The Amending Power of the Canadian Parliament

Abstract

The enactment by the Imperial Parliament at Westminster of the British North America (No. 2) Act, 1949, raises again the complex and difficult problem of the nature of the amending process in the eldest of the British dominions. From the beginning this process has been surrounded with a certain mysterious imprecision, deriving from the fact that Canada's basic constitutional statute—the British North America Act, 1867—contained no provision for its own amendment. In other words, until 1949 there was no clause in the constitution setting out a procedure whereby its own provisions might be legally changed. Hence through the long years all amendments have had to be made by the Parliament at Westminster which enacted the original statute—a necessity that has produced all sorts of difficult problems for students of constitutional law in both Canada and the United Kingdom. It has long been settled practice that the Imperial Parliament will enact whatever amendments are requested by the appropriate authorities in Canada, but a question remains as to which are the appropriate authorities. It seems now to be settled, after considerable controversy, that the executive government, acting alone, may not make such a request; practice requires a joint address by the two houses of Parliament. But is it necessary for the Dominion authorities to consult with the provinces before going to London with this request or may the Dominion do this by itself? If consultation is conceived to be necessary, must all the provinces be consulted? And if so, is it necessary that they all consent to the amendment before it is requested? If all need not consent, what part is necessary? These questions and other similar ones have plagued Canadians for years, and there is not yet any accepted solution either in precedent or in law.