Constitution Act, 1982/Part V

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Constitution Act, 1982
Part V: Procedure for Amending Constitution of Canada[1]

Contents[edit]

Part V: Procedure for Amending Constitution of Canada

38.
(1) General procedure for amending Constitution of Canada.
(2) Majority of members.
(3) Expression of dissent.
(4) Revocation of dissent.
39.
(1) Restriction on proclamation.
(2) Idem.
40. Compensation.
41. Amendment by unanimous consent.
42.
(1) Amendment by general procedure.
(2) Exception.
43. Amendment of provisions relating to some but not all provinces.
44. Amendments by Parliament.
45. Amendments by provincial legislatures.
46.
(1) Initiation of amendment procedures.
(2) Revocation of authorization.
47.
(1) Amendments without Senate resolution.
(2) Computation of period.
48. Advice to issue proclamation.
49. Constitutional conference.

Notes



V: Procedure for Amending Constitution of Canada


General procedure for amending Constitution of Canada.
38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.
Majority of members.
(2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).
Expression of dissent.
(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.
Revocation of dissent.
(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.
Restriction on proclamation.
39. (1) A proclamation shall not be issued under subsection 38(1) before the expiration of one year from the adoption of the resolution initiating the amendment procedure thereunder, unless the legislative assembly of each province has previously adopted a resolution of assent or dissent.
Idem.
(2) A proclamation shall not be issued under subsection 38(1) after the expiration of three years from the adoption of the resolution initiating the amendment procedure thereunder.
Compensation.
40. Where an amendment is made under subsection 38(1) that transfers provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply.
Amendment by unanimous consent.
41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;
(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;
(c) subject to section 43, the use of the English or the French language;
(d) the composition of the Supreme Court of Canada; and
(e) an amendment to this Part.
Amendment by general procedure.
42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):
(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;
(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
(d) subject to paragraph 41(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories; and
(f) notwithstanding any other law or practice, the establishment of new provinces.
Exception.
(2) Subsections 38(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1).
Amendment of provisions relating to some but not all provinces.
43. An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including
(a) any alteration to boundaries between provinces, and
(b) any amendment to any provision that relates to the use of the English or the French language within a province,
may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.
Amendments by Parliament.
44. Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.
Amendments by provincial legislatures.
45. Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.
Initiation of amendment procedures.
46. (1) The procedures for amendment under sections 38, 41, 42 and 43 may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province.
Revocation of authorization.
(2) A resolution of assent made for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it.
Amendments without Senate resolution.
47. (1) An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42 or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.
Computation of period.
(2) Any period when Parliament is prorogued or dissolved shall not be counted in computing the one hundred and eighty day period referred to in subsection (1).
Advice to issue proclamation.
48. The Queen's Privy Council for Canada shall advise the Governor General to issue a proclamation under this Part forthwith on the adoption of the resolutions required for an amendment made by proclamation under this Part.
Constitutional conference.
49. A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part.

Notes[edit]

  1. Prior to the enactment of Part V certain provisions of the Constitution of Canada and the provincial constitutions could be amended pursuant to the Constitution Act, 1867. See the footnotes to section 91, Class 1 and section 92, Class 1 thereof, supra. Other amendments to the Constitution could only be made by enactment of the Parliament of the United Kingdom.