Canadian Constitutional Amending Procedures: 1867-1982

Abstract

During the years 1980 through 1982, Canada has been through a period of major constitutional change, the nature of which, at this late date, must have puzzled outside observers. Indeed, Canadians themselves were somewhat confused, though they were sure enough of two rock bottom historical facts: that Canada has been a self-governing federal country since 1867, and that Canada became a full-fledged member of the international community of independent states in the years between the end of World War I and the end of World War II. The first development was by virtue of the British North America Act passed by the British Parliament in 1867,1 which has been the core of Canada's domestic constitution ever since. The second development, Canada's independent international status, came about mainly by virtue of changes in the law of the British Commonwealth and public international law, changes that developed primarily in the period 1919-1945, relying heavily on custom, usage and convention as sources of law.2 However, something had been omitted from the B.N.A. Act in 1867 which gradually became a source of embarrassment as the decades passed, especially in the twentieth century. The Act of 1867 said nothing at all about a domestic amending process for the changing of basic elements of their federal union by Canadians in Canada. This refers to the fundamental character of the main instituations of government-legislative, executive and judicial-at both the provincial and the federal levels, and to their respective primary powers and responsibilities. With this omission, under the B.N.A. Act in 1867, Canada was self-governing and federal for domestic purposes, but was still very much a colony of Great Britain in the realm of international relations and relations within the British Empire. At this date the paramountcy of the British Parliament over the whole British Empire was unquestioned, if that Parliament chose to be specific in enacting a statute expressly or by necessary