Studies on the Canadian Constitution and Canadian Federalism

Last revised:
26 February 2001

Patriation

Claude Bélanger,
Department of History,
Marianopolis College

Constitutional experts call patriation the process by which the power to amend the Canadian constitution would be transferred from the Parliament of the United Kingdom to Canada. As it stood at Confederation, the power to amend the Constitution Act, 1867, rested in the hands of three different legislative bodies: the Parliament of the United Kingdom (Canada continued to be a colony; a clear sign of colonial status is that a colony does not control its own constitution), the Parliament of Canada and the provincial legislatures. Each had some control over the amendment of the Act depending on the subject matter at hand:

1) the provincial legislatures could change their own constitution (s. 92. 1) except for the Office of the Lieutenant-Governor;

2) the Parliament of Canada had the power to amend alone several sections of the Constitution Act which referred to its own Constitution (ss. 12, 18, 35. 40-41, 47, 52, 105, 120, 130-131) or the office of the Lieutenant-Governor;

3) the Parliament of the United Kingdom retained the power to amend the rest of the Act and in particular the important sections relating to the distribution of powers between the two levels of government. Since the enactment of the Statute of Westminster, in 1931, it is understood that the Parliament of the United Kingdom may not amend the Canadian constitution without the explicit assent of Canadians. However, who, in Canada, is to give the assent and in what form was not agreed upon by the governments in Canada despite several federal-provincial conferences on the subject between 1927 and 1982.

The issue was partially solved in 1949 by the passage of the Constitution Act, 1949, which became s. 91(1) of the Constitution Act 1867. It empowered the federal Parliament to amend its own constitution except in relation to the articles which relate to provincial powers (ss. 92-95), to schools, and linguistic rights of Canadians (ss. 93 and 133), to s. 20 (one session of Parliament pier year) and s. 50 (House of Commons is not to last more than five years).

It was over control of the amending process of these articles that the debate centered between 1949 and 1982. As it stood until patriation was achieved in 1982, it was clear that the amendment power over the reserved subject matters rested in the hands of the Parliament of Great Britain following a joint address of the two Houses of the Parliament of Canada and some form of provincial participation and consent. How much provincial consent would be required was only clarified after a reference case was submitted to the Supreme Court in 1981. The Trudeau Government had proposed to patriate the constitution and to amend it unilaterally with only the support of Ontario and New Brunswick. The Court declared that such unilateral patriation would not be illegal (given the absence of a law) but that it would violate the conventions of the constitution. Trudeau was forced to discuss further the issue with the provinces and to achieve an agreement in November of 1981. This became the Constitutional Act, 1982. Only the province of Quebec refused assent to the new constitution as it was displeased with some of the provisions, particularly with the lack of a constitutional veto for the province.

The new amending formula is found in Section V of the Constitutional Act, 1982. Its main features are:

s. 38 (1) creates a general amending formula. Under its terms, an amendment may be made to the constitution upon a Proclamation to be issued by the Governor-General if such a Proclamation is authorized by a resolution of the Senate and the House of Commons and by a resolution of the legislatures of at least two third of the provinces containing at least fifty per cent of the population of the provinces.

s. 38 (3) permits a province to express its dissent from a constitutional amendment and to make it inapplicable to the province. Such a right of opting-out only applies to amendments that touch on the "rights or privileges of the legislature or government of a province".

s. 39 (1-2) A proclamation of amendment may be made in less than a year if all the legislatures of the provinces and the federal parliament have pronounced on the subject. A proposal of amendment will not extend over more than three years from the moment that the amendment was initiated.

s. 40 where an amendment is made that transfers a power over "education or other cultural matters" from the provincial level to the federal one, the federal government will provide "reasonable compensation" to a province that has opted out of the amendment as per 38 (3).

s. 41 an amendment affecting the Queen, the Lieutenant-Governor or the Governor-General, the composition of the Supreme Court, the use of the English or the French languages, the right of a province to a number of members of the House of Commons that is no less than the number of senators attributed to the province and a change to the amending formula require the consent of the federal parliament as well as the legislative assemblies of all of the provinces.

s. 42 the general amending formula outline in 38 (1) also applies to the following types of amendments: proportionate representation in the House of Commons, powers and method of selection of senators, representation of a province in the senate, the Supreme Court of Canada, the extension of the borders of a province into the territories and the establishment of new provinces.

s. 43 an amendment that applies to more than one province but not to all may be amended by a proclamation where authorized by the Parliament of Canada and of the Legislature of each province to which the amendment is meant to apply.

s. 44 the Parliament of Canada may amend its own constitution.

s. 45 the legislature of a province may amend its own constitution subject to section 41.

s. 47 provides that an amendment by proclamation that applies to ss. 38, 41, 42 and 43 may be made without the assent of the Senate of Canada if the House of Commons readopts the proposed measure within 180 days that it was initiated in the House of Commons.

The record shows that there was general satisfaction with the Constitutional Act, 1982, especially in English-speaking Canada but that this was not the case in Quebec. Attempts to deal with this issue, in the Meech Lake Accord and in the Charlottetown Accord have both failed. The dissatisfaction of Quebec continues to plague the constitutional process in Canada and has served to fuel the desire for separation.

© 2001 Claude Bélanger, Marianopolis College