Amendments to the Constitution of Canada

There are some parts of the constitution that can be modified only with the unanimous consent of all the provinces plus the two Houses of Parliament. This formula is contained in section 41 of the Constitution Act, 1982, and is known as the "unanimity formula".[7] It is reserved for the following matters:

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

(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time the Constitution Act, 1982, came 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) changing the amendment procedure itself.

For some constitutional provisions, amendments can be passed only if identical resolutions are adopted by the House of Commons, the Senate and two-thirds or more of the provincial legislative assemblies (i.e. at least seven) representing at least 50 per cent of the national population. This formula, which is outlined in section 38 of the Constitution Act, 1982, is officially referred to as the "general amendment procedure" and is known colloquially as the "7/50 formula".[8][7] It is the amendment formula that applies when the amendment does not fall into any other category.[6]

Once the procedure for the adoption of the amendment is followed successfully, the amendment is formalized as a proclamation of the Governor General in Council. Officially, therefore, the constitution is amended by Proclamation, and the issue of the Proclamation requires prior approval by resolutions of the House of Commons, the Senate, and the necessary number of provincial legislative assemblies.

The following matters are explicitly reserved to the "7/50 formula", by virtue of s. 42:

(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) the establishment of new provinces.

According to s. 43, any amendment applying to one or more, but not all, provinces must be "authorized by resolution of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies."[7]

If a constitutional amendment affects only one province, only the assent of the two houses of Parliament and of that province's legislative assembly is required. Seven of the eleven amendments passed so far have been of this nature, four being passed by and for Newfoundland and Labrador, one for New Brunswick, one for Prince Edward Island, and one for Quebec. This formula is contained in section 43 of the Constitution Act, 1982.

According to s. 44, constitutional provisions concerning federal institutions (executive government of Canada, Senate, and House of Commons) can be amended unilaterally by the Parliament of Canada if the provisions are not those explicitly reserved for unanimity or 7/50 formula.[7][6] For example, in 2022, the Canadian government used this amendment method to modify the House of Commons seat allocation formula.[9][10]

According to s. 45, each province has the exclusive power to modify its own constitution, if the changes do not concern matters outlined in s. 41.[6] This section has been the subject of much confusion and debate, since some provincial constitutions are embedded in the same documents that form the Constitution of Canada.[11][12]

No specific mention is made in the procedure for amendments affecting what falls within the federal/provincial distribution of powers. Therefore, they can be dealt with generally under s. 38, or with respect to specific provinces under s. 43. However, a s. 38 amendment in that regard will not apply to a province that has passed a resolution of dissent from it, and s. 40 states that a s. 38 amendment that transfers provincial jurisdiction over an education or cultural matter to Parliament must be accompanied by reasonable compensation by Canada to the provinces.

Attempts to enact major amendments:

• The Meech Lake Accord.
• The Charlottetown Accord.

There was debate about whether the Succession to the Throne Act, 2013, a federal statute, was a constitutional amendment that should have been passed under the constitutional amending formula requiring unanimous provincial consent. The Canadian Parliament passed the act to give its assent to the Succession to the Crown Bill (then still under debate in the Parliament of the United Kingdom), which aimed to remove male preference in the line of succession to Britain's throne, consistent with the Perth Agreement of the Commonwealth realms. Two professors of law from the Université Laval, Geneviève Motard and Patrick Taillon, began a lawsuit in the Quebec courts, arguing that the amendment should have been enacted using the unanimous amending formula under section 41. The Superior Court of Quebec and the Quebec Court of Appeal both rejected the claim, holding that according to the Statute of Westminster, 1931, a constitutional amendment is not required to match Canada's rules of succession to those of the United Kingdom.[16][17] The Supreme Court of Canada denied leave to appeal.[18]

Another disputed case is Quebec's amendments to its provincial constitution framed as amendments to the Constitution of Canada. In 2021, an act of the Quebec parliament titled An Act respecting French, the official and common language of Quebec, which was largely amendments to the Charter of the French Language. The act purports to add sections 90Q.1 and 90Q.2 to the Constitution Act, 1867, which provide that Quebecers form a nation and that French is the only official language of Quebec. The act does not state which amending formula is used, but, since the House of Commons did not authorize the bill, it would only have effect if it were an amendment to the constitution of Quebec made by the section 45 amending process. Constitutional scholars are divided on the validity of an amendment to a provincial constitution framed as an addition to part of the Constitution of Canada.[19][20]

Similarly, legislation passed by the parliament of Quebec in 2022 (Bill 4) and by the parliament of Saskatchewan in 2023 (Bill 88), respectively, purport to add section 128Q.1 and section 90S.1 to the Constitution Act, 1867. Section 128Q.1 exempts members of Quebec's legislative assembly from the oath required by section 128 and section 90S.1 declares, among other things, that Saskatchewan has autonomy with respect to all matters falling under its exclusive jurisdiction. Constitutional scholars are divided on the validity of these enactments for similar reasons to the disagreement concerning the 2021 act.[27]

An official at the Department of Justice, in June 2022, stated to Le Devoir that the additions to the constitution ostensibly made by the Quebec Legislature,[28] through its Act respecting French, the official and common language of Quebec, would be "reproduced in the codification of the constitutional laws [...] in the next update".[29] However, none of these additional sections have yet been added to the text of the Constitution Act, 1867, by the federal government. The last update was made on 1 January 2021.[30]