Amendment of the Constitution: Applying the
Fulton-Favreau Formula
Bora Laskin *
On October 14, 1964, a federal-provincial Conference announced
the unanimous acceptance by the representatives of the participating
governments of a proposal (itself unanimously recommended by a
conference of the Attorneys-General of Canada and of the Provinces)
for a purely Canadian-operated amending procedure for the Canadian
Constitution.’ The proposal, in its main outlines, is the same one
that failed to get unanimous approval of the Attorneys-General in
1961 when it was formulated in a conference under the chairmanship
of the then federal Attorney-General, E. D. Fulton. Changes in a
few provisions of that formula, considered by at least one Province
to be significant, and a change of Government in another Province,
produced unanimity under a succeeding federal Attorney-General,
Guy M. Favreau. The formula is embodied in a draft bill which, if
enacted in its present or altered form by the Parliament of Great
Britain, will sever the last formal constitutional (and, certainly,
legislative) link between Great Britain and Canada.2
The communique by which the federal-provincial Conference
hailed the agreement on the Fulton-Favreau formula referred to
efforts made since 1950 to fashion an acceptable amending procedure.
A reference to the work of the committee of Attorneys-General which
considered the question in 1950 shows that the Fulton-Favreau for-
mula departs in at least two aspects from the views entertained
in 1950.3 First, and highly important, it represents a hardening in
Professor of Law, University of Toronto.
1 In this article I shall treat the “Canadian Constitution” or the “Constitution”,
as it is later referred to, as consisting of the British North America Act, 1867,
and later Acts of that name which changed or added to the terms of the original
Act by amendments of which the latest was in mid-1964. There were five schedu-
les to the original Act, which are referred to in various of its sections. There
is a wider definition in the draft bill embodying the Fulton-Favreau formula, and
the other statutes comprised in the definition could profitably be subjected to the
same analysis as is being attempted here.
2The draft bill embodying the formula and ancillary provisions, and including
provisions for inter-delegation, is annexed to this article as an appendix.
3 See Proceedings of the Constitutional Conference of Federal and Provincial
Governments, January 10-12, 1950, p. 117.
No. 1]
AMENDMENT OF THE CONSTITUTION
favour of provincial control of the amending process, beyond what
was envisaged in 1950, in the entrenchment of all provincial legis-
lative power against adverse change save by unanimous consent.
Second, it leaves the initiative for change in Parliament alone instead
of permitting change to be formally initiated by provincial legislatures
as well as by Parliament, as had been suggested in 1950. Moreover,
although the 1950 Conference had recommended consideration of the
delegation of legislative powers as an allied matter, it was only in
the Fulton conferences in 1960 and 1961 that this item was developed,
and it became part of the Fulton-Favreau formula in the same terms
in which it was worked out in the Fulton formula in 1961.4
However desirable it may be to exclude further formal British
participation in Canadian constitutional matters, it is clear (as it
was clear in all the Conferences from 1950 to date) that an amending
formula cannot sensibly be considered apart from the matters to
which it will be applied. Of course, it is possible to be so concerned
with terminating the role of the British Parliament as to seek agree-
ment on a formula which will have the highest common denominator
of acceptance by Canada and the Provinces, a formula that will
ensure a veto by any one of them over change unacceptable to it.
The Fulton-Favreau formula goes a considerable distance in this
direction, and in this respect may be said to herald a new compact
theory of Canadian confederation. Without at this time embarking
on any close examination of the merits of the formula, it should be
a useful aid to an assessment of its merits to deal concretely with
its application to the various provisions of the British North America
Act. I would add that I shall refrain, also, from any present con-
sideration of the delegation features of the formula and will say
only that it is a delusive hope to expect those features to provide
any element of flexibility which is not otherwise available.5
4 For a short comment on the Fulton formula, see Laskin, Amendment of the
Constitution, (1963) 15 Univ. of Tor. L. J. 190.
rIt should be appreciated that the Fulton-Favreau proposals on inter-delegation
of legislative power do not permit wholesale delegation of legislative power in
relation to classes of subjects, but only the enactment of particular laws by way
of delegation on the appropriate consent of the delegating legislature, whether
Parliament or a provincial legislature, and with the adherence of at least four
provincial legislatures. However, although delegation to Parliament of power to
enact a particular statute may be approved by four Provinces, the statute is not
operative beyond the Provinces which have approved it, and hence there is still
the dilemma of requiring unanimity to effect a national policy. The delegation is
revocable by any approving Province, and this means general consent and stabil-
ity may have to be dearly bought. Delegation from Parliament to the Provinces
is mere window-dressing because Parliament can limit its legislation to a Prov-
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Save in so far as it provides for delegation (and, of course, in
so far as it establishes an amending procedure), the Fulton-Favreau
formula does not alter any aspect of provincial legislative power, but
it does reduce the legislative power of the Parliament of Canada as
presently found in section 91(1) of the British North America Act,
a provision enacted in 1949. This provision, which, subject to certain
exceptions (including provincial legislative powers, denominational
schools, the use of English and French, and some others) authorizes
the Parliament of Canada to amend “the Constitution of Canada”,
may rightly be regarded as the federal counterpart to section 92(1)
by which a Provincial Legislature is empowered to amend “the
Constitution of the Province except as regards the office of Lieute-
nant-Governor”. 6 The draft statute embodying the Fulton-Favreau
formula repeals sections 91(1) and 92(1), and re-enacts section
92(1) in the very words in which it is now expressed but re-enacts
section 91(1) with more exceptions than are presently in it. The
additional exceptions have to do with preserving from unilateral
change by Parliament (1) provisions of the British North America
Act respecting the functions of the Queen and of the Governor-
General in relation to the Parliament or Government of Canada; (2)
provisions respecting provincial representation in the Senate and
residence qualifications of Senators; and (3) provisions respecting
proportionate representation of the provinces in the House of Com-
mons. Apart from the exceptions in this re-enacted provision, the
Parliament of Canada is free unilaterally to amend the British North
America Acts (1867 to 1964) “in relation to the executive Govern-
ment of Canada and the Senate and House of Commons”. So too,
each provincial Legislature is free unilaterally to amend its Cons-
titution except as regards the office of Lieutenant-Governor. For
all practical purposes, therefore, there are certain provisions of the
British North America Acts which have no more force than an
ordinary statute and hence are outside of any specific amending
process. These provisions will be enumerated below.
ince or to several Provinces, and hence nothing is added except the possibility
of a stripping operation on pieces of federal power. Of course, Parliament may
revoke the delegation, and so again there will be uncertainty of operation. Much
more could be said but this is not the place. Notice may be taken of the fact that
inter-delegation of administrative power is open without the need of constitutional
amendment to authorize it, and this makes federal delegation to the Provinces
hardly a startling achievement: see P.E.L Potato Marketing Board. v. H.B. Willis
Inc., [1952] 2 S.C.R. 392, [1952] 4 D.L.R. 146. Delegation is no guarantor of
flexibility in the exercise of legislative power and, a fortiori, it is even less a
relief against a rigid amending formula.
6 See Scott, The British North America (No. 2) Act, 1949, (1950) 8 Univ. of
Tor. L. J. 201.
No. 1]
AMENDMENT OF THE CONSTITUTION
The Fulton-Favreau formula is, otherwise, in truth a three-fold
formula. It requires unanimity of Canada and the Provinces in some
cases; it requires in other cases consent of Canada and of two-thirds
of the Provinces representing at least 50 per cent of the population
of Canada; and it requires, in a third class of cases, consent of
Canada and of the Provinces involved therein, such cases being those
where the provisions of the Constitution refer to one or more but not
all the Provinces. In each of the three situations, the consents in
question must be those of the Parliament of Canada and of the
Legislatures of the Provinces. Consents of the respective Govern-
ments alone will not satisfy the formula.
How, then, do the various provisions of the British North America
Acts, 1867-1964, stand in the application thereto of the Fulton-Fa-
vreau formula ? The basic Act of 1867 consisted of a preamble and
147 sections ;7 and as amended to 1964 (in so far as such amendements
added new sections rather than merely altering or replacing existing
sections) it embraces 149 sections. From these, it is necessary to
subtract nine sections that were repealed, over the years, by the
Parliament of Great Britain.8 Of the remaining 140 sections, there
are a good many that were transitional provisions or were otherwise
spent; others that may be classed as executed provisions (and spent
in that sense); and others that were construction or interpretation
sections and hence without independent viability. On my calculation
there are fifty sections that fall withii these three groups.9 So long as
they are in the Constitution they will be subject to such “amending”
procedures for their repeal as may be finally agreed upon (unless
they are specifically dealt with when the amending procedure enact-
ment is passed by the British Parliament), but they do not represent
anything of significance for the Fulton-Favreau formula to play
upon. I propose therefore to subtract them from the 140 sections
already mentioned so as to leave 90 for which the formula might be
7 The preamble, referring as it does to three Provinces, one of which (the
Province of Canada) disappears as such by virtue of the Act, might be regarded
as subject to change or repeal by Parliament and four Provinces only (i.e. Ontario,
Quebec, New Brunswick and Nova Scotia) but I would read it as “affecting” all
the Provinces and hence to be subject to the two-thirds rule of the Fulton-Favreau
formula.
8 These are sections 2, 25, 42, 43, 81, 89, 118, 127 and 145.
9 1 do not expect my classifications nor my assignment of particular sections to
the various classifications to go unchallenged; nor do I regard my estimate as
unchallengeable. The fifty sections that I speak of include sections 3, 4, 5, 6, 10,
13, 19, 40, 41, 56, 57, 62, 64, 66, 70, 83, 84, 88, 102, 103, 104, 105, 106, 107,
110, 111, 112, 113, 114, 115, 116, 119, 120, 122, 123, 126, 129, 130, 131, 134, 135.
137, 138, 139, 140, 141, 142, 143, 146 and 147.
McGILL LAW JOURNAL
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regarded as significant. But from these it will be necessary to sub-
tract those sections falling within unilateral federal or provincial
competence as concerning, respectively, the executive Government
of Canada and the Senate and House of Commons, and the Cons-
titution of the Province.
Let me deal briefly with the fifty sections that I regard as having
no remaining constitutional force although they have formal validity.
The first group of these, those that are transitional or are otherwise
spent, include sections 40 and 41, specifying federal electoral districts
and applicable federal election laws unless Parliament otherwise
provides; and Parliament has otherwise provided. This group also
includes in my estimation sections 56 and 57, respecting disallowance
and reservation of federal statutes and bills, involving action by
British governmental authorities, which is utterly impossible to con-
template today.10 Among other provisions in this group is section
64 respecting the executive authority in New Brunswick and Nova
Scotia which was to continue until altered under the authority of
the British North America Act. This last phrase I consider to be
a reference to the plenary power given by section 92(1). I would
refer also to sections 122, 129 and 134, continuing existing laws
until altered by Parliament or a provincial Legislature, as the case
may be. These sections are, no doubt, important links or bridges
with the past, but they do not represent anything presently signif-
icant either for constitutional structure or constitutional function.
In the second group of sections are executed provisions such as
section 3, under which the new Canada was proclaimed on July 1,
1867; section 5, respecting the division of Canada into Provinces;
and section 6, respecting the division of the Province of Canada into
Ontario and Quebec. This group includes (in my view) a host of
provisions respecting proclamations (sections 139 and 140) ; division
of debts, assets and records between Ontario and Quebec (sections
142 and 143); creation of revenue funds, transfer of property and
assumption of debts (see, generally, sections 102 to 116 but excluding
sections 105 108, 109 and 110), which may sensibly be regarded
as having been carried out without leaving any residue of authority
to be concerned about in any constitutional sense. In the third group,
as being construction or interpretation provisions, are six sections
consisting of section 4 (Canada means Canada as constituted under
the Act); sections 10 and 13 (explaining the effect of references
10 This does not mean that they are legally ineffective: see Reference re Dis-
allowance and Reservation of Provincial Legislation [1938] S.C.R. 71, [1938] 2
D.L.R. 8.
No. 1]
AMENDMENT OF THE CONSTITUTION
to the Governor-General) ; sections 62 and 63 (comparable provisions
respecting the Lieutenant-Governors) ; and section 138 (respecting
the use of the words “Upper Canada” and “Lower Canada” for
Ontario and Quebec).
From the 90 sections now remaining, there must be subtracted,
before bringing into play the three-fold Fulton-Favreau formula,
those that are within the unilateral competence of Parliament or of
a provincial Legislature. The estimate of numbers here is somewhat
more difficult than in the other situations covered, because there
is doubt how far some of the provisions of the British North America
Acts are subject to such unilateral amendment or even repeal. Broadly
speaking, there are twenty sections that are arguably within Parlia-
ment’s sole competence to change, and nineteen such sections within
sole provincial competence.” Among these are sections concerning
the functioning of the Senate (e.g., sections 29 to 33 and others) ;
provisions concerning the functioning of the House of Commons (e.g.,
sections 44 to 49); and sections concerning the Quebec Legislative
Council (e.g., sections 72 to 80).
This leaves, on my count, some 51 sections of the British North
America Acts to which the formulae for amendment will have
concrete application. Of the three stems of the Fulton-Favreau
formula, the one with the least force in terms of application is that
which operates upon those provisions of the Constitution that refer
to one or more but not all the Provinces. Change in these provisions
depends upon the concurrence of Parliament and of the Legislature
of every Province to which they refer. Some of the provisions which
would formally fall within this category have already been dismissed
as having been transitional or spent or executed. There are three
other sections that may justifiably be brought within it; section 7,
respecting the limits of Nova Scotia and New Brunswick (amend-
ment here would, of course, have to be envisaged as not affecting
the limits of any other Province) ; section 65, respecting the con-
tinuation in the Lieutenant-Governors of Ontario and Quebec of
powers formerly exercisable by the Governors or Lieutenant-Gover-
nors of Upper Canada, Lower Canada or the Province of Canada;
11 The twenty sections that I regard as fairly being within unilateral federal
competence are sections 18, 23 (in part), 29, 30, 31, 32, 33, 35, 36, 39, 44, 45, 46,
47, 48, 49, 51 (in part), 53, 54 and 128 (in part). The nineteen sections similarly
within unilateral provincial competence are sections 63, 68, 69 (in part), 71
(in part), 72, 73, 74, 75, 76, 77, 78, 79, 80, 85, 86, 87, 90 (in part), 136 and 144.
Quaere whether section 128 should not be added in part to each of these group-
ings!
McGILL LAW JOURNAL
[Vol. 11
and section 82, respecting the summoning of the Legislative Assem-
blies of Ontario and Quebec by their respective Lieutenant-Governors.
That stem of the Fulton-Favreau formula which requires una-
nimity of Parliament and the Legislatures of the Provinces applies
to the central parts of the Constitution, those relating to legislative
power. The other stem, that which involves the concurrence of
Parliament and two-thirds of the Legislatures representing at least
50 per cent of the population of Canada, applies more to constitutional
structure than to function, although, as will be seen, it applies to
executive function to a large extent. The unanimity requirement
applies to more than legislative power. As set out in the draft bill,
it is applicable to changes effecting (1) the amending formula itself
and, indeed, any part of the draft bill; (2) section 51A of the
Constitution guaranteeing no fewer members of the House of Com-
mons to a Province than the number of Senators therefrom; and it
then goes on, in section 2, to require unanimity for any law “affecting
any provision of the Constitution of Canada relating to (a) the powers
of the legislature of a province to make laws; (b) the rights or
privileges granted or secured by the Constitution of Canada to the
legislature or the government of a province; (c) the assets or property
(d) the use of the English or French language”.
of a province;
Clause (d) refers, of course, to section 133 of the British North
America Act, and clause (c) refers to such provisions as are found
in sections 109, 113 and 117. So far as concerns provincial assets
or property, it may rightly be said that they are not shielded from
federal expropriation under the unanimity requirement since it
applies only to change by constitutional amendment and does not
curtail any existing power of Parliament to expropriate provincial
Crown property.12 Section 9 of the draft bill is specific that “nothing
in this Part diminishes any power of the Parliament of Canada or
of the legislature of a province, existing at the coming into force
of this Act, to make laws in relation to any matter”.
Clause (a), above, in entrenching all provincial legislative power
says nothing expressly about federal legislative power. Does this
mean, then, that federal power is subject to the two-thirds rule
while provincial power is absolutely entrenched ? The answer may
depend, in part at least, on what is meant by the terms of the
proposed section 2 which require unanimity for an amendment
“affecting any [constitutional] provision …
relating to” provincial
legislative power. It is long-established constitutional doctrine that,
by and large, all law-making power has been distributed either to
12 See, for example, Attorney-General of Quebec v. Nipissing Central Railway,
[1926] A.C. 715, [1926] 3 D.L.R. 545.
No. 1]
AMENDMENT OF THE CONSTITUTION
Parliament or to the Legislatures of the Provinces. 13 Hence, it will
ordinarily follow that any enlargement of federal power involves
a corresponding attenuation of provincial power, and vice versa.
Unanimity will, therefore, be necessary to increase federal power,
but does it follow that unanimity will be required to diminish it ?
It will certainly be required to diminish provincial power directly,
but what if it is proposed to enhance provincial power ? Will an
amendment of the latter kind be one “affecting” provincial legislative
power ? The answer cannot depend on whether the proposed change
is made in the terms of section 92 rather than in the terms of
section 91; indeed, it may be accomplished by an entirely new section.
The word “affecting” is open to the construction of “adversely af-
fecting”, in which case an enhancement of provincial power by a
diminution of federal authority could be wrought by the two-thirds
formula. Of course, there is the overriding factor that no such
change or, indeed, any change can take place without the initiation
thereof, formally at any rate, by the Parliament of Canada.
There are ten sections of the Constitution that are integral in
the distribution of law-making power. 14 (There are other provisions
strewn through the British North America Acts that confer legis-
lative power but they are of a lesser order).15 Of these ten, sections
91 and 92 (each of which is subdivided into classes of subjects)
dominate the scheme of distribution. Under the present state of
constitutional interpretation, one of those ten sections, namely, sec-
tion 132 dealing with the power to implement international treaties,
is a dead letter.’ 6 The others have a continuing importance, whether
they operate (as most of them do), to confer affirmative legislative
power, or, as is the case with sections 121 and 125, to limit or
deny legislative power. The scope of the limitation or denial is no
less relevant to the scheme of distribution than is the express author-
ization to legislate. Overall, then, it is a pivotal point whether the
reference in the Fulton-Favreau draft bill to provincial legislative
13 Most recently enunciated by Rand J. in Murphy v. C.P.R., [1958] S.C.R. 626,
15 D.L.R. 2d 145.
14 These are sections 91, 92, 93, 94, 94A, 95, 101, 121, 125 and 132.
15 For example, sections 40 and 41.
16 See Attorney-General of Canada v. Attorney-General of Ontario, [1937J
A.C. 326, [1937] 1 D.L.R. 673. But see the questioning of the Labour Conventions
case in Francis v. The Queen, [1956] S.C.R. 618, 3 D.L.R. 2d 641. Would it be open
to reinvigorate section 132 through the two-thirds formula by repealing the
reference to “British Empire” and “Empire” and substituting a reference
to
Canada? In my view, the unanimity rule would apply because section 132 must be
viewed under its construction by the Courts, and as presently construed, the
change suggested would adversely affect the legislative power of the Provinces.
McGILL LAW JOURNAL
[Vol. 11
power (to the exclusion of any express reference to federal law-
making authority) must be taken as putting provincial powers on
a higher plane of security against adverse change than federal powers.
In a broad sense, the law-making authority of each “affects” the
other, and despite the emphasis in the draft bill on provincial power,
it can be urged that federal power is equally
involved in any
enhancement as well as diminution of provincial competence. The
trite remark to make at this point is to say that we are in the
hands of the Courts on the meaning to be extracted from the
clause (a) of section 2 of the draft bill, and if the unanimity rule
does not apply to a diminution of federal legislative power, the
two-thirds rule will govern.
In assessing what the Courts are likely to say, it should be
remembered that the word “affecting”, which is a key term of
the amending formula, has been an old friend in Canadian consti-
tutional interpretation. The mechanics of constitutional construction
resulted in opposing it to the phrase “in relation to”, which is a
governing expression in sections 91 and 92 whereas the word “affect-
ing” is nowhere to be found in the sections of the Constitution on
legislative power. The results of construction have been to endow
the term “affecting” with a wider compass than is accorded to the
phrase “in relation to”. As our Constitution has been interpreted,
legislation may “affect” matters coming within the specified classes
of subjects in sections 91 and 92 without being “in relation to” such
matters. 17 Occasionally, the Courts, even the Privy Council, have used
the former when, in the result, they intended the latter ;18 but the
distinction between them is clear in principle albeit there is consider-
able difficulty in applying the distinction in concrete cases. Indeed,
it is this difficulty that makes a purely mechanical conception of
constitutional interpretation an exercise in aridity and futility so
far as any understanding of constitutional power is concerned. 19 The
obvious alternative to leaving the matter under discussion at large
is to remove, or at least ease, the uncertainty by a clarifying revision
of the draft bill. The Courts may have to pass on the situation in
any event, but it is better that they have clearer guidance than
the present terms provide.
17 See Gold Seal Ltd. v. Dominion Express Co. (1921), 62 S.C.R. 424, 62
D.L.R. 62.
18 See, for example, Attorney-General of B.C. v. Attorney-General of Canada,
[1937] A.C. 377, [1937] 1 D.L.R. 691.
19 See Laskin, Tests for the Validity of Legislation: What’s the “Matter” ?,
(1955) 11 Univ. of Tor. L. J. 114.
No. 1]
AMENDMENT OF THE CONSTITUTION
The remaining fully entrenched provisions are those relating to
“the rights or privileges granted or secured by the Constitution of
Canada to the legislature or the government of a province”. This
specification is borrowed immediately from section 91(1) of the
British North America Act where it is found as one of the exceptions
to the power therein given to Parliament to amend “the Constitution
of Canada”. What the quoted phrase means is far from clear. Con-
ceivably, it could apply to such rights as those given by the natural
resources agreements of 1930 which, as confirmed by the British
North America Act, of the same year, turned over to the western
provinces their natural resources. 20 But since “assets or property
of a Province” are already entrenched under the Fulton-Favreau
formula, it would be idle for the draftsman to cover this again,
unless in doing so he covered more than provincial assets or property.
A similar observation may be made with respect to legislative power.
Moreover, the phrase “rights or privileges granted or secured…
to the Legislature or the government of a province” could cover
matters involved in the structure of the provincial organs of govern-
ment; but, in that respect, they would be within unilateral provincial
competence to change, except as regards the office of Lieutenant-
Governor. I pass over those provisions of the Constitution which I
have characterized as transitional or executed or otherwise spent
(even though, possibly, some of them could fall under the phrase
under discussion),21 and this leaves for consideration certain pro-
visions operating by exception to federal unilateral power to amend
the Constitution in relation to the federal executive government and
the Senate and House of Commons, and also certain provisions, not
previously alluded to, touching the office of Lieutenant-Governor
and the appointment of Judges of provincial, superior, district and
county Courts.
In my submission, such provisions, as are found in sections 96
to 100 of the British North America Act respecting the appointment,
tenure and salary of those Judges are subject to the two-thirds rule
of the Fulton-Favreau formula and not to the unanimity rule since
such rights or privileges as they accord to the Provinces are not
rights or privileges granted or secured to the Legislature or Govern-
ment of a Province. There is perhaps one ground on which this
20 The British North America Act, 1930 (Imp.), c. 26. However, I should point
out that these agreements include provisions for their amendment by the Domi-
nion and the Province concerned; and it would seem, therefore, that they fall
within that stem of the Fulton-Favreau formula that pertains to amendments by
parliament and one or more (but not all) provincial Legislatures.
21 For example, sections 65 and 68.
McGILL LAW JOURNAL
[Vol. 11
submission is challengeable, and it is that since the provincial Courts
are, as such, established by the Provincial Legislature under powers
which it undoubtedly has, it enjoys a correlative right or, perhaps,
privilege, to have Judges appointed thereto and paid from the federal
purse, as provided by sections 96 to 100. This is a construction which,
to me at any rate, seems far fetched. The fact that the 1960 amend-
ment to the Constitution, prescribing compulsory retirement of pro-
vincial superior Court Judges at age 75, was made with the unanimous
consent of the Provinces does not establish that any right or privilege
of the Legislature or Government of a Province was involved.22 The
consent was sought as a matter of political expediency, and, however
great the provincial interest in the staffing of provincial superior
Courts there was no legal right or privilege of participation by a
provincial Legislature or Government in the appointment of such
Judges; the power is one vested by law in the federal executive
government.
Conceivably, the “rights or privileges” entrenchment clause might
be regarded as embracing certain provincial rights (mentioned be-
low) to Senate representation and proportionate House of Commons
representation but, again, it is difficult to consider these as being
rights or privileges granted or secured by the Constitution to a pro-
vincial Legislature or Government. It is tempting to say that the
lack of any obvious substance or content in the entrenched “rights
or privileges” clause may persuade the Courts to take a broad, and
even charitable, view of it, simply on the principle that the proponents
of the amending formula must have had something in mind other
than the matters specified in other clauses. To take another example,
would section 8 of the Constitution, requiring a decennial census
which distinguishes the populations of the Provinces, fall within the
unanimity rule as a “right or privilege” section or is it within the
lesser requirements for change ?23 If “rights or privileges granted
or secured by the Constitution of Canada to the legislature or govern-
ment of a province” means the same thing as if the word “province”
was unqualified, there will be much more entrenchment to contend
with than the strict words of the clause would suggest.
Somewhat similar considerations may be suggested in respect of
the office of Lieutenant-Governor. The office, it will be remembered,
22 The British North America Act, 9 Eliz. 2, 1960 (Imp.), c. 2, effective March
1, 1961.
23 It may be noted that among existing exclusive federal powers which are
conferred by section 91 notwithstanding anything in the Act is legislative power
in relation to “the census and statistics” (para. 6 of section 91). In terms,
therefore, it enables Parliament to ignore the prescriptions of section 8.
No. 1]
AMENDMENT OF THE CONSTITUTION
is excluded from the unilateral power given to a Province to amend
its constitution, which in this connection is a reference to the struc-
ture and operation of the organs of government (but not a reference
to legislative power). So far as concerns the office of Lieutenant-
Governor (and I would regard the constitutional functions attached
the question is whether it falls
to the office as being part of it)
within the unanimity rule for purposes of change or within the
two-thirds rule. It can only be within the unanimity rule if it is a
“right or privilege” as aforesaid, and I would find it odd indeed if
the office of Lieutenant-Governor were regarded in that fashion
when it is in law a necessary part of the Legislature and of the
Government.24 There are some eight sections of the Constitution
which concern the Lieutenant-Governor’s office and constitutional
functions, and, in my view they would be governed as to amendment
by the two-thirds rule, save as some of them (e.g., sections 69, 71 and
82) may be regarded as requiring only the consent of Ontario and
Quebec, in addition to that of Parliament, because those two Provinces
alone are mentioned in the above-named sections. Sections 58 to 61
and section 90 (in part) concern the office strictly and the constitu-
tional powers annexed to it, and have an application to all Provinces.
The provisions of the Constitution that concern one or more but
not all the Provinces, those that concern legislative power or are
otherwise entrenched, those touching provincial judicial appointments
and those referable to the office of Lieutenant-Governor total about
thirty sections, and this leaves to the force of the two-thirds rule
about twenty sections in addition to those referred to above as coming
within the rule. These twenty sections, more or less, are those exclud-
ed from the unilateral competence of Parliament “in relation to the
executive Government of Canada and the Senate and House of Com-
mons”. In the main, they concern “the functions of the Queen and
the Governor-General in relation to the Parliament or Government
of Canada”; for example, sections 9, 11, 12 and 14 to 17 concern the
Queen’s functions with respect to the Canadian Parliament and
Government; sections 24, 26, 27, 38 and 55, involve the Queen and
the Governor-General (but primarily the latter) ; and sections 34 and
67 involve other functions of the Governor-General. (The latter sec-
tion concerns not the Government of Canada but the appointment of
an administrator for the Province where the Lieutenant-Governor
cannot act). Other matters within the two-thirds rule as being exclud-
the provision for an
ed from unilateral federal competence are (1)
annual session of Parliament (section 20) ; the provisions for a maxi-
mum five year term save in emergency circumstances (section 50)
24 See sections 58, 69 and 71 of the British North America Act.
McGILL LAW JOURNAL
[Vol. 11
the provincial representation in the Senate and the residence qualifi-
cations of Senators (sections 21, 22 and, in part section 23) ; and the
principle of proportionate provincial representation in the House of
Commons (sections 37, 51 and 52). (The two last mentioned provi-
sions may possibly be caught by the entrenched “rights or privileges”
clause, as previously discussed). Two other matters excluded from
unilateral federal competence are the protection of provincial House
representation which cannot be less than the number of Senators from
a Province, and the use of English or French. Both of these (sections
51A and 133) are expressly included in the entrenched provisions
even though, in terms, Quebec is the only Province concerned as such
with section 133.
Mention ought to be made of the very first section of the original
British North America Act, which is still intact, specifying the name
or short title of the Act. Presumably, it would fall within the two-
thirds rule and could be altered thereby to express a more domestic
conception of the Constitution. Should the title of the enactment be
changed to the “Constitution of Canada”, an interesting question
would arise whether this would permit broader rules of construction
than the statutory rules which are now applied.
This general survey of the application of the Fulton-Favreau
formula to the Constitution, viewing the former as an operating
instrument, indicates that the Constitution could be pruned with
advantage and that closer study of the distribution of the parts of
the Constitution under the amending formula would be desirable, if
this has not already been done as an official undertaking 25. The rigid-
ity of the formula in its particular application to the whole range of
provincial and federal legislative power, as discussed above, will be
more pronounced if the “rights or privileges” clause is found to
possess wider scope than its strict construction would permit. One
intriguing thought comes to mind in connection with the operation
of the formula. It is possible that an amendment that can be made
by Parliament with approval of a two-thirds or even lesser proportion
of Provincial Legislatures might when made come within the
25 This was done in the second session of the 1950 constitutional conference,
the proceedings of which show the assignment by each of the participating
governments of various sections of the Constitution to the classifications sug-
gested by the Committee of Attorneys-General: see Proceedings of the Constitu-
tional Conference of Federal and Provincial Governments, Second Session,
September 25-28, 1950, pp. 76 ff. Although tables prepared for the Conference
showed some measure of agreement on the assignments, the participating gov-
ernments were apart on well over half the provisions of the British North
America Act.
No. 1]
AMENDMENT OF THE CONSTITUTION
entrenched provisions so as to require unanimous consent for future
change 26.
APPENDIX
An Act to provide for the amendment
in Canada of the Constitution of Canada
WHEREAS the Senate and House of Commons of Canada in Parliament
assembled have submitted Addresses to Her Majesty praying that Her Majesty
may graciously be pleased to cause a measure to be laid before the Parliament
of the United Kingdom for the enactment of the provisions hereinafter set forth:
Be it therefore enacted by the Queen’s most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the same, as follows:
Part I
Power to amend the Constitution of Canada
1. Subject to this Part, the Parliament of Canada may make laws re-
pealing, amending or re-enacting any provision of the Constitution of Canada.
2. No law made under the authority of this Part affecting any provision
of this Act or section 51A of the British North America Act, 1867, or affecting
any provision of the Constitution of Canada relating to
a) the powers of the legislature of a province to make laws,
b) the right or privileges granted or secured by the Constitution of Canada
to the legislature or the government of a province,
c) the assets or property of a province,
d) the use of the English or French language,
shall come into force unless it is concurred in by the legislatures of all the
provinces.
3.
(1) No law made under the authority of this Part affecting any
provision of the Constitution of Canada that refers to one or more, but not
all, of the provinces, shall come into force unless it is concurred in by the
legislature of every province to which the provision refers.
(2) Section 2 of this Act does not extend to any provision of the
Constitution of Canada referred to in subsection (1) of this section.
4.
(1) No law made under the authority of this Part affecting any
provision of the Constitution of Canada relating to education in any province
other than Newfoundland shall come into force unless it is concurred in by the
legislatures of all the provinces other than Newfoundland.
26 For example, the power to appoint provincial superior Court Judges might
be given to the Governments of the Provinces.Would it not thereafter be an
entrenched provision, amendable only by unanimous consent ?
McGILL LAW JOURNAL
[Vol. 11
(2) No law made under the authority of this Part affecting any
provision of the Constitution of Canada relating to education in the province
of Newfoundland shall come into force unless it is concurred in by the legislature
of the province of Newfoundland.
Sections 2 and 3 of this Act do not extend to any provision of
the Constitution of Canada referred to in subsection (1) or (2) of this section.
(3)
5. No law made under the authority of this Part affecting any provision
of the Constitution of Canada not coming within section 2, 3 or 4 of this Act
shall come into force unless it is concurred in by the legislatures of at least
two-thirds of the provinces representing at least fifty per cent of the population
of Canada according to the latest general census.
6. Notwithstanding anything in the Constitution of Canada, the Parliament
of Canada may exclusively make laws from time to time amending the Consti-
tution of Canada in relation to the executive Government of Canada, and the
Senate and House of Commons, except as regards
a) the functions of the Queen and the Governor General in relation to the
Parliament or Government of Canada;
b) the requirements of the Constitution of Canada respecting a yearly
session of Parliament;
c) the maximum period fixed by the Constitution of Canada for the dur-
ation of the House of Commons, except that the Parliament of Canada
may, in time of real or apprehended war, invasion or insurrection,
continue a House of Commons beyond such maximum period, if such
continuation is not opposed by the votes of more than one-third of the
members of such House;
d) the number of members by which a province is entitled to be represented
in the Senate;
e) the residence qualifications of Senators and the requirements of the
Constitution of Canada for the summoning of persons to the Senate
by the Governor General in the Queen’s name;
f) the right of a province to a number of members in the House of Com-
mons not less than the number of Senators representing such province;
g) the principles of proportionate representation of the provinces in the
House of Commons prescribed by the Constitution of Canada; and
h) the use of the English or French language.
7. Notwithstanding anything
in each
province the legislature may exclusively make laws in relation to the amend-
ment from time to time of the Constitution of the province, except as regards
the office of Lieutenant-Governor.
in the Constitution of Canada,
8. Any law to repeal, amend or re-enact any provision of the Constitution
of Canada that is not authorized to be made either by the Parliament of Canada
under the authority of section 6 of this Act or by the legislature of a province
under the authority of section 7 of this Act is subject to the provisions of
sections 1 to 5 of this Act.
9. Nothing in this Part diminishes any power of the Parliament of Canada
or of the legislature of a province, existing at the coming into force of this
Act, to make laws in relation to any matter.
No. 1]
AMENDMENT OF THE CONSTITUTION
10. No Act of the Parliament of the United Kingdom passed after the
coming into force of this Act shall extend or be deemed to extend to Canada
or to any province or territory of Canada as part of the law thereof.
11. Without limiting the meaning of the expression “Constitution of Cana-
da”, in this Part that expression includes the following enactments and any
order, rule or regulation thereunder, namely,
a) the British North America Acts, 1867 to 1964;
b) the Manitoba Act, 1870;
c) the Parliament of Canada Act, 1875;
d) the Canadian Speaker (Appointment of Deputy) Act, 1895;
e) the Alberta Act;
f) the Saskatchewan Act;
g) the Statute of Westminster, 1931, in so far as it is part of the law of
Canada; and
h) this Act.
Part II
British North America Act, 1867, amended
12. Class 1 of section 91 of the British North America Act, 1867, as
enacted by the British North America (No. 2) Act, 1949, and class 1 of section
92 of the British North America Act, 1867, are repealed.
13. The British North America Act, 1867, is amended by re-numbering
section 94A thereof as 94B and by adding thereto, immediately after section
94 thereof, the following heading and section :
Delegation of Legislative Authority
“94A.
(1) Notwithstanding anything in this or in any other Act, the
Parliament of Canada may make laws in relation to any matters coming within
the classes of subjects enumerated in classes (6), (10), (13) and (16) of section
92 of this Act, but no statute enacted under the authority of this subsection
shall have effect in any province unless the legislature of that province has
consented to the operation of such a statute in that province.
(2) The Parliament of Canada shall not have authority to enact a statute
under subsection (1) of this section unless
a) prior to the enactment thereof the legislatures of at least four of the
provinces have consented to the operation of such a statute as provided
in that subsection, or
b) it is declared by the Parliament of Canada that the Government of Canada
has consulted with the governments of all provinces, and that the
enactment of the statute is of concern to fewer than four of the provinces
and the provinces so declared by the Parliament of Canada to be con-
cerned have under the authority of their legislatures consented to the
enactment of such a statute.
18
McGILL LAW JOURNAL
[Vol. 11
b) a similar statute has under the authority of subsection
(3) Notwithstanding anything in this or in any other Act, the legislature
of a province may make laws in the province in relation to any matter coming
within the legislative jurisdiction of the Parliament of Canada.
of this section shall have effect unless
(4) No statute enacted by a province under the authority of subsection (3)
a) prior to the enactment thereof the Parliament of Canada has consented
to the enactment of such a statute by the legislature of that province, and
(3) of this
section been enacted by the legislatures of at least three other provinces.
(5) The Parliament of Canada or the legislature of a province may make
laws for the imposition of punishment by fine, penalty or imprisonment for
enforcing any law made by it under the authority of this section.
(6) A consent given under this section may at any time be revoked, and
a) if a consent given under subsection (1) or (2) of this section is revoked,
any law made by the Parliament of Canada to which such consent relates
that is operative in the province in which the consent is revoked shall
thereupon cease to have effect in that province, but the revocation of
the consent does not affect the operation of that law in any other
province, and
b) if a consent given under subsection (4) of this section is revoked, any
law made by the legislature of a province to which the consent relates
shall thereupon cease to have’ effect.
(7) The Parliament of Canada may repeal any law made by it under the
authority of this section, in so far as it is part of the law of one or more provinces,
but if any repeal under the authority of this subsection does not relate to all
of the provinces in which that law is operative, the repeal does not affect the
operation of that law in any province to which the repeal does not relate.
(8) The legislature of a province may repal any law made by it under
the authority of this section, but the repeal under the authority of this subsection
of any law does not affect the operation in any other province of any law
enacted by that province under the authority of this section.”
Part III
French Version
14. The French version of this Act set forth in the Schedule to this Act
shall form part of this Act.
Part IV
Citation and Commencement
15. This Act may be cited as the Constitution of Canada Amendment Act.
16. This Act shall come into force on the ……………………
day of …………………….
Schedule
