Amendment: Who Decides?
The challenges of changing the Constitution
Two questions drove constitutional reform: What to put into the Constitution, and how the Constitution could be changed in the future — the ‘amending formula.’
Each of the provinces and the federal government wanted to ensure that they would have a say in any future changes. Many feared that beneficial changes could be blocked by petty politics. For some Canadians, questions about the amending formula (Should all provinces need to agree? Only some of them? If so, how many and which ones?) were less exciting or controversial than discussions about a charter of rights or debates about inclusion of Indigenous Peoples.
Queen Elizabeth reads the Throne Speech, 1977
Why the Formula Matters
Why the Formula Matters
The very point of patriation was to allow Canadians to make changes to their Constitution without permission of the British Parliament.
The difficulty was in determining who could make the changes and how. The federal government and the provinces could not come to an agreement that satisfied them all.
Questions about who should approve future changes to the Constitution - the provinces, the federal government, the regions, or the general public through a referendum - were the subject of heated debate.
Québec tended to believe that its minority-language status and history as a “founding people” should allow it to have a veto. Ontario, because of its size and its historic importance, felt that it should have a veto. Other provinces held that if Québec and Ontario could have that power, so should they.
Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes. leaders, mostly excluded from the negotiations, argued that Canada actually was founded on relationships between their nations and settlers. Shouldn’t Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes. Peoples have some control over changes that could put their rights in peril? They argued for recognition of their status as founding peoples of Canada with languages and cultures entirely distinct.
The debate simmered for decades.
“Are we going to just repeat our historical claims?” — Prime Minister Trudeau
René Lévesque greets Peter Lougheed, 1980
1964-1981
A Feast of Formulas
1964-1981
A Feast of Formulas
Over time, many amending formulas have been proposed. Here is a timeline that includes the most significant:
1964: Fultron-Favreau
In October 1964, Prime Minister Lester B. Pearson agreed with all premiers on the so-called Fulton-Favreau formula: unanimous provincial approval on matters affecting the rights and powers of provincial legislatures. But in January 1966, Québec Premier Jean Lesage backed out from the agreement, fearing that unanimity might mean any other province could veto Québec’s future demands.
1971: Victoria Charter
At the Victoria conference of June 1971, all first ministers agreed to a formula that relied on regional representation: an amendment to the Constitution could only be made with approval of the Parliament of Canada, the provinces of Ontario and Québec, two out of the four Atlantic provinces, and two out of the four western provinces. (Those western provinces had to represent at least 50 per cent of the population of the region.)
Québec Premier Robert Bourassa backed out of the agreement under pressure from his cabinet. British Columbia decided it didn’t want to be lumped in with the prairies, but to be considered the fifth region of Canada. And when Peter Lougheed was elected premier of Alberta a few months later, he argued that all provinces should be treated equally.
1980: Vancouver Consensus
At the ministerial meetings in Vancouver during the summer of 1980, Peter Lougheed presented an amending formula The rules for changing the Constitution. Most parts of the Constitution require the agreement of the Senate and House of Commons, and at least two-thirds of the provinces representing 50% of the population for an amendment. that required seven out of the 10 provinces agree on any constitutional change, and that these must represent at least 50 per cent of the population. This implied a veto for Québec and Ontario if they acted together, but an outright veto for no one. Changes affecting the monarchy, the composition of the Supreme Court, or the amending formula The rules for changing the Constitution. Most parts of the Constitution require the agreement of the Senate and House of Commons, and at least two-thirds of the provinces representing 50% of the population for an amendment. itself required unanimity. Provinces could choose to opt out of any amendment.
There would also be a three-year time limit to approve a constitutional amendment by Parliament and all provincial legislatures, starting from the day it was first approved in any one jurisdiction.
1980: Trudeau's Resolution
During the 1980-81 patriation The process of bringing the British North America Act, 1867 – the Constitution of Canada – under full domestic control, rather than having it remain as an act of the British Parliament. After decades of effort, patriation was completed with the 1982 passage of the Canada Act in Britain and the Constitution Act in Canada. It includes a means of amending the Constitution in Canada. The new Constitution was not endorsed by the government of Québec. negotiations, Pierre Trudeau proposed a version of the Victoria formula This amending formula model was proposed as part of the failed Victoria Charter constitutional package in 1971, and remained part of negotiations for the following decade. It required that constitutional changes be approved by the federal government and a majority of the provinces, including at least two in Western Canada and two in Atlantic Canada. It also granted vetoes to the two largest provinces, Ontario and Québec. – with the addition that amendments would also require the consent of any province that had ever had more than 25 per cent of the national population. (Without naming them, this meant Québec and Ontario.)
To Trudeau, this was a compromise between unanimity and dominance by the majority. He added that if all the governments could not agree on an amending formula within two years, he would bring the question (along with the Charter of Rights and Freedoms The Charter sets out the rights and freedoms that are officially guaranteed by the Canadian Constitution, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It is Part 1, sections 1-34 of the Constitution Act, 1982. ) to a national referendum A popular vote (whether civic, provincial, or national) on a proposal or question. The patriation of the Constitution became a more urgent matter after the 1980 Québec referendum on sovereignty. Pierre Trudeau and others proposed several different possible national referenda to resolve constitutional issues. .
Not even Trudeau’s provincial allies liked the idea of a referendum. They weren’t champions of direct democracy; they believed in federalism A system of government in which a country includes both a central government and a set of regional governments, which are not subservient to the central government but have their own separate powers. and the Canadian tradition of government-to-government negotiations.
April 1981: April Accord
The Gang of Eight The eight provincial premiers who opposed Pierre Trudeau’s plan for patriation of the Canadian Constitution in 1980-81, both politically and in court actions — that is, all of the provinces except for Ontario and New Brunswick. Nova Scotia and Saskatchewan were the last to join what was originally a “gang of six.” provinces opposing Trudeau’s resolution met in April 1981 and came up with the April Accord. The Accord supported the Vancouver amending formula The amending formula model, first proposed by Alberta in 1980, that was adapted and finally adopted as the primary constitutional amending formula in 1982. The formula treated provinces equally and had an opting-out clause. It requires that most constitutional changes be approved by the House of Commons and Senate, as well as the legislatures of two-thirds of the provinces, which must comprise at least 50 per cent of the population of Canada. of 1980. Québec’s assent here, giving up its guaranteed veto, was a huge act of solidarity.
However, René Lévesque negotiated a promise of financial compensation to go with the ability to opt out of amendments. He saw it as perfect for a step-by-step path to practical independence from Canada, and as an alternative to outright separation. And if that failed, it would give him more political leverage back home.
Trudeau at the 1981 Constitutional Conference
At the 1981
Patriation Conference
At the 1981
Patriation Conference
On the second day of the November 1981 Patriation Conference, Trudeau called Québec’s desire for an opt-out with compensation “incremental separatism”. He thought it would lead to an uneven patchwork of standards across the country. But late on the third day, he said he’d be willing to accept the Vancouver formula, if the provinces agreed to include a full charter – one that did not include a notwithstanding clause.
At the end of the third day as no agreement had been reached, officials from six provinces, including at times some of the premiers themselves, worked late into the night in Premier Blakeney’s hotel suite, on a proposal that was acceptable to most of the provinces and Ottawa The capital city of Canada, where the federal Parliament buildings, the House of Commons and the Senate are located. For this reason, “Ottawa” is sometimes used as a synonym for the federal government, as in a phrase such as, “Ottawa refused any further negotiations.” . They finalized a deal but without Québec’s approval. Trudeau accepted. The general amending formula The rules for changing the Constitution. Most parts of the Constitution require the agreement of the Senate and House of Commons, and at least two-thirds of the provinces representing 50% of the population for an amendment. would require seven out of 10 provinces representing 50 per cent of the population.
The agreement included a provincial opt-out provision, but it did not include financial compensation. Lévesque refused to sign.
Pierre Trudeau and Jean Chretien, 1981 Constitutional conference
1981-1982
After the Conference
1981-1982
After the Conference
In the following weeks, the federal government added some financial compensation to the deal – it remains in the Constitution today. But it was no longer enough to win Québec’s agreement.
Shortly after, on December 2nd, Lévesque wrote to Trudeau arguing that, historically, Québec had the power to block proposed
amending formulas
The rules for changing the Constitution. Most parts of the Constitution require the agreement of the Senate and House of Commons, and at least two-thirds of the provinces representing 50% of the population for an amendment.
, and this power continued. Lévesque said he would ask the Supreme Court of Canada to recognize Québec’s historic veto. Trudeau reminded Lévesque that he had agreed to no veto power in the April Accord.
On December 6, 1982, the Supreme Court ruled that Québec had never had a veto, even by convention.
Prime Minister Brian Mulroney and the Premiers, Meech Lake, 1987
1982 - Today
The Formula's Fate
1982 - Today
The Formula's Fate
The amending formula agreed to in 1981 made it possible to bring the Canadian Constitution home. Canada had designed a formula that would allow it to make changes to its own Constitution. But the formula has proven difficult to use.
In 1987, Prime Minister Brian Mulroney, along with all the premiers, designed a series of amendments to the Constitution known as the Meech Lake Accord, to heal the wound left by patriation in Québec. The Accord, however, proved unpopular because it was made behind closed doors, without consultation. Critics characterized it as a deal made by 11 white men in suits.
As the amending formula’s three-year deadline approached, several provinces had not yet approved it. Elijah Harper, an Indigenous MLA in the Manitoba legislature, prevented the Accord’s passage by blocking a procedural motion.
Harper argued that the Meech Lake Accord A set of proposed changes to the Constitution agreed upon by the first ministers at a meeting called by Prime Minister Brian Mulroney and held at Meech Lake in Gatineau, Québec, in April, 1987. It was an effort to gain the endorsement of Québec to the Constitution that was lacking earlier in the decade. Measures included naming Québec a “distinct society” in the Constitution, and altering the amending formula to give Québec more power with respect to any proposed changes. Pierre Trudeau came out in opposition, as did Indigenous groups and others who were angry about a lack of consultation. Ultimately, it was not approved by all provinces in time to meet the agreed deadline - it expired on June 23, 1990, which was perceived as another betrayal by many in Québec. continued a history where Indigenous Peoples were excluded from discussions of constitutional reform. Following Harper’s action, Newfoundland Premier Clyde Wells declined to bring the Accord to a vote in his legislature. This effectively ended the possibility of passage for the Meech Lake Accord A set of proposed changes to the Constitution agreed upon by the first ministers at a meeting called by Prime Minister Brian Mulroney and held at Meech Lake in Gatineau, Québec, in April, 1987. It was an effort to gain the endorsement of Québec to the Constitution that was lacking earlier in the decade. Measures included naming Québec a “distinct society” in the Constitution, and altering the amending formula to give Québec more power with respect to any proposed changes. Pierre Trudeau came out in opposition, as did Indigenous groups and others who were angry about a lack of consultation. Ultimately, it was not approved by all provinces in time to meet the agreed deadline - it expired on June 23, 1990, which was perceived as another betrayal by many in Québec. .
The Charlottetown Accord of 1992 was the second attempt by Prime Minister Brian Mulroney to amend the Constitution and have Québec sign the agreement. The process for writing the Accord was more consultative: it included the Territories, Indigenous Peoples, and Canadian citizens.
Charlottetown An attempt, in 1992, to revise the Constitution to gain the endorsement of Québec, after the death of the Meech Lake Accord in 1990. Along with several of the provisions of Meech, it had a “Canada Clause” setting out a general view of the nation (including Québec as a “distinct society”), as well as a Social Charter, meant to articulate collective principles and goals not included in the Charter of Rights and Freedoms (on health care, education, labour rights and other matters), and a recognition of the Indigenous right to self-government. It was brought to public referendum — one in Québec and another in the rest of Canada — on October 26, 1992, and was defeated. would have addressed some Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes. self-government and Parliamentary representation issues. It was eventually put to a referendum A popular vote (whether civic, provincial, or national) on a proposal or question. The patriation of the Constitution became a more urgent matter after the 1980 Québec referendum on sovereignty. Pierre Trudeau and others proposed several different possible national referenda to resolve constitutional issues. (in which it was defeated), raising questions about the amendment process.
Since 1982, there have been bilateral and unilateral amendments to the Constitution but no amendment that has successfully used the 7/50 amending formula.
Did this use of a national referendum A popular vote (whether civic, provincial, or national) on a proposal or question. The patriation of the Constitution became a more urgent matter after the 1980 Québec referendum on sovereignty. Pierre Trudeau and others proposed several different possible national referenda to resolve constitutional issues. in 1992 make it impossible to have national constitutional change without meaningful input from all Canadians? Would Canadians in the future allow anything other than a narrow constitutional change to pass without public involvement and a vote? Can constitutional amendments still practically occur through high-level negotiations between provincial and federal governments alone?
Amendment: Who Decides?
Two questions drove constitutional reform: What to put into the Constitution, and how the Constitution could be changed in the future — the ‘amending formula.’
The Challenges of Changing the Constitution
Why the Formula Matters
A Feast of Formulas
At the Patriation Conference
After the Conference
The Formula's Fate
