Constitutional Struggle: Constitutional Reform
Constitutional Change (pre-1982)
Original BNA Act does not contain an amending formula.
As any Act of the UK Parliament, it can be changed like any legislative doctrine.
Between 1867 and 1982, BNA Act was changed 22 times.
Amending formula was added in 1982 Constitution.
British Cabinet: Admission of New Provinces
BNA Act envisions the territorial expansion of the New Dominion.
S. 146 empower the British Cabinet the power to approve the admission of British
Approves the entry of Rupert’s Land and NWT (1870), BC (1971) and PEI (1873).
Federal Parliament: Creation of “new” provinces
Pursuant to federal Parliament’s residual powers, the creation of new provinces falls to
Changes to the Senate and House of Commons
S. 52 of the BNA Act grants Parliament the power to increase the size of the House of
Commons “provided that the proportionate representation is not thereby disturbed.”
Federal powers limited to “house-keeping issues.”
Require Westminster support to alter the arrangements made in 1867.
Imperial Conference 1926 (Balfour Declaration) moves towards greater independence.
Feds/provincial government seek to find a domestic amending formula between 1926-1935.
No conclusion, but three general observations are made:
Affecting the feds alone – enacted through normal legislation.
Affecting the provinces alone – enacted through normal legislation.
Affecting both provinces/feds – requires joint action by both parties.
In 1949, the feds ask the UK government for power to amend the BNA Act in matters relating to
S. 92 (1) gives provinces the power to change its constitution.
Many altered the upper appointed Senate at the time of Confederation.
Or, changed the manner of legislature rules.
Or extended the life of Parliament for five years (1943 in Ontario).
Quebec has/had a Senate?
Early Constitutional Conventions
Because Canada exists as it borrowed most of its rules from the UK, conventions matter.
Most ideals are based on convention.
UK’s Parliament could only amend the BNA Act at the request of Canadian
representatives. Quest for a domesti