From: fwbent@watmsg.uwaterloo.ca (Fred Bent)
Subject: Amending Formula
Keywords: constitution
Organization: University of Waterloo
Distribution: can
Date: Fri, 9 Oct 1992 16:57:25 GMT



This issue has not been discussed that much, although there
has been some discussion about the 25% House of Commons
"floor" for Quebec, among other things. :-)

Also, several people have complained that the actuals power of the
Senate might render it ineffective.

My concern is that once the Charlottetown Accord is adopted,
it will be very hard to change/fix unless everyone agrees.

Relevant legal stuff:

From the Constitution Act, 1982:

  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
  resolution of the Senate and House of Commons and 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 in 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.

  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 in 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) notwitstanding any other law or practice, the establishment of
    new provinces.

    (2) Subsection 38(2) to (4) do not apply in respect to amendments
  in relation to matters referred to in subsection (1).

  38. (1) An amendment to the Constitution of Canada may be made by
  proclimation issued by the Governor General under the Great Seal
  of Canada wher 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 aggregate, according
    to the then latest general census, at least fifty per cent
    of the population of all the provinces.

    (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).

    (3) An amendment referred to in subsection (2) shall not have
  effect in a province the legislative assembly og which has
  expressed its dissent therto by resolution supported by a
  majority of it 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.

    (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.

------

From the Consensus Report On the Constitution Final Text:

  57. Changes to National Institutions

    Amendments to provisions of the Constitution related to the Senate
  should require unanimous agreement of Parliment and the provincial
  legislatures, once the current set of amendments related to Senate
  reform has come into effect.  Future amendments affecting the
  House of Commons, includings the Quebec's guarantee of at least 
  25 per cent of the seats in the House of Commons, and amendments
  which can now be made under Section 42 should also require
  unanimity.

    Sections 41 and 42 of the CONSTITUTION ACT, 1982 should be amended
  so that the nomination and appointment process of Supreme Court
  judges would remain subject to the general (7/50) amending procedure.
  All other matters related to the Supreme Court, including its
  entrenchment, its role as the general court of appeal and its
  composition, would be matters requiring unanimity.

------  
  
Is it me, or does this look like a potential for:

  a) Constitutional reform grid lock; and
  b) Constitutional blackmail.

Maybe I am being too cynical....

Interesting questions for you (and me to ponder):

Q: Why is section 33 of the Constitution Act, 1982 (the notwithstanding
clause) not being repealed?  Supposed to be resolved later.

Q: Why have a silly method like joint sittings to resolve disputes
between the House of Commons (337) and the Senate (62)?  Effective?

Q: Why is there no method to "recall" a Member of Parliament, or a
Senator?

Q: Will the Senate have the same term as the House of Commons?  If so,
will there be joint elections?

Well, still undecided and waiting for the legal text....

--
Frederick Bent
fwbent@plg.uwaterloo.ca
Newsgroups: can.politics