Canada’s formal constitutional amendment process is clearly stated in the Constitution Act of 1982 and leaves little room for informal amendments. The comprehensive process also reflects Canada’s history and practice of federalism.
The amendment process summarized above reflects the process by which the Canadian constitution was adopted. As a colony of Great Britain, Canada’s independence was gradual and peaceful. Canada remains under the political jurisdiction of the British monarch constitutionally, although this relationship is largely symbolic. Leaving the final authority to the governor general, the queen’s reagent in Canada affirms this relationship. Canada’s federal history and nature is also present in the formal amendment process. The adoption of Canada’s constitution was largely consensual, as is the amendment process. Three-quarters of the provincial legislatures are needed to ratify a constitutional amendment, giving provinces with little population disproportionate power in the ratification process. If Quebec and Ontario alone supported an amendment, they would satisfy the population majority requirement alone, however, they must persuade five other provinces to support said amendment in order to see it ratified. (2)
Before 1982, the constitutional amendment process was largely informal. Amendments would be approved by the British Parliament per request of Canadian Parliament with little debate. (3) However, the process adopted in the Constitution Act of 1982 is comprehensive and rigid, leaving little room for variance in interpretation. The role of the Supreme Court in Canada regarding Constitutional affairs is debated and murky, although it often reviews the constitutional validity of Canadian laws. The Supreme Court is mentioned in the section V of the Constitution Act of 1982, leaving some to believe that the Supreme Court Act of 1875 is constitutional legislation. (3) However, the act is not included in section 52, which lists the documents considered to be “constitutional.” (3) This hinters the ability of the Supreme Court to informally amend the constitution, as it’s very existence is not constitutionally guaranteed. It is also important to note that the Canadian Constitution is quite long and comprehensive, leaving less opportunity for judicial review.
Sources:
- Canadian Constitution: https://www.constituteproject.org/constitution/Canada_2011#1022
- Wikipedia:
The Canadian constitution, especially when compared with other nation’s constitutions(1), is quite hard to amend and different procedures are to be followed dependent on what is being amended. (2)
ReplyDeleteFor a federal amendment to the Canadian constitution, amendments must be proposed by Parliament and then require being passed by both the House of Commons and the Senate. After the Federal legislature has passed it, it moves down to the providential legislatures where two third of all the provinces must pass it and all the provinces that assent must have 50% or more of the total population of Canada in accordance with the last census.(2)
If the federal amendment only affects a province or certain provinces that all those provinces must pass the amendment with a simple majority before it affects them. (2&3)
A province can pass an amendment to the provinces constitution by majority voting as long as it follows federal laws and is within the scope of the province’s powers. (2&3)
After the amendment has pass all the necessary legislation for the amendment the amendment goes to the Governor General who issues a proclamation making it law. (2&3)
The constitution was passed using this formula but was not passed in Quebec meaning that Quebec is not bound by the same constitutional processes and laws as the other provinces. There have been at least two attempts to reconcile Quebec under the Meech Lake Accord and the Charlotte Town Accord both of which failed to win the majority of votes in both provinces and overall to pass. (4&5)
Judicial review in Canada is severely limited. Judicial review can be applied to cases where the Parliament oversteps its bounds of power as listed in the Constitution and this was in place even before the Constitution Act of 1982. However, before 1982 that was the only form of judicial review Canada had in place. However in 1982, the Charter of Rights and Freedoms were passed allowing judicial review on the rights and freedoms listed in the document such as religion, expression, press, search and seizure, language, education and aboriginal rights. The Supreme Court can now strike down any law that infringes on those rights as well as any law that oversteps the scope of Parliament. (6)
1. http://en.wikipedia.org/wiki/Judicial_review_in_Canada
2. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4131&context=lcp
3. http://www.sfu.ca/~aheard/partv.html
4. http://www.rcinet.ca/politiquecanadienne/?p=97&lang=en
5. http://nesara.insights2.org/Constitution.html
6. http://www.pch.gc.ca/eng/1356631760121/1356631904950
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ReplyDeleteJesse Moehlman
ReplyDeleteStephen mentioned the process in 1982 that led to major constitutional reforms, focusing on the aspect of the amendment process, which requires supermajorities and ratification by the provinces. However, as discussed in lecture and in the readings for this week, a strong judiciary is also associated with constitutions that include more lengthy and cumbersome amendment processes. Lijphart points out that the drafting of the Charter of Rights and Freedoms in 1982 led to a stronger practice of Judicial Review in Canada (1). Lijphart includes this within his discussion of rigid versus flexible constitutions; Canada is ranked as having one of the most rigid constrictions, meaning it is much more difficult to change, and contains a very strong system of judicial review (2). Next I will analyze how Canada’s inclusion of judicial review impacts informal amendments, as opposed to the formal procedure outlined by Stephen.
Whereas formal amendments are outlined in many constitutions, including Canada’s, informal amendments are not clearly delineated. As discussed in lecture, the practice of judicial review, or evaluating the constitutionality of a particular law of political practice amongst actors, leaves open the possibility for courts to reinterpret the meanings of particular articles or amendments in constitutions. For example, as discussed in the previous paragraph, the Charter of Rights and Freedoms in 1982 is associated with a more “activist” jurisprudence on the part of the Supreme Court of Canada (1). As T. A. Sussel and M. E. Manley-Casimir point out in “The Supreme Court of Canada as a "National School Board": The Charter and Educational Change,” the Charter gave the Court a greater role in protecting civil liberties and civil rights (3). The authors later on point to the role that the Courts played in invalidating legislation that limited the eligibility of students to attend English language schools if their parents received their primary education in Quebec (3). This is an example of an informal amendment established by the Supreme Court of Canada through judicial review, in which the Court used constitutional principles to make a judgment in the absence of a clear article or amendment that pointed to a clear decision on the issue (3).
References:
1. Lijphart Chapter 12, page 216
2. Lijphart, Chapter 12, charts on pages 208 and 215
3. T. A. Sussel and M. E. Manley-Casimir, “The Supreme Court of Canada as a "National School Board": The Charter and Educational Change,” Canadian Society for the Study of Education, pp. 315-320, 1986, http://www.jstor.org.proxy.lib.umich.edu/stable/pdfplus/1494435.pdf?acceptTC=true&jpdConfirm=true
Elmer van der Vlugt
ReplyDeleteIn reaction to Stephen’s post, I would argue that the amendment process is relatively hard, as the leader post and previous comments have strongly argued in favour of. Constitutional change, on the other hand, may not necessarily be all that hard. First of all, the distinction between the two should be made clear. As Dixon explains it, the difference is that constitutional amendments are seen as legal, textual changes in a written constitution, whereas constitutional change is a broader term that encompasses any change to a constitution’s substantive meaning (1). Examples of constitutional change that do not use amendments are judicial review, changes in traditions or conventions and, as Dixon calls it, “workaround[s]” of some sort by government, by which it seems some sort of regular legislation is hinted at (1). These example also resonate with Besso’s idea of informal amendments to the US constitution, which are done by the executive, legislative or judicial branch (2).
The relative difficulty of amending the constitution is affirmed by Dixon, who views recent failures to amend the Canadian constitution as an example of the idea that the more steps it takes to amend a constitution, the less likely it becomes an amendment is actually passed (1). This, then, might form an incentive to look at other ways to change the constitution’s effect, something Besso argues for in the American case (2). One big way to avoid going through the Canadian process of constitutional amendment is to create a law under the Notwithstanding Clause of the 1982 Constitution Act, which allows for an overturning of a select amount of civil rights. The overturning has to be recommitted to periodically, five years at the longest (1, 3, 4).
In conclusion, it seems to me that there is quite a bit to say for the idea that Canada’s difficult constitutional amendment process might incentivise actors in the political life to search for other ways to establish constitutional change, with the Notwithstanding Clause as a central, idiosyncratic way of doing just that, when it concerns the Canadian case.
References:
1: Original: Dixon, Rosalind (2011) “Constitutional amendment rules: a comparative perspective” Public Law and Legal Theory Working Paper Series Paper No. 347 (Accessible here: http://www.law.uchicago.edu/files/file/347-rd-comparative.pdf) Accessed on Nov. 16, 2014.
2: Assigned: Besso, Michael (2005) "Constitutional Amendment Procedures and the Informal Political Construction of Constitutions." The Journal of Politics 67 (1), 69-87.
3: Original: Parliament of Canada, “The Notwithstanding Clause of the Charter” (Accessible here: http://www.parl.gc.ca/content/lop/researchpublications/bp194-e.htm) Accessed on Nov. 16, 2014.
4: Original: Dixon, Rosalind (2011) “Partial Constitutional Amendments” Journal of Constitutional Law 13(3), 643-685 (notably pg. 660).
David Smellie
ReplyDeleteI agree with Stephen’s analysis that Canada has a very rigid Constitution. This idea is also confirmed by Lijphart who gives Canada a ranking of maximum rigidity in terms of its Constitution (3). I must disagree about the role that informal amendments (especially judicial review) play in amending the Constitution however. Lijphart appears to share my view listing Canada as a country with strong judicial review (3). According to George Tsebelis, a court qualifies as a veto player if it rules on matters of constitutional regard (4). This is true in the case of Canada with a wide prerogative to protect human rights in addition to interpreting the Canadian Constitution (2). This activist Supreme Court should be expected to take a high number of cases per year (40-75), which is a significant amount compared to other courts although still less than the US Supreme Court, which is generally regarded as the most activist courts (5) (6) (4). This mandate means that the Supreme Court of Canada is able to informally amend the Constitution at will.
Canada is also a common law country, as would be expected based on the fact it was a colony of the United Kingdom (4). This means Canada will be expected to follow the protocol of stare decisis (4). Because this principle builds up the judicial branch through establishing precedent, the Canadian Supreme Court can be expected to grow in power mimicking the growth in activism of the United States Supreme Court. This growth will make informally amending the constitution through judicial review easier in the future as Canada’s Supreme Court recently obtained a new set of constitutional powers with the Constitution Act of 1982 (3). Based on this judicial power, most changes to Canada’s constitution can be expected to be informal due to the strict requirement to amendments, a factor that holds with Lijphart’s predictions for the changing of constitutions (3).
References:
1. Assigned: CCW Files on Canada: “Canada constitution.doc”
2. Canadian constitution.https://www.constituteproject.org/constitution/Canada_2011.pdf
3. Assigned: Lijphart Chapter 12
4. Veto Players: How Political Institutions Work by George Tsebelis
5.http://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_United_States
6. http://en.wikipedia.org/wiki/Supreme_Court_of_Canada