are submitted for revision of or for addition to the federal Constitution, each of them must form the subject of a separate initiative demand.
The initiative demand may take the form of a proposal couched in general terms, or of a bill complete in all details.
When the demand is couched in general terms, the federal chambers, if they approve thereof, will proceed to undertake the partial revision in the sense indicated, and will submit the draft for acceptance or rejection by the people and the cantons. if, on the contrary, they do not approve the demand, the question of partial revision shall be submitted to the vote of the people; if a majority of the Swiss citizens taking part in the vote pronounce in the affirmative, the Federal Assembly will proceed to undertake the revision in conformity with the popular decision.
When a demand is presented in the form of a bill complete in all details, and the Federal Assembly approves thereof, the bill shall be submitted for acceptance or rejection by the people and the cantons. if the Federal Assembly is not in agreement, it may draw up a separate bill or recommend to the people the rejection of the bill proposed, and submit to the vote its counter-draft or its proposal for rejection at the same time as the bill presented by popular initiative.
122. Federal legislation shall determine the formalities to be observed in regard to popular initiative and to referenda concerning the revision of the federal Constitution.
123. The revised federal Constitution, or the revised part thereof, shall enter into force when it has been accepted by the majority of the Swiss citizens taking part in the vote thereon and by the majority of the states.
In reckoning a majority of the states, the vote of a half-canton shall be counted as half a vote.
The result of the popular vote in each canton shall be regarded as the vote of that canton.”
Until recently, the number of signatures required for a “popular initiative” on the Constitution was 50,000. in 1971, women were granted, by a constitutional referendum, the right to vote in federal matters. Partly as a consequence of this, the number of signatures required for a popular initiative was increased in 1977 to 100,000. it should be noted that the right of popular initiative has had a major effect on the workings of the Swiss political system. it exists at the cantonal level, in relation to cantonal Constitutions, as well.
The Commonwealth of Australia Constitution Act was passed as a statute of the British Parliament in 1900. Unlike the British North America Act of 1867, the Act of 1900 provided a procedure for its amendment, including the amendment of the sections dealing with the distribution of powers, which would not require action by the British Parliament.
Any projected alteration of the Constitution must first take the form of a proposed law passed by an absolute majority of each House of the Commonwealth (federal) Parliament or, in exceptional cases, by one House of the Parliament. Proposals for constitutional changes cannot originate in any other way. The proposed law is then submitted to a referendum and must be approved by a majority of the electors voting in a majority of states and also by a majority of the electors voting in Australia as a whole, before being submitted for Royal Assent.
The equal representation of the states in the Senate and their share of the seats in the House of Representatives, both of which are provided for in the Constitution, are guaranteed by the last paragraph of Section 128. This Section gives each state a veto in respect of modifications in its own representation in the two Houses of the Commonwealth Parliament, insofar as such modifications would have the effect of changing its position in relation to that of the other states.
Although the amendment procedure adopted by Australia was influenced by the American and Swiss procedures, and the lessons to be gained from their experience, the Australian Constitution has proved more difficult to amend in practice than has been the case in either of those two countries. Since 1900, 16 constitutional referenda have been held, some dealing with several subjects. Of the 36 proposals put to the people only eight have obtained the requisite majorities.
The Australian Constitution does provide for the delegation of legislative authority. Section 51 (xxxvii) grants to the Commonwealth Parliament the power to make laws with respect to “matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any state or states, but so that the law shall extend only to those states by whose Parliament the matter is referred. or which afterwards adopt the law.â€ This provision has rarely been used in practice, although renewed interest has been expressed in it, in recent years, as a more flexible technique for adjusting the distribution of powers than resorting to a formal amendment of the Constitution.
The amendment procedure is governed by Section 128 of the Australian Constitution, which states:
“This Constitution shall not be altered except in the following manner:
The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State to the electors qualified to vote for the election of members of the House of Representatives.
But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State qualified to vote for the election of the House of Representatives.
When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.
And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s assent.
No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.”
Federal Republic of Germany
The Basic law of the Federal Republic of West Germany, which is, in effect, the country’s Constitution, came into effect on May 29, 1949.
The Federal Parliament consists of the Bundestag, or Lower House, which is popularly elected, and of the Bundesrat, or Upper House. The Bundesrat is composed of members appointed by the governments of the Laender (states). Each Land (state) has at least three votes; Laender with more than two million inhabitants have four votes; and Laender with more than six million inhabitants have five votes. The members of each Land delegation must vote as a block.
Amendments to the Basic Law require a two-thirds majority in both the Bundestag and the Bundesrat. The Laender participate in the amendment procedure only through their representative in the Bundesrat who act on the instructions of the Land governments. Amendments affecting the division of the federation into Laender, the principle of participation of the Laender in legislation through the Bundesrat, or Articles 1 and 20 concerning the basic individual rights of citizens and the origin and limitation of state authority respectively, are inadmissible. Otherwise, amendments may be initiated in the same way as normal legislation.
Up until August, 1976, the Basic Law had been amended 34 times. A large number of proposed amendments have been rejected.
In Germany, most legislation is within the jurisdiction of the federal Parliament, although federal law is often administered by the states. The Basic Law also makes provision for the delegation of the exclusive federal legislative authority to the Laender, and for the principles that should guide the federal legislature and the Laender in legislating on matters of concurrent jurisdiction. Article 71 states that on matters within the exclusive legislative powers of the federation, the Laender have authority to legislate only if, and to the extent that, a federal law explicitly so authorizes them. Article 72 states that on matters within the concurrent legislative powers, the Laender have authority to legislate as long as, and to the extent that, the federation does not use its legislative power. it further stipulates that the federal legislature has the right to legislate on such concurrent matters to the extent that a matter cannot be effectively dealt with by the legislation of individual Laender alone, or because dealing with a matter by a Land law might prejudice the interests of other Laender or of the entire community. or because the maintenance of legal or economic unity makes it necessary.
The text of the amendment procedure is governed by Article 79 of the Basic Law, which reads as follows:
“(1) This Basic Law can be amended only by laws which expressly amend or supplement the text
thereof. in respect of international treaties the subject of which is a peace settlement, the preparation of a peace settlement, or the abolition of an occupation regime, or which are designed to serve the defence of the Federal Republic, it shall be sufficient, for the purpose of clarifying that the provisions of this Basic Law do not preclude the conclusion and entry into force of such treaties, to effect a supplementation of the text of this Basic Law confined to such clarification.
(2) Any such law shall require the affirmative vote of two-thirds of the members of the Bundestag and two-thirds of the votes of the Bundesrat.
(3) Amendments of this Basic Law affecting the division of the Federation into Laender, the participation on principle of the Laender in legislation, or the basic principles laid down in Articles 1 and 20. shall be inadmissible.”
The Canadian Constitution and Constitutional
It is common to speak of the British North America Act of 1867 as the Constitution of Canada. This is not, however, quite accurate. The Constitution of Canada encompasses not only the British North America Act and its formal amendments, but also certain other statutes of the United Kingdom, such as the Statute of Westminster, certain imperial orders-in-council, certain federal and provincial laws of a constitutional character, and letters patent, not to mention a wide range of constitutional customs and conventions which define, among other things, the relationship between the executive and legislative branches of government. Furthermore, these sources are supplemented by judicial interpretation. One must look much further than the British North America Act to determine the rights and responsibilities of the Canadian citizen, both federally and provincially, and the full powers and obligations of governments in Canada.
On the other hand, the British North America Act does provide, among other things, for the constitutional distribution of powers between the federal and provincial governments. it forms the very basis for federalism in Canada and it is for this reason that the federal and provincial governments, desirous of stability and protection of their particular interests, are deeply concerned about the way in which the distribution of powers can be amended. Yet the British North America Act did not provide for a formal amending procedure for such matters. It is only by placing the Act in historical perspective that one may understand this omission.
The British North America Act of 1867 was the fourth new Constitution adopted by the British Pariiament in the space of 93 years for the colony known as “Canada” at the time. it followed the Quebec Act of 1774, the Constitutional Act of 1791 and the Union Act of 1840. The Royal Proclamation of 1763, which provided the basic Constitution of “Canada” prior to 1774, resulted from an exercise of the royal prerogative; and the Constitutions of Nova Scotia and New Brunswick, prior to 1867, also resulted from the exercise of this power, as well as from established custom respecting British colonies acquired by settlement or considered to have been so acquired. The Quebec Act was the first major and comprehensive intervention by the British Parliament. its distinct from the Crown, in the field of colonial government. Among other things, it repealed certain provisions of the Royal Proclamation of 1763. After 1774, basic constitutional change for “Canada,” with the exception of the granting of responsible government, was achieved by imperial statute, that is, by a law of the British Parliament.
The three colonies that were joined together in 1867 under the British North America Act as four “provinces” had had internal self-government for almost 20 years. but there was no thought that the new Canada would be independent of Britain. It was consistent with the facts of the situation, then, that the Constitution was, like its immediate predecessors, a statute of the British Parliament. if it did not work out (as its predecessors had not), it could be altered or completely replaced by the British Parliament. There was, at the time, no precedent for an amending procedure for a British statute by a colony, so the omission of a procedure for major adjustment of the Act was not strange.
The British North America Act was not, however, totally unamendable in Canada. it is true that there was no general amending formula for matters of fundamental importance, such as the distribution of powers between Parliament and the provincial legislatures. However, a number of specific provisions of the Act bore a qualification such as: “Until the Parliament of Canada otherwise provides”, “Unless altered by the Parliament of Canada”, “Until the Legislature of Ontario or of Quebec otherwise provides” or “Until altered by the Lieutenant- Governor in Council.”
In addition, Section 92(1) of the Act provided that the legislature of a province might amend the provinciai Constitution, except as regards the Office of Lieutenant-Governor.
Following 1867, the Government of the United Kingdom was requested by the Canadian authorities, from time to time, to seek legislation by the British Parliament to amend certain parts of the British North America Act which could not be amended in Canada. Gradually, however, the concept of a “Dominion” as something more self- governing and more independent than a colony was developing. although it was not until the Balfour Report of 1926 that the principle was enunciated of the equality of status of the United Kingdom, Canada and the other “Dominions” that were to form the nucleus of the emerging Commonwealth of Nations. This principle was embodied in the Statute of Westminster of 1931, which provided for the equality and independent status of these countries.
As part of that independence, British legislation would no longer apply to a Dominion unless the Dominion asked that it should. Section 7 of the Statute of Westminster, however, excepted the British North America Act and its subsequent amendments from the general removal of Canada from British legislative authority because the governments of Canada and the provinces could not agree upon a formula for the amendment of certain key areas of the Constitution. Thus, the formal power of the United Kingdom was to continue with respect to the amendment of Canada’s Constitution. Although Canada is now fully recognized throughout the world as an independent federal state, this anomalous situation persists because of the inability of governments in Canada to reach agreement.
The Search for an Amending Procedure
The publication of the Balfour Report in 1926 opened the door for Canada to remove itself completely from the legislative authority of the British Parliament. The principal problem to be resolved, as noted above, was that of finding an amending formula for the British North America Act, so final control over the Act could be brought to Canada or, to use the current expression, so the Act could be “patriated.”
(1) The first attempt to solve the problem occurred in 1927 at a Dominion-Provincial Conference. The conference examined a proposal submitted by the Minister of Justice, the Honourable Ernest Lapointe, which invoived patriation with a special amending formula. Agreement of all participants was not forthcoming.
(2) The second attempt to resolve the matter was at the Dominion-Provincial Conference of April, 1931, which was convened in response to representations by Ontario. Unable to obtain agreement on a special amending formula and conscious of the desire of the provinces to maintain their jurisdiction, Prime Minister Bennett introduced a resolution into the House of Commons on June 30. 1931, subsequently approved by the Senate and forwarded to London, requesting that the British North America Acts, 1867—1930, be excepted from the terms of the proposed Statute of Westminster which would allow a Dominion to remove itself from the authority of British legislation.
(3) The third attempt occurred in January, 1935, when the House of Commons established a special committee to enquire into the need to amend the British North America Act and the procedure for amendment. The committee held 10 sessions but did not propose a procedure for amendment in its report.
(4) The fourth attempt originated in the Dominion-Provincial Conference of 1935, which established a sub-conference on constitutional questions under the chairmanship of the Minister of Justice, the Honourable Ernest Lapointe. Following a recommendation of the sub-conference, a Continuing Committee on Constitutional Questions was convened on January 28, 1936. The committee devised an amending formula incorporating elements of flexibility and protection, but it was not adopted.
Between the fourth and fifth attempts to find a special amending formula, an important step was taken by the Right Honourable Louis S. St-Laurent to deal with the more limited question of to what extent Parliament, acting alone, should have the power to amend the Constitution of Canada. The legislatures of the provinces, under Section 92(1) of the British North America Act, already had the power to amend the provincial Constitutions, except as regards the Office of Lieutenant-Governor. The British North America Act was amended in 1949 to grant to the Parliament of Canada the power to amend the Constitution of Canada, with certain exceptions under a new Section 91(1). This was done pursuant to an address passed by the two Houses of the Canadian Parliament. The new section specifically reserved certain matters from the general authority of the Parliament of Canada to amend the Constitution:
(a) the distribution of legislative authority;
(b) the rights and privileges constitutionally granted to the legislatures or governments of the provinces;
(c) the rights and privileges granted to any class of persons with respect to schools;
(d) the use of the English or of the French language;
(e) the requirement that there be at least one session of Parliament annually; and that no House of Commons continue for more than five years from the day of the return of the writs (except if not opposed by more than one-third of the members of the House in time of war, invasion or insurrection).
If an amendment were required in these excepted areas, it was and remains necessary to ask the British Parliament to adopt the appropriate legislation. The areas covered by these exceptions are among the most important parts of the Constitution.
(5) The fifth attempt occurred in 1950, when a Constitutional Conference was convened in Ottawa in January and continued its work in Quebec City in September. It was subsequently suspended because of the Korean crisis and the work was not resumed.
(6) A sixth attempt was inaugurated in July, 1960, at a Dominion-Provincial Conference in Ottawa. The Conference of Attorneys-General met four times during the succeeding 14 months. At first, the Minister of Justice, the Honourable E. D. Fulton, suggested that the authority to amend the Constitution of Canada, in all respects not yet amendable in Canada, be transferred to the Parliament of Canada with its exercise being subject to the consent of the legislatures of all the provinces. It was generally felt, however, that a less rigid formula could be found. A formula was devised in November. 1961, but some differences of view remained and the plan was not carried through.
(7) A seventh attempt began at the suggestion of Prime Minister Pearson in June, 1964. Premier Manning of Alberta, on behalf of the premiers, informed the Prime Minister of the belief that general agreement could be achieved on the basis of the 1961 proposal. At a Federal-Provincial Conference held in October, 1964, a modified version of the 1961 proposal was approved in principle and it became popularly known as the Fulton-Favreau formula in honour of the two federal Ministers of Justice associated with it. Premier Lesage of Quebec subsequently withdrew his support, and consideration of the matter was postponed indefinitely. it was, however, the first time governments in Canada had come so close to full agreement on an amending procedure and the patriation of the Constitution. For this reason, the formula warrants special attention and will be outlined later in this chapter.
(8) An eighth attempt began with the Federal-Provincial Conference of February, 1968, which became a continuing Constitutional Conference. The Constitutional Conference, with its various committees of ministers and officials and its sub-committees, operated from 1968 until the Canadian Constitutional Charter was presented at Victoria in mid-June, 1971.
The Victoria Charter as it became known, provided for a patriation procedure, an amending formula which all governments there represented were prepared to accept, a number of changes in substantive areas, and the modernization of the Constitution.
The amending procedure agreed to at Victoria differed from the Fulton-Favreau formula (and, indeed, from all major prophsals previously considered at federal-provincial meetings) in that the unanimous consent of all 11 legislative bodies in Canada would not be required for the amendment of any part of the Constitution. The Victoria Charter amending formula will also be outlined later in this chapter. At Victoria, it was agreed that the Charter should be reported to all 11 governments for consideration and that if its acceptance, as a whole, was communicated to the secretary of the Constitutional Conference by June 28, 1971, governments would then take the further step of recommending the Charter to their respective legislative bodies.
By June 28, all governments, except those of Quebec and Saskatchewan, had advised the secretary that the Charter was acceptable. The Government of Quebec informed the secretary on June 23 that it could not recommend the Charter to the Quebec National Assembly because the clauses dealing with income security allowed for a degree of uncertainty which was not in keeping with the objectives of the constitutional review. Coupled with this rejection was the qualification that the position of the Quebec government could be different if the uncertainty was removed. A provincial general election was held in Saskatchewan on June 23 and it resulted in a change of government. Given the position of the Government of Quebec, the new premier did not proceed with the matter.
(9) A ninth attempt to reach agreement on an amending procedure and patriation of the Constitution was launched at a dinner attended by the federal and provincial First Ministers in Ottawa on April 9. 1975. Prime Minister Trudeau proposed that they should proceed at an early date toward patriation of the British North America Act on the basis of the amending formula agreed to at Victoria in 1971, for those parts of the Constitution which could not be amended in Canada. He suggested that this should be done without reopening, at that time, any other substantive questions of constitutional revlslon; these could be left for action after the amending procedure had been estabished and the Constitution patriated.
Premier Bourassa of Quebec indicated, at the outset, that he would be able to agree to such action only if it also included constitutional guarantees for the French language and culture. In the course of subsequent discussions, other premiers suggested further additions to the proposal for patriation of the Constitution with an amending formula. These included the parts of the Victoria Charter concerning the Supreme Court and regional disparities. On March 31, 1976, the Prime Minister wrote to the premiers to present a proposal that sought to take account of these various concerns and provide the basis for patriation.
Premier Lougheed of Alberta, on behalf of his colleagues, replied to the Prime Minister on October 14, 1976- He noted that while the more flexible Victoria amending procedure was acceptable to eight of the premiers, he personally wished to return to the more rigid principle of the Fulton-Favreau formula, while Premier Bennett of British Columbia wished to ensure that no amendment of a key entrenched area of the Constitution could be made without the consent of the legislature of his province. Furthermore, Premier Lougheed indicated that the premiers were not unanimously prepared to proceed with patriation of the Constitution and an amending formula without. at the same time, amending the Constitution in certain respects, including a number of amendments related to the distribution of powers.
Although the Prime Minister, in his letter of January 19, 1977, asked the premiers to reconsider their position, no new joint position has since been taken by the premiers on the question of patriation of the
Constitution with an amending formula for key entrenched areas.
On June 12, 1978, the Government of Canada published a White Paper entitled A Time for Action, in which it proposed to proceed toward the constitutional renewal of the Canadian Federation in two phases. During the first phase, the Government of Canada, after consultation with the provinces, would ask Parliament to amend certain areas of the British North America Act that are within the competence of Parliament under Section 91(1).
During the second phase, the Government of Canada, in collaboration with the provinces, would seek to achieve a consensus on changes which should be made in those areas of the Constitution not now amendable in Canada, notably the distribution of powers. Whether or not consensus on an amending formula to permit full amendment of the Constitution in Canada should be achieved simultaneously with, or prior to completion of, the second phase is a question that has yet to be decided.
Before looking at options for an amending procedure for key entrenched areas, however, it will be useful to summarize the various precedents already established and to describe in detail both the Fulton-Favreau formula and the Victoria amending formula.
Observations Based on Fast Practice
The Parliament of the United Kingdom amended the British North America Act on a number of occasions between 1867 and 1964, and, on the basis of the manner in which proposed amendments were handled, four observations may be drawn.
(a) The first observation is that although an enactment of the United Kingdom Parliament is necessary to amend those parts of the British North America Act not yet amendable in Canada, such action is taken only upon a formal request from Canada. Furthermore, every amendment requested by Canada has been enacted.
(b) The second observation is that the Government and Parliament of the United Kingdom will not act at the request of a province or of provinces on the grounds that the United Kingdom should not intervene in the affairs of Canada except on the advice of the Government of Canada acting on behalf of all of Canada.
(c) The third observation, closely related to the first two, is that the sanction of the Parliament of Canada, by means of a “Joint Address” of both Houses to the Crown, is required for a request for an amendment of the British North America Act. In 1895, the Government of Canada successfully requested, without a Joint Address, an amendment which sought confirmation of a federal statute providing for the appointment of a Deputy-Speaker of the Senate. However, since then, the practice has invariably been to seek amendments by a Joint Address.
(d) The fourth observation is that, although not constitutionally obliged to do so, the Government of Canada, before asking Parliament to adopt a Joint Address, sought and obtained the consent of all provinces on the three amendments (1940, 1951 and 1964) that involved the distribution of powers.
The nature and the degree of provincial participation in the amending process have not lent themselves to easy definition. There have been five instances—in 1907, 1940, 1951, 1960 and 1964—of federal consultation with all provinces on matters concerning all of them. There has been only one instance—in 1930—in which an amendment was sought after consultation with only those provinces directly affected by it. Finally, there have been 10 instances—in 1871, 1875, 1886, 1895, 1915, 1916. 1943, 1946, and two in 1949—of amendments to the Constitution without prior consultation with the provinces on matters that the federal government considered were of exclusive federal concern. In the last four of these, one or two provinces protested that federal-provincial consultations should have taken place prior to action by Parliament.
The Fulton-Favreau and Victoria amending formulae sought to define the requirements for provincial consultation and consent.
The Fulton-Favreau Formula
The Fulton-Favreau formula was drafted in the form of an Act in 1964 and, like previous proposals put forward at federal-provincial conferences, it was highly complex. All amendments of the Constitution would take the form of an Act of the Parliament of Canada, subject, in a wide range of matters, to the concurrence of provincial legislatures. The formula provided for unanimous consent for certain classes of subjects, including the entire range of the distribution of powers. Otherwise, it provided for varying degrees of flexibility, depending upon the subject matter. it further restricted the power of the Parliament of Canada to amend the Constitution under 91(1) by adding the following items to the excluded categories: the functions of the Queen and the Governor General; provincial representation in the Senate, the residence qualifications of Senators and the requirements for summoning; the right of a province to no fewer MP’s than Senators; the principles of proportionate representation in the House of Commons; and the use of the English or French language. On the other hand, the Fulton-Favreau formula introduced a new kind of flexibility with the concept of the delegation of legislative authority.
Before turning to the Victoria amending formula, it would be useful to examine the details of the Fulton-Favreau formula of 1964.
A Proposed Act to Provide for the Amendment in Canada of the Constitution of Canada (1964)
(a) The power to amend, repeal or re-enact any provision of the Constitution of Canada is accorded to the Parliament of Canada, subject to the other provisions of Part I.
(b) No amendment to the proposed 1964 Act, to Section 51A of the British North America Act of 1867 (a province’s representation in the House of Commons shall not be less than the number of Senators for the province), or to any other provision of the Constitution of Canada relating to
i) the powers of the legislature of a province to make laws;
ii) the rights or privileges granted or secured by the Constitution of Canada to the legislature or the government of a province;
iii) the assets or property of the province; or
iv) the use of the English or French language
shall come into force unless it is concurred in by the legislatures of all the provinces.
(c) The provisions of (b) do not apply to provisions of the Constitution of Canada which refer to one or more, but not all of the provinces, in which case only the approval of the provincial legislature concerned is required.
(d) Provisions of the Constitution of Canada respecting education in any province other than Newfoundland can only be amended by the concurrence of all provincial legislatures, except Newfoundland, and similar provisions respecting Newfoundland require the approval of that province’s legislature.
(e) For matters not otherwise provided for—including most of the exceptions to the exclusive power of amendment of Parliament—-the consent of two-thirds of the provincial legislatures is required.
(f) The Parliament of Canada may exclusively make laws to amend the Constitution of Canada in relation to the executive Government of Canada, the Senate and the House of Commons, except as regards
i) the functions of the Queen and the Governor General in relation to the Parliament or Government of Canada;
ii) the requirements of the Constitution of Canada respecting a yearly session of Parliament;
iii) the maximum period fixed by the Constitution of Canada for the duration of the House of Commons, except that the Parliament of Canada, may in time of real or apprehended war, invasion or insurrection, continue a House of Commons beyond such maximum period, if such continuation is not opposed by the votes of more than one-third of the members of the House;
iv) the number of members by which a province is entitled to be represented in the Senate;
v) the residence qualifications of Senators and the requirements of the Constitution of Canada for the summoning of persons to the Senate by the Governor General in the Queen’s name;
vi) the right of a province to a number of Members in the House of Commons not less than the number of Senators representing the province;
vii) the principles of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada; and
viii) the use of the English and French language.
For these matters, the amending formulae would be one of the preceding formulae—in most cases, (e).
(g) Provincial legislatures may amend their own Constitutions except as regards the Office of Lieutenant-Governor.
(h) Provisions not covered under the authority of (f) or (g) are subject to the procedures of (a) to (e) of the Act.
(i) Parliament and the legislatures retain any amending power they might possess under specific provisions of the Constitution.
(j) The expression “Constitution of Canada” is defined.
(k) Sections 91(1) and 92(1) are repealed.
(I) A section was added to permit four or more provinces to authorize Parliament to enact specific laws within what would otherwise be a provincial field of jurisdiction, and similarly to permit Parliament to authorize four or more provinces to enact specific laws within a field that would otherwise be under federal jurisdiction.
The Victoria Amending Formula
Unlike the Fulton-Favreau formula, the Victoria amending formula was characterized by a relative degree of simplicity. it departed significantly from all previous proposals in that no amendment to the Constitution of Canada would require the unanimous consent of the provincial legislatures. Amendments to key areas of the Constitution, including the distribution of powers and matters excepted from the exclusive power of Parliament, could be made with the consent of Parliament and the consent of the legislatures of two Atlantic provinces, of Quebec, of Ontario and of two Western provinces representing at least 50 per cent of the population of the Western provinces. Amendments applying to one or more, but not all, of the provinces could be made with the consent of Parliament and the legislatures involved. Amendments to the Constitution would take the
form of a Proclamation of the Governor General rather than of an Act of Parliament. Finally, provision was made for Parliament and the legislatures each to exercise certain exclusive powers of amendment.
For the purpose of a better comparison with the Fulton-Favreau formula, the details of the Victoria amending procedure may be set out in the following manner:
(a) Amendments to the Constitution of Canada may be made when authorized by a joint resolution of Parliament and resolutions by legislatures in a majority of the provinces. including:
i) any province having or having had 25 per cent of the population of Canada;
ii) at least two Atlantic provinces; and
iii) at least two Western provinces having at least 50 per cent of the population of the Western provinces.
(b) Amendments to any provision that applies to one or more, but not all, of the provinces require a joint resolution of Parliament and resolutions by the provincial legislatures concerned.
(c) The House of Commons may, under a determined procedure, override the lack of affirmative action by the Senate.
(d) The Senate, the House of Commons or the legislature of a province may initiate a resolution under (a) or (b) and a resolution may be revoked at any time before the issue of a proclamation authorized by it.
(e) The Parliament of Canada may exclusively make laws to amend the Constitution with respect to the executive Government of Canada, the Senate and the House of Commons.
(f) Each provincial legislature may exclusively make laws to amend its own Constitution.
(g) Notwithstanding (e) and (f), the following matters may only be amended in accordance with the procedure in (a) above;
i) the office of the Queen, of the Governor General and of the Lieutenant-Governor;
ii) the requirements of the Constitution of Canada respecting yearly sessions of the Parliament of Canada and the Legislatures;
iii) the maximum period fixed by the Constitution of Canada for the duration of the House of Commons and the Legislative Assemblies;
iv) the powers of the Senate;
v) the number of members by which a province is entitled to be represented in the Senate, and the residence qualifications of Senators;
vi) the right of a province to a number of Members in the House of Commons not less than the number of Senators representing the province;
vii) the principles of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada; and
viii) except as provided in another section of the Charter, the requirements of the Charter respecting the use of the English or the French language.
(h) The procedure in (a) above may not be used when there is another procedure for amendment in the Constitution, but it may be used to amend any amending procedure in the Constitution or to make a general consolidation or revision of the Constitution.
The Victoria amending formula abandoned the full rigidity of the specially protected elements of the Fulton-Favreau formula (unanimous concurrence of all provincial legislatures) and introduced the notion
of regional protection (concurrence of the legislatures ol two Atlantic provinces, of Quebec, of Ontario and of two Western provinces, representing at least 50 per cent of the population of the Western provinces).
Both the Fulton-Favreau formula and the Victoria formula provided protection for the Monarchy, the office of the Governor General and that of Lieutenant-Governors. The Fulton-Favreau formula protected certain provisions respecting the Parliament of Canada and the House of Commons, to which the Victoria formula added certain provisions respecting provincial legislatures. Both the Fulton-Favreau formula and the Victoria formula protected certain provisions respecting the Senate, although the Victoria formula went further and added the powers of the Senate. Both entrenched the use of the English and French languages, although the Victoria formula was part of a larger Charter which was more explicit about the use of those languages.
On the other hand, the Victoria amending procedure did not provide special and explicit protection for the assets and property of a province, as the Fulton-Favreau formula had done, nor did it contain a section dealing with the delegation concept, which added a degree of flexibility to the otherwise rigid procedure governing the distribution of powers in the Fulton-Favreau formula.
Finally, both formulae were based on the premise that constitutional amendment should require the concurrence of Parliament and the provincial legislatures and not simply the concurrence of governments.
Constitutional Renewal and the Amending Formula
In A Time for Action, the Government of Canada noted that in order to complete the renewal of the Constitution, it is essential that agreement be reached at an early point on the procedure for changing those parts of the Constitution that cannot or should not be amended by legislative action taken alone by either the Parliament of Canada or the legislatures of the provinces. Agreement within Canada on such an amending procedure would imply the termination of the power of the Parliament of the United Kingdom to legislate with respect to the Canadian Constitution and the total transfer of the Constitution to Canada.
It is appropriate, then, that public debate should now begin on the nature of the amending procedure that Canadians might wish to adopt to provide for the full capacity in Canada to adjust the Constitution in the years ahead to meet changing circumstances-This debate will not occur in a vacuum: the question of a special amending procedure has been discussed intermittently for over 50 years. Furthermore, the experience of certain other federations, such as the United States, Switzerland, Australia, and the Federal Republic of Germany, while particularly suited to their own circumstances, may nonetheless offer useful guidance.
It is imperative at the outset to underline three things. First is the need for an element of rigidity or stability. Federations result from a desire among the constituent units for a political union in which complete legislative authority would not be vested in a single central legislature. While important legislative powers are assigned to the central legislature, equally important ones are also allocated to the legislatures of the constituent units. Federations are therefore characterized by an interplay of centripetal and centrifugal forces. it is the lack of homogeneity and the less than complete identity of interests among the units that lead the framers of federal constitutions to deal in a special way with the distribution of legislative powers and other matters of particular significance to both the central legislature and the legislatures of the units. Such matters are normally “entrenched” in the Constitution, that is, placed beyond the sole action of any one legislative body. Entrenchment is usually designed with elements of rigidity to provide a guarantee to the various units of a federation that their particular interests will not be jeopardized by another government acting on its own.
Second is the need for an element of flexibility. The circumstances in which Constitutions are born change over time, and the procedure for constitutional amendment must contain sufficient elements of flexibility to permit adjustment when necessary. if the procedure adopted is too rigid or cumbersome. there is a danger that action may not be possible when needed and that the Constitution may gradually lose its vitality and relevance. A completely rigid procedure could become a strait-jacket, impairing the capacity of a people to prosper and develop. Such a procedure would provide the maximum protection possible for the interests of the constituent units at the time of entrenchment, but would make it harder, rather than easier, for the legislatures of the constituent units, as well as for the central legislature, to obtain protection for other interests as circumstances changed. Finding the appropriate balance between rigidity and flexibility will be the most difficult question to be resolved.
Finally, all Constitutions, whether unitary or federal, must, in the last analysis, be predicated on good faith and provide a secure base for rights and freedoms. A Constitution based on deep-seated mistrust or misunderstanding can never succeed. A free and democratic people will enter a constitutional debate with generosity of spirit, confident in the future and trusting in the ultimate good sense of the citizens. Such a people will recognize that democracy is not merely the rule of the majority and that for many citizens, their sense of security would be assured by constitutional guarantees designed to protect their particular concerns from harmful actions by governments and legislatures, whether by inadvertance or insensitivity. The need for such assurances would seem to be greater in a federal
state where different orders of government can have conflicting concepts of the rights and freedoms of the people.
The Fulton-Favreau Formula and the Victoria Charter Formula
Bearing in mind these considerations. one may examine the two major amending procedures developed in Canada over the past 25 years, both of which came close, in their day, to universal acceptance: the Fulton-Favreau formula of 1964 and the Victoria Charter formula of 1971.
Seen in retrospect, the Fulton-Favreau formula (which has already been described in Chapter III) would have provided Canada with the most rigid amending procedure of any federation for changing key entrenched areas of its Constitution, with the exception of the Federal Republic of Germany where, as noted in Chapter II, certain types of amendments are ruled out altogether by the Constitution. Under the Fulton-Favreau formula, the agreement of all provincial legislatures and the Parliament would have been required for the amendment of a wide range of matters. The ultimate rejection of the formula by Premier Lesage, in large measure because of its excessive rigidity, may well have been a decision of ultimate benefit to all of Canada. Nevertheless, a re-examination of some aspects of this formula may be useful in the renewed search for an amending procedure that would be generally acceptable to Canadians.
A new attempt was made during the period of constitutional review, between 1968 and 1971, to devise a procedure that would achieve a better marriage of the need for rigidity with the requirements of flexibility. The amending formula included in the Victoria Charter was less rigid than the Fulton-Favreau formula, although it too was less flexible than those of most of the other major federations of the “Western” world which have adopted procedures generally based on special mathematical majorities without requiring the assent of any specific region or constituent units (for example: a majority of the electors voting in the country as a whole, coupled with a majority of those voting in a majority of the constituent units). The Canadian situation dictated a procedure that took cognizance of two basic facts, among others:
(a) Canada has always been, and is still today, a country with exceptionally strong regional identities, and the interests of the several regions are by no means always congruent; and
(b) Canada is a country where the persistence of English and French as the two principal languages spoken by Canadians has proven to be one of the most enduring characteristics of our national identity, with those speaking French living principally in the Province of Quebec, and those speaking English living principally in the other provinces.
In consequence of these considerations, it was proposed in the Victoria Charter of 1971 (which has been described in Chapter lll) that key entrenched areas of the Constitution could be altered only with the agreement of Parliament, two legislatures in Atlantic Canada, the legislature of Quebec, the legislature of Ontario and the legislatures of two provinces in Western Canada representing at least 50 per cent of the population of the Western region. While the Fulton-Favreau formula would have required the agreement of all 11 legislative bodies for such key amendments, the Victoria Charter procedure would have required the consent of Parliament and of at least six provincial legislatures representing about 80 per cent of Canada’s population. All of the participants at the Victoria Conference agreed that this arrangement should form part of the Victoria Charter, which would be reported to all 11 governments for consideration. The Government of Quebec subsequently decided not to proceed with legislative approval of the Charter for reasons related to the provisions respecting social policy. Learning of the Quebec government’s decision, the newly elected Government of Saskatchewan also did not proceed with the matter.
The consensus achieved at Victoria has weakened somewhat over the past three years. Although they would still appear willing to proceed on the basis of the Victoria amending procedure, two premiers have queried the necessity of retaining the population qualification for the concurrence of legislatures in Western Canada, while one premier has expressed a desire to have British Columbia treated as a full region in its own right. Finally, one premier has called for a return to the “unanimous consent” procedure put forward in the Fulton-Favreau formula for certain entrenched areas of the Constitution.
The Government of Canada is not wedded to the Victoria amending formula. Nevertheless, the proposal put forward at Victoria did manage, in a way no other proposal had done before, to strike a balance between, on the one hand, the need for protecting the interests of a particular province and. on the other, the need for a degree of flexibility to serve the interests of the provinces in general and the country as a whole. Furthermore, the Victoria formula achieved a greater degree of simplicity than any previous proposal. The Victoria amending formula. then, would appear to present a useful point of departure in the current quest for a method of amendment capable of securing the greatest degree of agreement and support among the governments and legislative bodies and the people of Canada.
A possible modification of the basic Victoria procedure will now be examined which would include the limited use of popular referenda as a supplement to the basic procedure. A further way of amending the Constitution will also be considered, and that is the use of referenda as an alternative to the final decision-making role of Parliament and the legislatures.
The Victoria Formula—Coupled with an “Appeal Procedure”
In the case of the Victoria procedure it is apparent that a proposal to amend the Constitution may fall for the want of the approval of a single region, as expressed by the provincial legislature or legislatures concerned, or of Parliament. This would happen, on the one hand, if Parliament and three regions were in favour and one region opposed, and on the other hand, it four regions were in favour and Parliament opposed. Since requiring this degree of assent is stringent. compared with amendment procedures in the other federations described in Chapter II, it may be argued that there should be a supplementary mechanism that might allow for greater flexibility. Such a mechanism could take the form of providing that, in certain circumstances. an appeal may be made from the dissenting vote of provincial legislatures or of Parliament to the vote of the people, to be expressed in a popular referendum, in the manner explained below.
The question of whether and in what circumstances a, legislative body should be overruled by a popular referendum is a complex one. involving considerations of whether the legislature still has a “mandateâ€ to represent the voters; whether the fortunes of Canada’s “first past-the-post” electoral system may have, in the case in question, resulted in a government which, while it has a majority of seats, was elected by much less than a majority of voters; and, perhaps more fundamentally, whether decisions are better made and minority interests better taken into account by the people directly in a popular vote, or by a legislature.
There does seem to be a trend in some democracies to take a greater interest in mechanisms which reflect more closely the wishes of the majority, whether that be in a referendum process or in a system based on proportional representation. The Government was attempting to respond to this trend both in its recent Referendum Bill and in its proposals for the new House of the Federation, where representation of political parties would, to a large extent, be proportional to the popular vote.
If Canadians believe that a popular referendum may, in some circumstances, be an appropriate way
of making decisions, the mechanism could be used for amending the Constitution, either to the exclusion of other procedures—and this option will be discussed later—or as a supplement to a procedure such as the basic Victoria formula. In the latter case, the following possibilities could be considered:
(a) if a sufficient number of provincial legislatures approve a proposed amendment, so that all four regions are of one mind, and if Parliament takes the opposite view, a national referendum could be heid if the provinces so requested to ascertain the wishes of the majority of Canadians.
(b) if three regions and Parliament favour an amendment but the fourth region is opposed, as determined by the vote of the legislature or legislatures concerned, a referendum could be held in the dissenting region to ascertain the wishes of Canadians in that region. A majority of those voting in the region would decide the issue.
The “appeal procedure” provided by (a) and (b) above to the Victoria procedure could make it somewhat easier to amend the Constitution by providing for more ways of having an amendment approved. It should be noted that the aditional flexibility which results from an appeal to supplementary popular referenda works, of itself, neither in the direction of additional power for Parliament nor of additional power for provincial legislatures.
The Exclusive Use of Referenda
One could, of course, provide in the Constitution that all amendments should be brought about only by popular vote, thus excluding a role in the final decision process either for Parliament or for the provincial legislatures. One would then provide for different kinds of referenda to correspond with the subject matter of the proposed amendment. For example, there could be
(a) a provincial referendum for matters which require the consent of the province concerned;
(b) a national referendum, with a majority required in each province, for matters which require provincial unanimity;
(c) a national referendum, with a majority required in each of the four regions, for matters which are to be subject to a Victoria-type “regional consensus” formula.
Some of the arguments for and against referenda have already been mentioned. There are others. One may, in Canada, argue against their use on the grounds that they have not been part of our national tradition. One may also argue that it is both difficult and unwise to submit complex questions (and some constitutional amendments will necessarily be compiex) for decision by this means. On the other hand, it may be argued that a referendum stimulates public interest and debate, and can make a positive contribution to the political process.
The Government of Canada has already introduced a Bill providing for the possibility of referenda on constitutional matters. That Bill does not propose specific ways of using the referendum instrument for constitutional amendment. The Government of Canada will be interested in the views of the provinces and of others on this question.
In Summary: Four Alternative Ways of Amending the Constitution
The various possibilities for constitutional amendment which have been discussed in this chapter are listed below:
1. The Fulton-Favreau formula
2. The Victoria formula
3. The Victoria formula supplemented by referenda
4. The exclusive use of referenda
Initiation of Constitutional Amendments
The Constitutions of several countries provide for a formal method of proposing or “initiating” constitutional amendments that is different from the method for deciding upon or “ratifyingâ€ the amendments. The initiation procedure is usually easier in that it involves the agreement of fewer people or legislative bodies. The rationale for having a different and easier procedure may be compared with the rationale for allowing the introduction of legislation by legislators or groups of them who cannot, acting alone, ensure the passage of the legislation. in either case, whether that of a constitutional amendment or of legislation. the process of initiation permits a demonstration of concern and a statement of position, which in turn can stimulate political debate and the process of decision-making.
Because the initiation procedure usually imposes obligations on those who decide on constitutional amendments, whether they be legislators or the people voting in a referendum, to give serious and formal consideration to what has been proposed (which they may then accept or reject), the procedure should not give rise to an excessive number of proposals; nor on the other hand should valuable initiatives be deterred. Again, as with the final decision-making procedure itself, it is a question of finding a reasonable balance. it is worth looking at the procedures that some other federal countries use, and to recall the initiation procedure that was envisaged in the Victoria Charter.
In Australia, the power to initiate constitutional amendments rests solely with the federal Parliament. lf Parliament concurs in a proposal, if is then put directly to the people in a national referendum for ratification. While the states can suggest amendments, they have no formal power to initiate them.
In the United States. two methods of initiation are provided for: amendments may be proposed to the states following a vote of two-thirds of both Houses of the federal Congress; or, on the application of the legislatures of two-thirds of the states, Congress is obliged to call a convention for proposing amendments. Provision is also made for two methods of ratification, either of which may be proposed by Congress: ratification by the legislatures of three-fourths of the states or by conventions in three-fourths of the states.
In Switzerland, amendments to the federal Constitution may be initiated by the federal iegislature or by a petition of 100,000 registered voters. in the latter case. the federal legislature may add a counterproposal. The amendment is then voted on in a referendum.
In Germany, the initiation and ratification process both take place within the federal Parliament where the states are represented directly in the Upper House.
It is evident that in these four countries, the federal legislature is given a key role in the procedure for initiating constitutional amendments. No state or cantonal legislature can, acting on its own, propose an amendment.
The Victoria amending procedure provided that, for the most rigorously entrenched parts of the Constitution, either the Parliament of Canada or the legislature of a province could propose a constitutional amendment. initiation of a proposal by any legislative body would constitute. at the same time, ratification by the same body. This was a sort of informal initiation procedure, however, as initiation by Parliament or a legislature carried with it no obligation for any other legislative body to consider and decide upon what had been proposed.
Various alternatives, in addition to the method suggested at Victoria, could now be considered on their merits. One new element in the situation, as compared with that existing at the time of the Victoria Charter, is the proposal for a new kind of second chamber for the Canadian Parliament. if the new House of the Federation, proposed in the Gov-
ernment’s Bill C-60, finds general acceptance and is incorporated in Canada’s Constitution, it would add to our political system an important new institution for the expression of regional interests which might be given some role to play in the initiation process. it might supplement, rather than substitute for the role of provincial legislatures so far as initiating constitutional amendments is concerned.
Among the additional alternatives which could be considered are the following. in some cases two or more of them could co-exist with one another:
(a) Parliament acting alone.
(b) A combination of any four provincial legislatures, to include one from each of the four regions.
(c) Any one region acting alone, a region being defined as in the Victoria formula, e.g., the legislature of Ontario, or any two from the Atlantic region.
(d) A two-thirds vote of the new House of the Federation.
(e) A popular initiative consisting, for example, of a certain minimum percentage of registered voters, from across the country as a whole, or from each of four regions, or from one region, the percentages possibly differing in each case.
In addition to all of the above questions, certain procedural matters would have to be addressed in the final provisions in the Constitution which relate to constitutional amendment. For example, the time limits which should apply for the handling of constitutional initiatives may need to be spelled out, as may the method of agreeing upon a satisfactory wording of a proposed amendment.
The document A Time for Action, which was tabled in Parliament on June 12, 1978, sets out the first segment of the Government’s proposals for the renewal of the Canadian Federation. On the question of an amending formula and “patriation,” the Government has not brought forward new proposals of its own, but has emphasized the need for governments to work together toward a solution. A Time for Action says this:
“It is essential that agreements be reached at an early point on a procedure for changing those parts of our Constitution that cannot now be amended by either the Parliament of Canada or the legislatures of the provinces. We will have to go to London for action by the British Parliament to make many of the changes that will emerge from the work of renewal. This is demeaning for an independent country, but a legal necessity since we have never remedied the omission in the legislation of 1867 to provide a complete method of amending the British North America Act in Canada . . . . . . . . . . . . it is now imperative that we find a means by which all change in our Constitution can in future be made in Canada.
“Patriation of the Constitution will be the result of the final action by the Parliament of Great Britain in respect of Canada. That action will be to terminate the British Parliament’s power to legislate with respect to our Constitution—a power, unwanted by Britain, which has endured solely because of our own failure to agree on a complete method of amendment. when we have reached such agreement we can, at last, encompass the total transfer of our Constitution to this country. After more than a century as a nation, we shall have “patriated” our Constitution. We shall have reached the end of more than 50 years of effort to achieve this goal.”
The Government hopes that the historical review and the examination of alternatives, which are being made available through the publication of this paper on The Canadian Constitution and Constitutional Amendment, will be a useful contribution to the important discussions that will soon be joined.