By Maxime St-Hilaire, Patrick F. Baud, and Éléna S. Drouin
In Canadian constitutional law, it is not tautological to say, as we did in our previous post, that, as provided for by subsection 52(3) of the Constitution Act, 1982 (CA 1982), the supreme law of Canada is composed of all provisions that may be only amended in accordance with it. This is precisely what makes the difference between (formally) ordinary and (formally) constitutional “written” laws—an ordinary law cannot definitively determine how it is to be amended. While it is true that we do not know the exact substantive extent of the supreme law of Canada, we do know that the constituency competency (which again, must not be mistaken for the idea of “constituent power”), which was transferred to Canada in 1982 through an amendment “formula”, is meant to be exhaustive, or as Richard Albert puts it, a “complete code”. This is what the “patriation of the constitution”—effected by the Canada Act 1982 and its Schedule B, the CA 1982—was chiefly about. This means, as the Supreme Court explained in its 1982 opinion rejecting Quebec’s claim that it possessed a conventional veto over constitutional amendments, the “new procedure for amending the Constitution of Canada…entirely replaces the old one in its legal as well as in its conventional aspects”. It is through subsection 52(3), which we propose to use as the criterion for defining the supreme law of Canada that allows us to conceive of the non-recognition by, or “irrelevance” for, Canadian law, of the hypothetical repeal by the Parliamentary of the United Kingdom of section 2 of the Canada Act 1982, which reads: “[n]o Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law”.
Any provision elsewhere in the supreme law related to constitutional amendment procedure is implied to have been repealed by Part V of the CA 1982. We are aware of five such provisions: section 3 of the Constitution Act, 1871, which allowed the federal parliament to alter a province’s boundaries only with the authorization of the affected province’s legislature; and the provisions in each of the agreements, made between the Federal executive and those of Alberta, British Columbia, Manitoba, and Saskatchewan; concerning public lands and natural resources of these four provinces; and constitutionalized by the British/imperial Constitution Act, 1930, which reproduced them in schedules, that allow those agreements to be “varied by agreement confirmed by concurrent statutes of the Parliament of Canada and the Legislature of the Province”.
The supreme law of Canada: a new, procedural definition
We can therefore define the content of the supreme law of Canada as being composed of all the “written” law, that is, the legal provisions, whose amendment, repeal or enactment now (and since April 17, 1982) fall under the constituent competency that is established by the true and variable constitutional amendment procedure established by the CA 1982. As we said in our previous post, this procedure is mostly provided for in Part V of the CA 1982, but includes section 35.1, which is in Part II of the CA 1982, and excludes sections 44 and 45, which are in Part V. This said, this post is not the best venue to detail the constitutional amendment procedure and the ongoing complex (and complicated) jurisprudential and academic debates it generates.
The Canadian constitutional amendment procedure: a new, functional identification
To sum up, we would say that in Canada, the formal and real constitutional amendment procedure, and thus the formal and real constituent competency, breaks down into three different procedures. Two of them apply in specific instances, while the other is intended to be the “normal”, that is, default or residual procedure, which (as we said and will get back to in the next post) creates a loophole. This gives the courts a considerable leeway to determine whether certain provisions come under one or more of the federally distributed, regular legislative competencies or the formal constituent competency.
An alternative (and probably better) way to describe the constituent competency is to say that there is only one procedure, in which the Governor General proclaims the amendment under the Great Seal of Canada with the authorization of the House of Commons, possibly the Senate (whose opposition can be overridden), and a variable number of provincial legislative assemblies.
These are the key actors whose coordinated action forms Canada’s constituent competency. The authorizing actors (that is, all except the Governor General) are equally vested with the right to formally initiate the constitutional amendment procedure under section 47 of the CA 1982.
Part V and section 35.1 of the CA 1982 refer to other actors, but those actors do not, in our opinion, play a role in either authorizing or proclaiming amendments. For example, Section 48 of the CA 1982 refers to the Queen’s Privy Council for Canada, a body established by virtue of section 11 of the CA 1867, but only to bind it to “advise the Governor General to issue a proclamation…forthwith on the adoption of the resolutions required for an amendment”. Assuming for the sake of argument that it is valid, section 35.1 of the CA 1982 unclearly, weakly, and probably unjusticiably requires the convening of a “constitutional conference” before the initiation of the procedure for an amendment of specified provisions that directly relate to the Aboriginal peoples of Canada. Section 49 of the CA 1982, now obsolete, provides for a mandatory constitutional conference “to review” the provisions of Part V within 15 years of its coming into force. Surprisingly, both sections 35.1 and 49 refer to actors who have historically had a political or conventional existence, but not a legal one: the provincial first ministers and the “Prime Minister of Canada”. Finally, the Supreme Court’s 1998 opinion on the domestic and international law surrounding the possible secession of Quebec unclearly (and problematically) made the federal and provincial executives somehow legally bound actors in Canada’s constituent competency, using following terms:
“The Constitution Act, 1982 gives expression to this [democratic] principle, by conferring a right to initiate constitutional change on each participant in Confederation. In our view, the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change in other provinces. This duty is inherent in the democratic principle which is a fundamental predicate of our system of government.”
In summary, the threefold real and formal procedure to amend, repeal or enact provisions of the supreme law of Canada consists in the issuance of a proclamation by the Governor General, so authorized by at least the lower house of the federal parliament and a variable number of provincial legislative assemblies. In the next post, we will suggest a way to map out this procedure.
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.
This post was originally published on I-CONnect on September 13, 2017: Maxime St-Hilaire, Patrick F. Baud and Éléna S. Drouin, 150 Years On: What is the Constitution of Canada?–Part 2 of 3–Amending the Supreme Law, Int’l J. Const. L. Blog, Sept. 13, 2017, at: http://www.iconnectblog.com/2017/09/150-years-on-what-is-the-constitution-of-canada-part-2-of-3-amending-the-supreme-law