The Process of Constitutional Amendment for Canada
W. R. Lederman *
I. Introduction.
In 1967, Canada completes her first century as a federal country
under the British North America Act. Also, at this particular time,
Canadians find
themselves urgently considering and discussing
whether or not important changes should now be made in our federal
constitution, that constitution having served us so far almost without
substantial amendment. The main pressure for change comes from
claims for better constitutional recognition of the French fact in
Canadian life, both within and beyond -the boundaries of the Province
of Quebec. Among other things, this raises questions of the methods
of constitutional change in a federal country which accordingly now
require our attention in Canada more than ever before. This paper
expresses personal comment, opinion and analysis of the author con-
cerning the central issues of method in constitutional change as they
now confront us. Do we now bring the federal constitution home to
Canada and, if so, on what terms as to domestic control of change
or amendment?
It appeared quite recenty that this question was settled. A com-
plete set of domestic constitutional amending procedures was agreed
upon at a Federal-Provincial Conference of the Prime Minister of
Canada and the Premiers of the Provinces on October 14, 1964, as
embodied in the text of a bill entitled “An Act to provide for the
amendment in Canada of the Constitution of Canada.” This was
popularly known as the Fulton-Favreau Formula, being named for
the two Federal Ministers of Justice primarily responsible for
negotiating its final form. In February, 1965, a White Paper on
“The Amendment of the Constitution of Canada” was issued under the
auspices of the Honourable Guy Favreau, then Federal Minister of
Justice.’ This document set forth the history and present position
respecting amendment, the story of the development of the Fulton-
Favreau Formu’a and an analysis of the meaning of the Formula.
Nevertheless second thoughts set in, primarily, but not only, in the
*Dean of Law, Queen’s University, Kingston, Ontario.
1 (1965) Queen’s Printer, Ottawa, hereinafter cited as the White Paper. The
full text of the Fulton-Favreau Bill or Formula is given in Appendix 3 starting
at page 110.
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Province of Quebec, and the final agreement of the Lesage Govern-
ment and the Legislature of Quebec was not forthcoming as expected.
Then in June of 1966 the Lesage Government was defeated by the
National Union Party of Daniel Johnson, which had been explicitly
opposing the Fulton-Favreau Formula. With the Johnson Govern-
ment in power in Quebec, it is now clear that the whole problem of
patriation and amendment of the Canadian Constitution is open for
review once more.
In any event, the White Paper of 1965 is a full and careful
historical document the text of which was accepted as accurate by
the Federal and Provincial Governments before it was published.
There is no point in recapitulating here what has been well covered
in the White Paper. Accordingly, in what follows I assume a knowl-
edge of the main elements of the White Paper and of the chief
features of the proposed -set of procedures for amendment known as
the Fulton-Favreau Formula.
Il. The Constitution and the Technical System of the Fulton-Favreau
Formula.
About the first thing to be done if one is to consider methods
of amending the constitution is simply to define the meaning of the
category ‘constitution’ or ‘constitutional law’. All law flows from or is
part of the constitution, so that there is a sense in which all laws are
constitutional laws, finding their legitimate ancestry proximately or
remotely in what Professor Hans Kelsen called the Basic Norm.2
Obviously one cannot subject all legal change to special amending
procedures, so that more precise and discriminating definitions of
the content of the ‘constitution’ are necessary. An excellent short
definition is that of Sir Ivor Jennings,3 who said that the word
‘constitution’ in its more precise sense “means the document in which
are set out the rules governing the composition, powers and methods
of operation of the main institutions of government, and the general
principles applicable to their relations to the citizens.” His example
was the Constitution of the Irish Republic. In Canada, we have to
think in terms of many statutory documents and as well of ap-
propriate parts of the historically received English common law
concerning the Crown. Nevertheless, I suggest that the sort of things
we consider to be peculiarly constitutional, whatever their respective
forms, are those described by Sir Ivor Jennings. And, of course, not
all these things need to be subjected to special legislative procedures.
2 Hans Kelsen, General Theory of Law and State (1949) chapter X.
3 Sir W. Ivor Jennings, The Law and the Constitution, 5th edition (1959), p. 33.
No. 4] PROCESS OF CONSTITUTIONAL AMENDMENT
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The Fulton-Favreau Formula has to face this many-sided problem
of definition, and does it very well. It employs the general phrase
‘the Constitution of Canada’, and then proceeds to give this further
definition in two ways: by examples in Section 11 and by spelling
out sub-divisions of constitutional matters in Sections 2 to 8. Section
11 reads as follows:
Without limiting the meaning of the expression “Constitution of Canada”,
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, Session 2;
(e)
(f) the Saskatchewan Act;
(g) the Statute of Westminter, 1931, in so far as it is part of the law of
the Alberta Act;
Canada; and
(h) this Act.
This seems to suggest the Jennings concept of the word ‘con-
stitution’, the examples giving some precision of definition without
restriction to the sort of thing exemplified.
In addition, as indicated, Sections 2 to 8 of the Formula spell out
more precisely defined sub-divisions of things constitutional, including,
it should be noted, the separate constitutions of the respective prov-
inces. In this way different types of constitutional change are assigned
to different amending procedures, as deemed -appropriate. For ex-
ample, amendments affecting “the powers of a province to make laws”
would require a statute of the Parliament of Canada and the con-
currence of the legislatures of all the provinces. 4 Thus a requirement
for unanimity would be imposed respecting the whole of the federal
distribution of legislative powers. On the other hand, a statute of
the Parliament of Canada having the concurrence of “the legislatures
of at least two-thirds of the provinces representing at least fifty
per cent of the population of Canada” was thought to be enough to
effect change in “the principles of proportionate representation of
the provinces in the House of Commons prescribed by the Constitution
of Canada.” 5 Then, as a final example, when it came to amending
the constitution of a province, “except as regards the office of Lieu-
tenant-Governor”, the Formu.a provides that a simple statute of the
provincial legislature concerned would be effective (as indeed it has
been since 1867).11 Thus, for different sub-divisions of constitutional
4 Sections 1 and 2 of the Fulton-Favreau Formula.
5 Sections 1, 5 and 6 (g) of the Fulton-Favreau Formula.
6 Section 7 of the Fulton-Favreau Formula.
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matters we go all the way from extraordinary and rigid to ordinary
and flexible processes of change in the proposals made.
The main point to be grasped here is that the technical scheme
of Part I of the Fulton-Favreau Formula is very ingenious and very
good. Discriminating between different types of constitutional matters
for purposes of assigning them to different modes of amendment in
some way much like this is essential for any complete scheme of con-
stitutional amendment. Moreover, the careful reader of the Formula
will note that this is done there in such a way as to indicate the
priorities between the several clauses in Part I in the event of over-
lapping of the concepts they contain. The realities and difficulties of
later interpretation have been carefully kept in mind. In any event,
to continue with the main point, there will always be some things so
basic and so much the concern of all that only unanimity is appropri-
ate to effect change. Also there wiMl always be some other things less
basic but still very important and affecting all, so that something
like the rule of two-thirds and fifty percent is appropriate as an
extraordinary process for change. And of course there will be still
other constitutional matters that are appropriate for change within
a single province simply by a statute of that province, or at the
federal level by a simple statute of Parliament. These then are ex-
amp’es of discriminations made in Part I of the Formula, and, as
a matter of technical system and good drafting, a scheme with this
multiplicity of discriminations seems almost inevitable. It seems to
arise almost necessarily out of the history of our constitutional life
in Canada. As the White Paper shows, this range of distinctions
has been developed in the course of several official constitutional
enquiries and conferences over a long period of years.7
It must be remembered of course that no draftsman can ever
make everything in a complex procedural statute absolutely clear.
Not everything is clear about the interpretation of the Fulton-Fa-
vreau Formula, as some critics of it have shown.s But every draftsman
7 The White Paper, chapters II & III.
8 Not all these arguments are convincing. For example, Section 2 of the Formula
says that “No law… affecting any provision of the Constitution of Canada
relating to… the powers of a legislature of a province to make laws.., shall
come into force unless it is concurred in by the legislatures of all the provinces”.
It has been argued that this means provincial legislative powers cannot be reduced
without the unanimous concurrence of the provincial legislatures with the statute
of Parliament concerned, whereas if provincial powers were being increased (and
ipso facto federal powers reduced) this could be done by the concurrence with
Parliament of the legislatures of only two-thirds of the provinces having at least
fifty per cent of the country’s population. The key word here is ‘affecting’, and
I can see no reason for restricting the meaning of ‘affecting’ to ‘reducing’. The
No. 4] PROCESS OF CONSTITUTIONAL AMENDMENT
375
reaches the point in such cases where the resolution of residual un-
certainties is best left to be worked out by interpretation in the courts,
and, in my view, so far as technical clarity is concerned, that point
has pretty well been reached in the 1964 Formula.
Nevertheless, in praising the system and technique of the drafting
of Part I of the Fulton-Favreau Formula, I am not necessarily up-
holding the substance of what the Formula does in every respect.
I would agree in-principe, for example, that too many constitutional
matters are under the rule of unanimity and too few under the more
flexible rule of consent by two-thirds of the provinces comprising
fifty per cent of the country’s population’. Whether one should accept
the present proposed Formula in spite of this imperfection, because
there is some greater good to be served by so doing, is a question
to be discussed in Part III of this essay. The point now to be made
is that, if we do decide to change the substance of what Part I of
the Formula proposes, we should not throw out the technical baby
with the substantial bath water. Those who say that Part I of the
Fulton-Favreau Formula is an unnecessarily complex piece of draft-
ing seem not to have understood that the complications genuinely
reflect the difficu’ties of the problems being confronted. The meaning
of the category ‘constitutional law’ is very complex and wide-ranging
as a matter of systematic definition, hence any comprehensive scheme
of amendment must have an appropriate range of distinctions linked
to different procedures, if in this respect the law of the constitution
is to meet the needs of the country. In other words, a scheme that
differs in important ways in substance from Part I of the Fulton-
Favreau Formula is likely still to be just as complex in form. Indeed,
if the new draftsman is as wise as the old one, the form will be much
the same.
Earlier I stated the view that the Fulton-Favreau Formula puts
too many constitutional matters under the rule of unanimity but
that perhaps this imperfection should be accepted if some greater
good can be served thereby. This relates to bringing the Canadian
Constitution home, the subject of the next part of this essay.
natural meaning of the word ‘affecting’ is ‘making any change’. The corresponding
word in the official French version is ‘touchant’, and the same comment applies.
Personally I think the Formula is clear to the effect that, whether one is increasing
federal legislative powers at the expense of the provinces, or increasing provincial
legislative powers at the expense of the federal authority, there is only one way
to do it. The rule of unanimity in Section 2 of the Formula must be followed.
Either way you are ‘affecting’ provincial legislative powers. In any event, there
may be re-arrangement of powers between the federal and provincial levels of
government that could not easily be classified as increases for one or reductions
for the other.
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III. The Present Position respecting Amendment of the Constitution
of Canada: How to Bring the Constitution Home.
The important part of our constitution respecting current issues
of amendment and patriation is given in certain critical sections of
the B.N.A. Acts.9 The problems involved may be adequately considered
if discussion here is confined to two types of constitutional matters;
(1) the -distribution of legislative powers between the Parliament of
Canada and the legislatures of the provinces, and (2) some elements
of the structure or composition of the Parliament of Canada. In these
respects the old supremacy of the Imperial Parliament at Westminster
has been formal’y preserved by Section 7 of the Statute of West-
mninster, 1931,10 though the same statute declared the abolition of
that supremacy in all other respects for Canada. And even regarding
the reserved matters of amendment, the preamble to the Statute of
Westminster and the declarations by Imperial Conferences to which
it refers plainly imply that complete autonomy was to be Canada’s
for the asking, if and when the various governments of federated
Canada could agree among themselves on the necessary domestic
procedures for such amendments. There has not yet been agreement,
so we must ask – What is the present position?
After reviewing the procedures leading to amendments of the
B.N.A. Act in the period 1867-1964, the White Paper summarizes
the basic constitutional position in four propositions which may be
briefly expressed as follows.”
(1) A!though an Act of the United Kingdom Parliament is ne-
cessary to amend the B.N.A. Act, “such action is taken only upon
formal request from Canada. No Act of the United Kingdom Parlia-
ment affecting Canada is therefore passed unless it is requested and
consented to by Canada. Conversely, every amendment requested by
Canada in the past has been enacted.”
(2) The request must take the form of a joint address of the
Canadian House of Commons and Senate to the Crown praying that
the appropriate measure be laid before the Parliament of the United
Kingdom.
(3) “[T]he Canadian Parliament will not request an amendment
directly affecting federal-provincial relationships without prior con-
sultation and agreement with the provinces.”
9 See the White Paper, Appendix 1, starting at” page 54 for ‘A Consolidation
of The British North America Acts, 1867 to 1964’.
1022 George V, Chapter 4 (U.K.).
“lThe White Paper, pp. 15-16.
No. 4] PROCESS OF CONSTITUTIONAL AMENDMENT
377
(4) “[N]o amendment to Canada’s Constitution will be made
by the British Parliament merely upon the request of a Canadian
province.” The British Government will not move the British Parlia-
ment to act except on a request originating with the Federal Govern-
ment of Canada.
Such is the existing method of constitutional amendment for
matters still specially entrenched in the B.N.A. Acts. Thus we see
that our present basic law of amendment has been made by long-
standing official precedent, custom and practice modifying
the
constitutional law of the old British Empire in the manner just
indicated. Anyone who doubts the validity and force of such custom,
convention and practice should read again the preamble to the
Statute of Westminster, 1931, which makes it clear that even that
statute purports to be declaratory of a basic ‘constitutional position’
already ‘estab’isbed’ by other means than statute –
e.g. the agreed
declarations or conventions of Imperial Conferences.
In any event, the result is that, in critical respects, amendment
of the Canadian Constitution in the matters indicated consists in
some steps that must be taken in Canada followed by others that must
be taken in the United Kingdom. While the latter are purely formal
now, nevertheless they represent a respect in which the Canadian
Constitution is not now and never has been at home. Bringing it
home then means to make into law a set of amending procedures
that can be carried out in Canada entirely by Canadian governments,
legislative bodies, or electorates, acting severally or in combinations
of some kind. If we are to have legitimate as distinct from revo-
lutionary change, then the present method of amendment focussed
on London should be followed one last time to institute a new do-
mestic method for amendment focussed on Canada. Rules made by
custom and convention seem already to have done as much as they
can do to bring the Canadian Constitution home to Canada. What
we now need is to acquire at one stroke a complete and precise set
of domestic procedures for amending the Canadian Constitution. The
slow and piece-meal development characteristic of custom and preced-
ent as law-making processes is not now appropriate for this task.
The only proper and legitimate way to obtain the complex scheme
needed in one operation at the moment of our own choosing is by a
statute of the United Kingdom Parliament enacted in response to the
existing request and consent rules as the last statute for Canada of
that Parliament. This would in effect repeal Section 7 of the Statute
of Westminster and make Canadian legislative autonomy formally
complete in the last area where up to this point it has been formally
reserved. This is what successive Federal Governments at Ottawa
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have attempted to do by agreement with the provinces. This is what
the Pearson Government has attempted to do with the Fulton-Favreau
Formula. It should be noted that Section 10 of the Formula, the
so-called renunciation clause (from the point of view of the Parlia-
ment of the United Kingdom), would terminate for all purposes the
request and consent procedure as a means of putting British statutes
into force in Canada.
This brings me to my basic point about the merit of the Fulton-
Favreau Formula as a means of bringing the constitution home. It is
true that the Formula is rigid in that it applies the rule of unanimity
to the whole range of the distribution of legislative powers between
Parliament and the provincial legislatures. Nevertheless, we are under
the rule of unanimity now in this respect by virtue of the existing
request and consent rules. All we have to do to bring the constitution
home is to substitute a domestic rule of unanimity for one focussed
on London. If we are stuck with the rue of unanimity anyway for
the present, and apparently we are, why not do this? It is embarrass-
ing for the British and humiliating for Canadians to maintain any
longer these obsolete and incongruous formal steps of requesting the
British Parliament to act for us. Accordingly, my view is that we
should use the Fulton-Favreau Formula as a means of bringing the
constitution home. Then later, under the Formula, if we can get
unanimous agreement, we can modify the scope of the Formula’s
rule of unanimity and place more matters under the rule permitting
change by the concurrence with Parliament of at least two-thirds of
the provinces comprising at least fifty per cent of the country’s
population.
The opponents of the Fulton-Favreau Formula as a means of
bringing the constitution home make strange companions. On the
one hand is a group who favour stronger powers at the centre for
Parliament and who fear that the rule of unanimity would prevent
this being brought about by amendment now or in the feature even
though the need for it was very great. On the other hand is a group,
particularly strong in the Province of Quebec, who want greater
powers assigned to the provinces, or at least to the Province of Quebec,
and who fear that the rule of unanimity would prevent such changes
by amendment now or in the future. But, the point is that we are
under the rule of unanimity anyway, and neither of these groups is
worse off if the requirement is embodied in a domestic procedure
rather than in one that takes us to London.
With all due respect to both groups of opponents of the Fulton-
Favreau Formula, it does seem that some of them must be harbouring
the hope that there might be circumstances in which they could
No. 4] PROCESS OF CONSTITUTIONAL AMENDMENT
379
persuade the British Government and Parliament to amend the Con-
stitution of Canada respecting the distribution of legislative powers
in disregard of the convention requiring unanimous consent of the
provinces before the .Canadian Parliament requests such an amend-
ment. I do not think the present convention permits the British Govern-
ment and British Parliament to override any provincial dissent in this
type of constitutional matter. In the face of any provincial dissent,
I think the present convention requires that the British Government
and Parliament do nothing, simply regarding -the request from the
Canadian Parliament in these circumstances as improper, that is as
unconstitutional or illegal. It would be an intolerable reversion to
colonial status to suggest that the British Government or Parliament
could be or shou.d be involved in any substantial way in decision-
making as to whether or not -to modify the federal distribution of
legislative powers in Canada. If they were asked to override provincial
-dissents in this type of matter, they would be substantially involved.
To repeat, we should use the Fulton-Favreau Formula as the means
to bring the constitution home. Ohce we have it home on these terms,
the Formula itself contains the procedures whereby its own undue
rigidity could be modified if Canadians themselves could reach the
point where the Parliament of Canada and the legislatures of the
provinces were agreed about how to do it. If we cannot reach that
point, we are going to have to rest upon the status quo anyway.
We may turn now -to another point that should be made concerning
the merit of the Fulton-Favreau Formula. So far, the argument has
proceeded in relation to amendments or proposed amendments to the
federal distribution of legislative powers. But there is another im-
portant type of -amendment that has figured in federal-provincial
relations. I refer to -the composition of Parliament as an institution
–
as our central legislative body. For example an amendment of the
B.N.A. Act was required to re-adjust representation in the House of
Commons, that is to change the system whereby each province was
given its quota of members in proportion to its population. 12 Between
1867 and 1949, such amendments were secured by an Act of the
British Parliament in response to a joint address from the Canadian
Pariament. As the convention developed in this class of matter,
provincial consents were not necessary and the provinces were not
consulted. In effect, then, a Federal Government at Ottawa could
obtain this type of amendment by its own decisions alone. In 1949,
without consulting the provinces, the Federal Government moved the
12 The White Paper, p. 13, items (8) and (9).
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Parliament of Canada to request an amendment of the B.N.A. Act
which provided in effect that, in all cases appropriate for use of the
joint address procedure without provincial consent, changes in the
Constitution of Canada could be made by an ordinary statute of the
Parliament of Canada. The British Parliament passed the amendment
as requested, 13 and a new class (1) of Section 91 of the B.N.A. Act
was thereby enacted. It states that the legislative authority of the
Parliament of Canada includes:
The amendment from time to time of the Constitution of Canada, except as
regards matters coming within the classes of subjects by this Act assigned
exclusively to the Legislatures of the provinces, or as regards rights or
privileges by this or any other Constitutional Act granted or secured to
the Legislature or the Government of a province, or to any class of persons
with respect to schools or as regards the use of the. English or the French
language or as regards the requirements that there shall be a session of the
Parliament of Canada at least once each year, and that no House of
Commons shall continue for more than five years from the day of the
return of the Writs for choosing the House: provided, however, that a House
of Commons may in time of real or apprehended war, invasion or in-
surrection be continued by the Parliament of Canada if such continuation is
not opposed by the votes of more than one-third of the members of
such House.
An example of the use of this new power occurred in 1952 when
the Parliament of Canada enacted a statute providing a new section 51
of the B.N.A. Act respecting the provincial quotas by population
for members in the House of Commons. 14 More than one provincial
government had protested that the 1949 amendment went too far
and that the provinces did have a real interest in the composition
of the House of Commons and matters of like nature. Hence the
provinces contended that the power of change should not rest with
the Canadian Parliament alone. Prime Minister St. Laurent promised
that, if the federal and provincial governments could agree on over-all
domestic amending procedures, federal powers in this respect could
be re-written somewhat in an effort to meet the objections.’5 This
was actually accomplished some years later in the Fulton-Favreau
Formula produced by the Federal-Provincial Conferences of 1964.
Section 12 of Part II of the Formula would repeal class (1) of
Section 91 of the B.N.A. Act, as enacted in 1949, and substitute for
it Section 6 of Part I of the Formula. The latter section waters down
very considerably the powers given the Parliament of Canada in
1949. For example, a change in “the principles of proportionate
13See footnote (9).
14 The BN.A. Act, 1952, R.S.C. 1952, c. 304.
15 The White Paper, p. 25.
No. 41 PROCESS OF .CONSTITUTIONAL AMENDMENT
381
representation of the provinces in the House of Commons” would
require under the Formula a statute of the Parliament of Canada
followed by -the concurrence of at least two-thirds of the provinces
having at least fifty per cent of the population of the country. As
stated earlier, the 1949 statutory powers of the Canadian Parliament
were essentially the same as those -the Canadian Parliament had
between 1867 and 1949 by virtue of joint addresses not requiring
consultation with the provinces. The substance of power and decision-
making did not change in 1949, only the form of its exercise. Hence
Section 6 of the 1964 Formula does embody a reduction of federal
power in relation to 1867 and 1949. It represents a major concession
by the Federal Government to the provinces, no doubt in an effort
to win their agreement to the over-all Formula. The Federal Govern-
ment gets little credit for this from anyone, when dn fact it deserves
a great deal of credit for seeking to meet provincial complaints in
this reasonable way.
Strangely enough though, Section 9 of Part I of the 1964 Formula
seems designed to obscure what is really happening in this respect.
Section 9 says:
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.
This is technically true of Part I of the Formula, but is not true
of the over-all effect of the Formula as soon as one reads Section 12,
the first section of Part. II. (Section 12 repeals class (1) of Section
91 of the B.N.A. Act as enacted in 1949.) The White Paper carefully
refrains from explaining that the combined effect of Sections 6 and
12 of the Formula is -to negate section 9 of the Formula in this
respect. Perhaps section 9 of the Formula is an attempt to placate
the more extreme partisans of strong central power. If so, it doesn’t
quite come off. Anyway, Section 9 should simply be dropped from
the Formula and Section 12 should be included in Part I where it
belongs.
To recapitulate then, I am in favour of enactment of the Fulton-
Favreau Formula now as the best means to bring the Constitution
of Canada home. I am not opposed to considerable change in the
substance of the Formula either now or later, as I have indicated,
provided the necessary unanimous consent can be obtained now or
later. Nevertheless, there is no prejudice to anyone in using the
Formula as it stands as the means to bring the constitution home.
This is clearly the best way, but it is not perhaps the only way in
theory. Theoretically the device of a special constituent assembly
could be used to bring the constitution home, and this will now be
briefly examined.
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A constituent assembly, as I understand it, would be an extra-
ordinary representative body set up by the constitution and itself
authorized to change the constitution by meeting prescribed con-
ditions as to procedure and voting. Those who advocate such an
assembly usually have in mind re-writing the Constitution of Canada
in a major way. No doubt such a body could in theory be instituted
for Canada if it were authorized by a statute of the British Parlia-
ment passed in response to a joint address of the Parliament of
Canada in which all the provinces had concurred. This would be the
only legitimate or constitutional way such an extraordinary body
could be set up in Canada. If this were to be done, there would have
to be prior federal-provincial agreement on a wide range of things.
A number of questions would have to be answered about membership
of the proposed constituent assembly, about how it was to proceed
and what it could do. The following list of such questions is suggestive.
(1) Who would select and accredit delegates?
(2) Who would instruct delegates – what discretion would they
have?
(3) What kind of a majority would be required to pass or adopt
a proposed new constitutional clause at the assembly?
(4) Who would be bound by the passing of a clause in the as-
sembly sessions?
(5) What ratifications, if any, would be required for clauses
passed in the assembly sessions?
(6) Would a dissenting minority be bound by majority votes or
majority ratifications?
Simply listing these problems means to me that a constituent as-
sembly is simply not a practical possibility at this time. Nor would
it be desirable if it were practical. We do not need a major re-writing
of the Canadian Constitution at -all. The existing constitution, as
developed by judicial precedent and official practice, has served
Canadians well for ,one hundred years and does not need wholesale
change to continue to serve us well. On the other hand we must always
be ready to study the need for certain particular changes by amend-
ment here and there to meet the needs of new conditions. If a proper
case for such change can be made in some specific respect, then we
should give that change effect through the operation of a permanent
and completely Canadian amending procedure like the Fulton-Favreau
a procedure that arises naturally out of our history and
Formula –
traditions, and which uses our existing legislative and executive
institutions of government. Public debate and discussion can take
place in legislative and parliamentary sessions, before parliamentary
No. 4] PROCESS OF CONSTITUTIONAL AMENDMENT
383
committees, and in other ways congenial -to our great inheritance of
English parliamentary institutions and responsible government. There
are for instance many types of conferences that could be held on
constitutional issues. These would not of course be constituent as-
semblies, but rather gatherings designed to inform, to educate, to
advise or to make recommendations. They would be concerned with
helping to form public opinion and to reach significant consensus
among officials and citizens about specific items of desirable con-
stitutional change. I agree with what the Prime Minister of Ontario,
the Honourable Mr. Robarts, said recently on this subject in a public
address to a group of business men in Montreal :16
It also is time in our country that we sat down and examined, apart from
the fiscal problems which have dominated discussions in recent years, some
of the constitutional difficulties that arise from time to time. I have suggested
a series of conferences at which we could meet together to discover and
discuss areas of agreement and disagreement, of accommodation and of
compromise, Province to Province. We would discuss not only constitutional
questions hut would explore the cultural and social problems of our changing
world. I believe that -much can be done to relieve the stresses and strains
which have affected Canada without necessarily changing the British
North America Act. If it is found that some sections should be changed,
then let us change them; where no change is either desirable or necessary,
let us leave it unaltered. I see no need for a new Constitution, only the
possibility of some adjustments to a Constitution that can readily be amended
to serve us well in the future.
I believe this pragmatic approach is the right one, and indeed the
only practical one. This is the way to maintain a proper balance
from time to -time between constitutional stability and constitutional
change, taking due -account of the need for central power on the one
hand and provincial -autonomy on the other. So far as these adjust-
ments call for specific constitutional amendments from time to time,
we should be able to ‘look to purely Canadian procedures appropriate
for the purpose.
16 “Remarks by The Honourable John Robarts, Prime Minister of Ontario, To
The Advertising And Sales Executives’ Club of Montreal, Montreal, Wednesday,
text as released by the office of the
November 23rd, 1966.” (Mimeographed
Prime Minister of Ontario).
