Quote: Originally Posted by TenPenny
No that's fine, because you've just shown that a change to the constitution does not require a vote by the people; some provinces have Provincial legislation 'requiring' it, , so in reality, it's not a requirement.
Apparently more is required. It does require a vote by the people, who cares if it only applies to Alberta and BC.
A check into how it was taken away from the other Provinces is your part in this conversation.
Amending the Constitution
See also: Amendments to the Constitution of Canada (external - login to view)
Section 52(3) of the Constitution Act, 1982
says that constitutional amendments can only be made in accordance with the rules laid out in the Constitution itself. The purpose of this section was to entrench constitutional supremacy and remove the ability of legislators to amend the constitution using simple legislation.
The rules for amending Canada's constitution are quite dense. They are laid out in Part V of the Constitution Act, 1982
There are five different amendment formulas, each applicable to different types of amendments. These five formula are:
- The General Formula (the "7/50" procedure) - s. 38. The amendment must be passed by the House of Commons, the Senate, and at least two-thirds of the provincial legislatures representing at least 50% of the population. This covers any amendment procedure not covered more specifically in ss. 41, 43, 44 or 45. The general formula must be used for any of the six situations identified in s. 42.
- The Unanimity Procedure - s. 41. The amendment must be passed by the House of Commons, Senate, and all provincial legislatures.
- "Some-but-not-all Provinces" (or "bilateral" procedure) - s. 43. The amendment must be passed by the House of Commons, the Senate, and the legislative assemblies of those provinces that are affected by the amendment.
- Federal Parliament Alone (or "federal unilateral" procedure) - s. 44. The amendment must only be passed by the House of Commons and the Senate.
- Provincial Legislature Alone (or "provincial unilateral" procedure) - s. 45. The amendment must only be passed by the provincal legislature.
Various other sections of Part V lay out such things as compensation for opting out, when and how a province may opt out of a constitutional amendment, and time limits for achieving a constitutional amendment.
According to Section 52 of the Constitution Act, 1982, the Constitution of Canada is the "supreme law of Canada", and any law inconsistent with it is of no force or effect. This gives Canadian courts the power to strike down legislation. Though the laws will remain in the books until they are amended, after being struck down they cannot be enforced.
Before this provision, the British North America Act was the supreme law of Canada by virtue of s.4 of the Colonial Laws Validity Act, a British Imperial statute declaring that no colonial laws that violated an Imperial statute was valid. Since the British North America Act was an Imperial statute, any Canadian law violating the BNA Act was inoperative. There was no express provision giving the courts the power to decide that Canadian law violated the BNA Act and was therefore inoperative; up until 1982, that Court power was part of Canada's unwritten constitution.
Definition of the Constitution
Section 52(2) of the Constitution Act, 1982
defines the ?Constitution of Canada.? The Constitution of Canada is said to include:
(a) the Canada Act 1982
(which includes the Constitution Act, 1982
in Schedule B), (b) 30 Acts and Orders contained in the Schedule to the Constitution Act, 1982
, and (c) any amendments which may have been made to any of the instruments in the first two categories. Section 52(2), in addition to containing many Imperial Statutes, contains eight Canadian statutes, three of which created provinces, and five of which were amendments to the Constitution Act, 1867
The Canadian courts have reserved the right to add and entrench principles and conventions into the Constitution unilaterallly. Although a court's ability to recognize human rights not explicitly stated in a constitution is not particularly unusual, the Canadian situation is unique in that this ability extends to procedural issues not related to human rights.
In particular, in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) (external - login to view)
, the Supreme Court of Canada (external - login to view)
said that s. 52(2) was not an exhaustive listing of all that comprised the Constitution. The Court reserved the right to add unwritten principles to the Constitution, thereby entrenching them and granting them constitutional supremacy (in this case, they added parliamentary privilege to the Constitution). The Court did note, however, that the list of written documents was stagnant and could not be modified except for through the amending formulas.
Province of Alberta
CONSTITUTIONAL REFERENDUM ACT
Revised Statutes of Alberta 2000
Current as of January 1, 2002
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CONSTITUTIONAL REFERENDUM ACT
Table of Contents
1 Holding referendums
2 Referendum to precede constitutional change
3 Question to be asked
4 When referendum binding
5 Time of referendum
6 Application of Election Act
7 Application of Local Authorities Election Act
8 When councils to conduct vote
9 Results of referendum
12 National referendum
HER MAJESTY, by and with the advice and consent of the
Legislative Assembly of Alberta, enacts as follows:
1 The Lieutenant Governor in Council may order that a
referendum be held on any question relating to the Constitution of
Canada or relating to or arising out of a possible change to the
Constitution of Canada.
Referendum to precede constitutional change
2(1) The Lieutenant Governor in Council shall order the holding
of a referendum before a resolution authorizing an amendment to
the Constitution of Canada is voted on by the Legislative
Section 3 Chapter C-25
CONSTITUTIONAL REFERENDUM ACT
(2) The motion for the resolution may be introduced in the
Legislative Assembly before the referendum is held.
Question to be asked
3 The question or questions to be put to the electors at a
referendum shall be determined by a resolution of the Legislative
Assembly on the motion of a member of the Executive Council.
When referendum binding
4(1) If a majority of the ballots validly cast at a referendum vote
the same way on a question stated, the result is binding, within the
meaning of subsection (2), on the government that initiated the
(2) If the results of a referendum are binding, the government that
initiated the referendum shall, as soon as practicable, take any steps
within the competence of the Government of Alberta that it
considers necessary or advisable to implement the results of the
Time of referendum
5 An order under section 1 or 2 shall specify whether the
referendum is to be held
(a) in conjunction with a general election under the Election
(b) separately on a date provided in the order, or
(c) in conjunction with the general elections under the Local
Authorities Election Act.
Application of Election Act
6(1) If a referendum is to be held in conjunction with a general
election under the Election Act or separately on a date provided for
under section 5(b), the Election Act and the regulations under it
apply, with all necessary modifications, to the referendum except
as otherwise provided by the regulations under this Act.
(2) The persons eligible to vote at a referendum to which the
Election Act applies are the persons who would be eligible to vote
Section 7 Chapter C-25
CONSTITUTIONAL REFERENDUM ACT
at an election under the Election Act on the day the referendum is
Application of Local Authorities Election Act
7(1) If a referendum is to be held in conjunction with the general
elections under the Local Authorities Election Act, the Local
Authorities Election Act and the regulations under it apply, with all
necessary modifications, to the referendum except as otherwise
provided by the regulations under this Act.
(2) The persons eligible to vote at a referendum to which the Local
Authorities Election Act applies are the persons who would be
eligible to vote at an election under the Local Authorities Election
Act on the day the referendum is held.
When councils to conduct vote
8(1) When a referendum is to be held under the Local Authorities
Election Act, every council shall conduct the referendum of the
electors residing in the municipality, except as otherwise provided
in this section.
(2) The council shall conduct the referendum notwithstanding that
a general election under the Local Authorities Election Act is not
required in that municipality.
(3) If a council has entered into an agreement with one or more
elected authorities in the same area for the conduct of a general
election under the Local Authorities Election Act, the elected
authority that is responsible for the conduct of the general election
under the agreement shall conduct the referendum and has all the
rights, powers and duties of the council to conduct the referendum.
(4) The Minister of Municipal Affairs is responsible for
conducting a referendum of the electors residing in improvement
districts, special areas, Metis settlements, summer villages, Indian
reserves and national parks and for the purposes of the referendum
has all the rights, powers and duties of a council to conduct the
referendum, including the authority to appoint returning officers
and other election officers.
(5) The Minister of Municipal Affairs may enter into an agreement
(a) with any elected authority in the area or in an area
adjacent to an improvement district, special area, Metis
settlement, summer village, new town, Indian reserve or
national park, or
(b) with the advisory council of an improvement district or
the advisory committee of a special area, the settlement
council of a Metis settlement, the board of administrators
of a new town or the council of a summer village
to conduct the referendum on the Minister’s behalf, and the elected
authority, advisory council, advisory committee, settlement
council, board of administrators or council has authority to enter
into such an agreement.
(6) An elected authority, advisory council, advisory committee,
settlement council, board of administrators or council that enters
into an agreement under subsection (5) has all the rights, powers
and duties of the Minister of Municipal Affairs to conduct the
(7) In accordance with the regulations, payments must be made to
elected authorities and other bodies that conduct a referendum.
In this section, “council” and “elected authority” include the
council of the City of Lloydminster.
-22.25 s8;1994 cM-26.1 s642(12)
Results of referendum
9(1) The Chief Electoral Officer shall announce the results of a
referendum in accordance with the regulations.
(2) The Minister responsible for the administration of this Act
shall report the results of a referendum to the Legislative Assembly
as soon after they are known as practicable.
10 The Lieutenant Governor in Council may make regulations
(a) modifying the provisions of the Election Act and the Local
Authorities Election Act and the regulations under those
Acts to make them applicable to the requirements of a
referendum, including adding to and declaring any
provisions of those Acts and regulations to be or not to be
applicable to the referendum;
(b) prescribing the duties and powers of the Chief Electoral
Officer in connection with referendums;
(c) respecting amounts that are payable to elected authorities
and other bodies conducting a referendum under section
CONSTITUTIONAL REFERENDUM ACT
(d) prohibiting or regulating, for the purposes of campaigning
for or against any question put to the electors at a
(i) contributions that may be made to political parties,
persons and groups of persons, and
(ii) expenses that may be incurred by political parties,
persons and groups of persons;
(e) generally respecting any other matters and things relating
to the holding and conduct of a referendum that the
Lieutenant Governor in Council considers necessary to
carry out the intent of this Act.
11 The cost of conducting a referendum may be paid out of the
General Revenue Fund.
12 This Act does not apply to a particular proposal to amend the
Constitution of Canada if the Legislative Assembly, on the motion
of a member of the Executive Council, approves the substitution of
a referendum on that proposal held under the Referendum Act
(a) the question on the referendum under the Referendum Act
(Canada) must be acceptable to the Legislative Assembly,
(b) that referendum must be held before the resolution
authorizing the amendment to the Constitution of Canada
is voted on by the Legislative Assembly, and
(c) the result of that referendum, as determined by the
majority of ballots validly cast in Alberta, is binding on
the Government of Alberta, which shall, as soon as
practicable, take whatever steps within its competence
that it considers necessary or advisable to implement that
1992 c36 s2
Alberta Queen's Printer: Legislation PDF (external - login to view)