150 Years On: What is the Constitution of Canada?–Part 3 of 3–A Doctrinal Approach to the Problem of Identification

Editor’s Note: This is the third post in a three-part series to mark the 150th anniversary of Confederation in Canada. In their three posts, Maxime St-Hilaire, Patrick Baud and Éléna S. Drouin offer critical reflections on a provocative question: What is the Constitution of Canada? Their first post is available here and their second here.

––Maxime St-Hilaire, Université de Sherbrooke; Patrick F. Baud, McGill University; and Éléna S. Drouin, McGill University

This last post of our series aims to clarify how one can better define the procedure that allows the amendment of the supreme law of Canada, a procedure that, as we submitted in our previous posts, represents the best criterion to determine whether or not a provision is part of this very supreme law.

The Canadian constitutional amendment procedure: a new, thought-economical, account

Canada’s threefold constitutional amendment procedure is mostly set out in Part V of the Constitution Act, 1982 (CA 1982). It is asymmetrical, composed of a default, or “normal” procedure and two specific, or “exceptional” ones. We will start with the two exceptions.

The first and most onerous of all three procedures resides in the combination of sections 41 (necessary authorizations), 46 (initiative and revocation of authorization), 47 (overriding of the Senate’s failure to authorize an amendment by the House of Commons), 48 (Privy Council’s duty to advice the Governor General to issue the proclamation), and, most likely subsection 39(2) (imposing a three-year time limit starting with the first authorizing resolution). It is the most burdensome procedure because it requires the authorization of all ten provincial legislative assemblies. This procedure applies to amendments in relation to:

41…(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 of 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.

The second specific procedure is provided for by the combination of sections 43, 46, 47, 48, and arguably, subsection 39(2).

Unlike the first procedure, it is considerably less demanding than the default procedure (which we will detail below). The only legislative assembly whose authorization it requires is that of “each province to which the amendment applies”. This could very well be only be one province. This procedure applies to amendments “43…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 provision that relates to the use of the English or the French language within a province”. Section 43 has not only been used to amend existing provisions of the supreme law, but also to enact one: section 16.1 of the Charter, which guarantees that

[t]he English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

The third and final constitutional amendment procedure presents itself as the “normal” or default one. It is determined by the combination of sections 38, 39 (subsection 39(1) creates a one-year waiting period and 39(2) creates a three-year time limit), 40 (compensation resulting from certain amendments), 42, 46, 47, 48, and arguably, section 35.1 (amendments to provisions regarding Aboriginal Peoples) of the CA 1982—assuming, for the sake of the argument,  it is valid, and if so, justiciable.

Many Canadian constitutionalists approach section 42, and its intrinsic connection with subsection 38(1) and sections 39, 46, 47, and 48, as if it were a distinct amendment procedure. It is also possible, and perhaps more “Occamian”, to understand section 42 as an adjustment of the default procedure for specified matters. Indeed, subsection 42(1) refers to 38(1), the latter of which provides for the central elements of the default procedure, making it clear that subsection 38(1) applies to an amendment “in relation to the…matters” set out in subsection 42(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.

According to subsection 42(2), subsections 38(2) to (4) – which require an absolute majority of the members of a legislative chamber for a resolution of assent to be passed and grant a (revocable) right to withdraw – do not apply to amendments that fall under subsection 42(1). Moreover, irrespective of the issue of whether compensation under section 40 is only available when the right to withdraw granted by subsection 38(3) has been exercised, the category of amendments to which section 40 applies does not overlap with those described by subsection 42(1).

More demanding than the “bilateral” special procedure of section 43, but less stringent than the “unanimity” special procedure of section 41, this normal procedure requires the authorization of “the legislative assemblies of at least two thirds of the provinces that have, in the aggregate, according to the latest general census, at least fifty per cent of the population of all the provinces”, in addition, of course, to the authorization of the House of Commons, the Senate (whose failure to authorize an amendment may be overridden by the Commons), and the issuance of a proclamation by the Governor General. Subsection 38(1) refers to the total “population of all the provinces”, which is smaller than Canada’s population, excluding the population of the territories, which may not participate in the constituent competency.

A problematically overlooked loophole

In the absence of any conceivable, complete list of the provisions that might be included in the supreme law of Canada, the presence (within this list) of a residual constitutional amendment procedure, in addition to specific ones, jeopardizes what should otherwise have been a quite efficient procedural criterion for identifying such provisions. Indeed, after determining that a proposed enactment does not come under the ambit of either special procedures under sections 41 and 43 or any of the specified instances of application of the adjusted “normal” procedure under section 42, one is, as long as the proposed enactment’s substance is somehow “constitutional” in nature—dealing with government or rights—left with the question of whether this enactment is within the jurisdiction of one of the regular legislators—and thus a matter of (formally) ordinary legislation—or within that of Canada’s constituent competency by falling under subsection 38(1) of the CA 1982—and thus a matter of supreme law.

Since Canada is a federation, one might be tempted to think that the solution to the problems created by Canada’s confusing constitutional amendment procedure lies in checking whether the proposed enactment comes within the ambit of one of the distributed legislative competencies between the federal parliament and provincial legislatures, including those provided in sections 44 and 45 of the CA 1982. There is a snag. Like any federation, whose definition of legislative heads of power must be exhaustive, Canada has a supreme law that provides for a residual legislative competency. In Canada, that competency is conferred on the federal parliament by the opening words of section 91 of the CA 1867, with the relative exception of subsection 92(16) of the CA 1867, which confers exclusive jurisdiction to provincial legislatures over “[g]enerally all Matters of a merely local or private Nature in the Province”.

By imposing limits to the federal residual legislative competency—setting aside its “emergency branch”, the judicially recognized competency to alter the federative division of competencies in emergency situations – the “national dimensions branch” should have resolved this problem by providing a criterion to determine whether a given provision falls under the formally ordinary federal legislative competency. If it does not fall under the residual legislative competency, then the provision falls under the residual constituent competency under subsection 38(1) of the CA 1982. However, the national dimensions doctrine seems to be falling, if it has not already fallen into oblivion, as it has not even been pled in recent division of competencies cases. Consequently, in our opinion, the trial judge in the case challenging the Succession to the Throne Act, currently on leave to appeal at the Quebec Court of Appeal, failed to consider whether the federal statute validly fell under the federal residual legislative competency under the opening words of section 91 of the CA 1867 or required an amendment under the residual constituent competency under section 38 of the CA 1982, making it therefore invalid.

The question whether an enactment is subject to section 38 of the CA 1982 does not always arise in choice between this latter section and the opening words of section 91 of the CA 1867. This question can also arise with sections 44 or 45 of the CA 1982. In the Senate Reform Reference, for instance, the Supreme Court of Canada unanimously concluded that, despite the seemingly clear wording of section 44 of the CA 1982 – which reads “Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons” – changes engaging the “interests of the provinces in the Senate as an institution forming an integral part of the federal system” have an impact on the “fundamental nature role of the Senate”. Thus they may only be made under the residual constitutional amendment procedure under section 38. Ultimately, this final case is striking evidence of the enormous power given to the courts to determine, ad hoc, a very fundamental question of positive Canadian law, consequence, we submit, of the poor drafting and “architecture” of the CA 1982. Our hope is that the doctrinal approach we propose might help remedy some of the resulting problems.

Suggested Citation: Maxime St-Hilaire, Patrick F. Baud and Éléna S. Drouin, 150 Years On: What is the Constitution of Canada?–Part 3 of 3–A Doctrinal Approach to the Problem of Identification, Int’l J. Const. L. Blog, Sept. 14, 2017, at: http://www.iconnectblog.com/2017/09/150-years-on-what-is-the-constitution-of-canada-part-3-of-3-identifying-the-constitution

Maxime St-Hilaire is an assistant professor of law at the Université de Sherbrooke. He wishes to thank the students in his constitutional law courses contributing to the development of the arguments made in this series of posts, as well as Laurence Bich-Carrière for helping to develop and present many of these arguments in more fragmentary form in “La constitution juridique et politique du Canada : notions, sources et principes”, in JurisClasseur Québec, Droit constitutionnel, Droit public collection (Montreal: LexisNexis, original ed.: 2011; latest update: 2015), booklet 1.

Patrick F. Baud is an honours law student at McGill University. He serves as senior policy advisor to Ontario’s Financial Accountability Officer and research assistant to the Parliamentary Budget Officer. These posts do not necessarily reflect the views of either of his employers.

Éléna S. Drouin is a law student at McGill University. She currently works as an Editor for the McGill Law Journal and as a research assistant for the Peter MacKell Chair in Federalism. These posts do not necessarily reflect the views of either of her employers