POLI 222 Lecture 7: Constitutional Amendment

6 views10 pages
18:05
Constitutional Amendment:
1867 BNA act amendable by British parliament:
-No formal de jure domestic formula
-Ruled by convention(UK will amend BNA upon formal resolution of the HofC
and Senate)
-192701980s: Canadians can’t decide on a formal rule
1981: supreme court patriation reference(red light Green light)
1982: patriation
Part V of the constitution act, 1982:
-s.38: General amendment formula(7/50 rule)
-s.41: unainimity
-s.43: one or more but not all
s. 44: parliament alone
From part II: under s.35.1 aboriginal peoples to be consulted for
constitutional amendments pertaining.
Looking at the rules, to change the rules… you have a better grasp of how
the things work
Tells us who are the real parties to the covenant that is the confederation
and what can we deduce from the rules
Baseline: acanda as a dominion created through an imperial statue,
amended by strictly legislative rules by the imperial parliament. Legally
speaking prior to 1982, it was an act of parliament chanhgeable according to
rules of the british parliament.
Not to say that the legal rules exhausted the way that the BNA was
amended between 1867 to it’s transformation into CA 1982.
Political conventions- rules that govern our behavior, and restrict the legal
use of power according to set of rules not be able to be tried in court.
Change BNA act- get rid of a province, legally speaking they had the power
to do that- but it wasn’t done, it would have been a massive constitutional
crisis- political rules that restrain the use of political power- political
conventions for the use of british power was that they would act only on a
resolution of the house of commons and the senate(a procedure and
convention)- UK parliament and Canadian parliament understood it as the
rules of the game
We did not have a domestic amending formula- what were the political rules
that would allow the federal parliament to send a resolution to UK
parliament. Does Quebec get a veto was at the heart of it?
Through a successive history, Canada cannot decide on a domestic
amendment formula-fundamental disagreement on if quebec gets a veto
when others do not- is it a compact of provinces or nations. –testament to
the degree of the fundamental understanding of this place
find more resources at oneclass.com
find more resources at oneclass.com
Unlock document

This preview shows pages 1-3 of the document.
Unlock all 10 pages and 3 million more documents.

Already have an account? Log in
1982 patriation: about trudeau government making a resolution by normal
established procedure to UK government to amend the BNA act in this way.
Question to supreme court- can trudeau make this resolution without the
prior and express approval of the provinces- unilateral repatriation
The patriation reference- “the red light green light decision”- in law there
was no legal obstacle(green light) for the trudeau government to make a
resolution to the UK government without the provinces on side. The federal
government on law could act unilaterally to make a resolution to the UK
government to then legally amend the BNA act.
Red light part- supreme court saying the convetions which are not legally
enforceable, but politically not legally- the trudeau government needs a
substantial majority of provinces on board. Not saying quebec has to be part
of it, or any other qualifications but by political convention, they needed
substiantial provincial consent
He went back to negotiate, what they negotiated did not meet with the
political consent of provinces(rene levesque) and yet he went ahead, and
made a resolution in 1982 and it was accepted by the UK parliament, they
passed the Canada act and CA 1982 passed.
We now have a legal amending formula that quebec did not politically agree
to, but they are legally bound to it because they are part of the Canadian
constitution.
Domestic amending formula: no longer resides w/british parliament, to
replace the previous rules we have amending formulas set out in part 5 of
CA 1982.
Default rule-general amendment formula(7/50-colocially called): it is met
when federal parliament and 2/3 of the provinces w/50% of population sign
on to a proposed constitutional amendment. 2/3 or more is 7 out of 10 with
50% of the population. In terms of changing the text of the constitution, you
need this(s.38)
There is a number of things that are so critical to the constitution that the
standard for change is higher- you need unanimity(s.41): this requires the
consent of 11 gov.(federal+all provinces-even PEI)-critical to meet the
unanimity provision. Subject matters: office of the queen, governor general,
lieutenant governor, any move from constitutional monarchy to anything
else like republic requires unanimity.
One or more but not all- effects one or more provinces but not all, requires
the approval of the federal government and those provincial governors that
are affected(s.43)- denominational school requirements of Newfoundland
example.
S. 44- parliament can do some things alone: fuzzy, and constrained since
the senate reform reference of last year.
You need provinces on side.
find more resources at oneclass.com
find more resources at oneclass.com
Unlock document

This preview shows pages 1-3 of the document.
Unlock all 10 pages and 3 million more documents.

Already have an account? Log in
General rules are a mish-mash between visions of it as a compact of nations
or a compact of provinces.
7/50 rule(s.38)(2006 consensus):
Power is demographic- how much population they have
The fact that you need 7, means you need cooperation of less populous
provinces even if you are the most populous province.
Either ON or QC have be part of the provincial coalition. Meaning QC does
not have a general veto, but QC can only be thwarted if the opposing camp
includes ON.
1)QC + ON + any 5 others
2) QC + AB + BC + Any 4 others
3)ON + BC + any other 5
4)ON + AB + either SK, NS, NB +any 4 others
quebec is still an important player in establishing a coalition but they are not
necessary. The degree to which provinces wanna actually change the
constitution, you probably have to deal with quebec but if there is a strong
enough consensus to change without quebec it can be done.
1996 Act respecting constitutionam amendments:
5 region rule:
-QC
-ON
-BC
-2 prairie w/50%
-2 atlantic w/50%
1996 sovereignty referendum in quebec- basic question and answer was
fuzzy but the basic feeling was that you needed a 50% vote of Quebecers in
favor of separating
came in the slimmest of margins for the “no”- many were sad
a lot of people were nervos- where do we go from here, politically post
1995- we know were we are legally but where do we go politically and how
does the federal government respond.
They responded in a way that doesn’t actually change the constitution but
makes it impossible so long as the legislation remains in effect(chretien),
quebec cannot be withhold. They have a veto. But not just quebec.
The federal government passed legislation- “the act respecting constitutional
amendments”- changeable by normal parliamentary procedure, normal
legislation by an act of parliament. Not initself a constitutional document,
but in it.. the federal government says it will only give it’s consent to
constitutional amendments where section 38 is at issue, under 7/50 rule-
the federal will only say yes if the following condition is reached.
find more resources at oneclass.com
find more resources at oneclass.com
Unlock document

This preview shows pages 1-3 of the document.
Unlock all 10 pages and 3 million more documents.

Already have an account? Log in

Get access

Grade+
$10 USD/m
Billed $120 USD annually
Homework Help
Class Notes
Textbook Notes
40 Verified Answers
Study Guides
1 Booster Class
Class+
$8 USD/m
Billed $96 USD annually
Homework Help
Class Notes
Textbook Notes
30 Verified Answers
Study Guides
1 Booster Class