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APPENDIX D

PROPOSAL FOR A
GENERAL PROCEDURE TO AMEND
THE CONSTITUTION

drafted by a sub-committee of experts representing the federal and provincial Governments (New Brunswick not attending) in February and March 1936, pursuant to a resolution of the Dominion-Provincial Conference, 1935.

[Document obtained from a private source and unpublished as yet. See supra, pp. 246-9.]

The adoption of an address to His Majesty by the Senate and House of Commons of Canada requesting:

A.-An amendment to the British North America Act, 1867, by adding thereto as section 148, a section in the terms of the draft amending section which will be attached as a schedule to such address;

B.-An amendment to the Statute of Westminster repealing section 7 thereof and substituting a provision to the following effect:

"7.-(1) The Parliament of Canada shall have power to enact a federal Constitution for the Dominion of Canada upon the following conditions:

(a) Such Constitution shall contain, in revised and consolidated form, the provisions of the British North America Acts, 1867 to 1937, the Parliament of Canada Act, 1875, the Canada (Ontario Boundary) Act, 1889, the Canadian Speaker (Appointment of Deputy) Act, 1895, Session 2, and any Acts, Orders, Rules or Regulations passed or made thereunder or pursuant thereto creating a province or affecting the constitutional relationship between the Dominion of Canada and a province;

(b) Such Constitution shall contain procedure for amend­ment thereof which shall be in the same terms, mutatis mutandis, as section 148 of the British North America Act, 1867, as enacted by the British North America Act, 1937, copy of which section is annexed as a schedule hereto;

(c) Such Constitution shall not contain any provisions which will alter or change the constitutional relationships existing between the Dominion of Canada and the respective Provinces of Canada at the time of the enactment of such Constitution;

(d) Such Constitution shall not be held to operate as new law but shall be construed and have effect as a con­solidation and as declaratory of the law as contained in the British North America Acts, I867 to I937, the Parliament of Canada Act, 1875, the Canada (Ontario Boundary) Act, I889, the Canadian Speaker (Appointment of Deputy) Act, 1895, Session 2, and any Acts, Orders, Rules or Regulations passed or made thereunder or pursuant thereto as aforesaid.

(2) The Parliament of Canada shall have power to repeal, amend and alter such Constitution from time to time but only in accordance with the procedure for amendment referred to in paragraph (b) of subsection (I) of this section.

(3) The provisions of section two of this Act shall extend to laws made by any of the Provinces of Canada and to the powers of the legislatures of such Provinces.

(4) The powers conferred by sections two and three of this Act and subsection three of this section upon the Parliament of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or any of the legislatures of the Provinces respectively.

(5) The British North America Acts, 1867 to 1937, and the Parliament of Canada Act, 1875, the Canada (Ontario Boundary) Act, 1889, the Canadian Speaker (Appointment of Deputy) Act, 1895, Session 2, shall stand repealed on the coming into force of such Constitution."

SCHEDULE

DRAFT OF PROPOSED AMENDING SECTION
TO BE ADDED TO
THE BRITISH NORTH AMERICA ACT, 1867

"148. This Act may be amended from time to time but only in accordance with the following procedure:

(1) In all cases the amendment shall be initiated in the House of Commons by Resolution first recommended to that House by message of the Governor General in the Session in which such Resolution is proposed, preceding the introduction of a Bill, and

(a) If the amendment is of any matter, other than one referred to in paragraph (d) of this subsection, relating to Canada only or within sections 9 to 15 inclusive, 17, 18, 20, 23, except clause (G), 24, 30 to 40 inclusive, 44 to 50 in­clusive, 52 to 62 inclusive, 67, 101, 102, 103, 105, 106, 120, 131 or 146 of this Act; sections 2 and 4 of the British North America Act, 1871, section 1 of the British North America Act, 1886, or section 1 of the Canadian Speaker (Appoint­ment of Deputy) Act, 1895, Session 2, it will become effective upon such Bill being passed by the Parliament of Canada or as may be provided in such Bill;

(b) If the amendment is of any matter relating either to only one or more of the provinces or to Canada and one or more, but not all of the provinces and within sections 6, 7, 23, clause (6), 63, 64, 65, 66, 68 to 80 inclusive, 82 to 88 inclusive, 94, 97, 98, 114, 115, 116, 118, 124, 126, 129, 138, 143 or 144 of this Act; sections 3 and 6 of the British North America Act, 1871, section 2 of the Canada (Ontario Bound­ary) Act, 1889, or sections 1 and 2 of the British North America Act, 1930, it will become effective as provided in subsection (5) of this section upon such Bill being passed by the Parliament of Canada and if within one year from the date of such passing approval of the said amendment is obtained by the passing of a Resolution to that effect by the Legislative Assemblies of the province or provinces to which the matter relates;

(c) If the amendment is of any matter relating to Canada and att of the provinces and within the Preamble, sections 1 to 5 inclusive, 8, 16, 21, 22, 26, 27, 28, 29, 90, 91, 92 except clauses (12) and (14), 95, 96, 99, 100, 109, 111, 112, 117, 121, 125, 128, 132 or 147 of this Act, section 1 of the British North America Act, 1915, or the provisions of any statute affecting the Constitution not otherwise provided for herein, it will become effective as provided in subsection (5) of this section upon such Bill being passed by the Parliament of Canada, and if within one year from the date of such passing approval of the said amendment is obtained by the passing of a Resolution to that effect by the Legislative Assemblies in two-thirds of the provinces, representing at least 55% of the population of Canada as shown by the then last census;
Provided that if the amendment is in relation to matters coming within the classes of subjects enumerated in clauses (13) and (16) of section 92, or either of them, the Legis­lature of any province, the Legislative Assembly of which has not approved or is not deemed to have approved such amendment in accordance with the provisions of this section and which has expressed its dissent thereto by Resolution may continue exclusively to make laws in relation to the subject matters coming within such amendment; and pro­vided further that the Legislature of any such province may by statute rescind such dissent and express its approval of the amendment whereupon the amendment shall there­after apply to such province;

(d) If the amendment is of any matter within sections 51, 51A, 92, clauses (12) and (14), 93 or 133 of this Act it will become effective as provided in subsection (5) of this section upon such Bill being passed by the Parliament of Canada, and, if within one year from the date of such passing approval of the said amendment is obtained by the passing of a Resolution to that effect by the Legislative Assemblies in all the provinces.

(2) If the House of Commons passes any such Bill as provided for in paragraphs (a), (b) and (c) of subsection (1) of this section and the Senate rejects or fails to pass it or passes it with amendments to which the House of Commons will not agree , then the Governor General may during the same Session convene a joint sitting of the members of the Senate and House of Commons. The members present at any such joint sitting may deliberate and shall vote together upon such Bill and upon amendments, if any, which have been made therein by one House of Parliament and not agreed to by the other; and any such amendments which are affirmed by a majority of the total number of the members of the Senate and House of Commons present at such sitting shall be taken to have been carried, and if such Bill with the amendments, if any, is affirmed by a majority of the members of the Senate and House of Commons present at such sitting it shall be taken to have been duly passed by both Houses of Parliament.

(3) If a Resolution, as referred to in paragraph (c) of subsection (1) of this section is not introduced and finally dis­posed of by any one or more of the Legislative Assemblies within the time provided in the said paragraph, then such Legislative Assemblies shall be deemed to have approved such amendment.

(4) Upon the passing of such Bill as provided for in paragraphs (b), (c) and (d) of subsection (1) of this section by the Parliament of Canada, the Secretary of State shall within the fourteen days next following such passing forward a certified copy of such Bill, with the date of passing endorsed thereon, by registered mail, to the Government of each province concerned.

(5) Amendments in all cases requiring the approval of the Legislative Assemblies of the provinces or any of them shall come into force, after passing and approval thereof as herein­above provided for, on a date to be proclaimed by the Governor in Council and published in the Canada Gazette.

(6) In this section, unless the context otherwise requires, the expression, "Legislative Assembly" shall include, "House of Assembly" and "Legislative Council".

(7).-(i) This section except paragraph (a) of subsection (1), may only be amended in accordance with the procedure provided for the amending of any matter referred to in paragraph (d) of subsection (1) of this section;

(ii) Paragraph (a) of subsection (1) of this section may only be amended in accordance with the procedure provided therein for the amendment of any matter referred to in the said paragraph."

NOTE

It will be noted that the sections of the British North America Acts and other constitutional documents have been grouped under four headings-(a), (b), (c) and (d)-each heading containing its own method of amendment.

The sections under heading (a) which may be amended by the federal Parliament without reference to the provinces are as follows:

Section 9-15: 	Dealing with Executive powers.
	17: 	Constitution of the Parliament of Canada.
	18: 	Privileges of Houses of Parliament.
	20: 	Yearly Session.
	23: 	Qualifications of Senators. (Except Clause 6, which deals with qualifications of Senators in Quebec.)
	24: 	Summons of Senators.
	30: 	Resignation of Senators.
	31: 	Disqualification of Senators.
	32: 	Summons on vacancy in Senate.
	33: 	Questions as to qualifications and vacancies in Senate.
	34: 	Appointment of Speaker of Senate.
	35: 	Quorum of Senate.
	36: 	Voting in Senate.
	37: 	Constitution of House of Commons.
	38: 	Summoning House of Commons.
	39: 	Senators not to sit in Commons.
	40: 	Electoral districts of the four Provinces.
	44: 	Election of Speaker-House of Commons.
	45: 	Filling vacancy in office of Speaker.
	46: 	Speaker to preside.
	47: 	Provision in case of absence of Speaker.
	48: 	Quorum in Commons.
	49: 	Voting in Commons.
	50: 	Duration of Commons.
	52: 	Increase of number of Members of the House of Commons.
	53: 	Money votes. Appropriation and Tax Bills to originate in Commons.
	54: 	Recommendation of money votes.
	55: 	Royal Assent to Bills.
	56: 	Disallowance by Order-in-Council of Acts assented to by Governor-General.
Section 57: 	Signification of Queen's pleasure on bill re­served. 
	58: 	Appointment of Lieutenant-Governor of Provinces. 
	59: 	Tenure of office of Lieutenant-Governor. 
	60: 	Salaries of Lieutenant-Governors. 
	61: 	Oaths of Lieutenant-Governor. 
	62: 	Application of provisions referring to Lieu­tenant-Governor. 
	67: 	Administration in absence, etc., of Lieutenant­Governor. 
	101: 	General Court of Appeal and establishment of additional Courts for better administration of laws of Canada. 
	102: 	Creation of Consolidated Revenue Fund. 
	103: 	Expenses of Collection of Consolidated Revenue Fund. 
	105: 	Salary of Governor-General. 
	106: 	Appropriation for Public Service. 
	120: 	Form of payments under Act. 
	131: 	Appointment of new officers for the effectual execution of the Act. 
	146: 	Power to admit Provinces and Territory into the Union. 
	2, Act 1871: Parliament of Canada may establish new Provinces and provide for the constitu­tion thereof. 
	4, Act 1871: Parliament of Canada may legislate for any territory not included in a Province. 
	1, Act 1886: 	Parliament of Canada making pro­vision for representation of territories in Senate and House of Commons. 

The sections under heading (b) which may be amended by the federal Parliament and the province or provinces affected are as follows:

Section 6: 	Province of Ontario and Quebec constituted. 
	7: 	Nova Scotia and New Brunswick to have same limits as at passing of Act. 
Section 23(6): 	Real property qualification of Senator in Quebec.
	63: 	Appointment of Executive Council of Ontario and Quebec.
	64: 	Constitution of Executive authority of Nova Scotia and New Brunswick.
	65: 	Powers to be exercised by Lieutenant-Governor of Ontario or Quebec with advice or alone as the case requires.
	66: 	Application of provisions referring to Lieutenant-Governor-in-Council.
	68: 	Seats of Provincial Governments. Legislative powers.
	69: 	Providing for a Legislature for Ontario.
	70: 	Setting up 82 Electoral districts as set out in schedule for Ontario.
	71: 	Setting up Legislature and Legislative Council for Quebec.
	72: 	Constitution of Legislative Council of Quebec.
	73: 	Qualifications of Legislative Councillors for Quebec.
	74: 	Resignation and disqualification of a Legislative Councillor of Quebec.
	75: 	Procedure relating to vacancies in Legislative Council of Quebec.
	76: 	Questions as to vacancies or qualifications of Legislative Councillors of Quebec.
	77: 	Speaker of Legislative Council of Quebec.
	78: 	Quorum of Legislative Council of Quebec.
	79: 	Voting in Legislative Council.
	80: 	Constitution of Legislative Assembly of Quebec.
	82: 	Summoning of Legislative Assemblies, Ontario and Quebec.
	83: 	Restriction on election of holders of certain offices-Ontario and Quebec.
	84: 	Continuance of existing election laws.
	85: 	Duration of Legislative Assemblies, Ontario and Quebec.
Section 86: 	Yearly Session of Legislatures, Ontario and Quebec. 
	87: 	Provisions re election of Speaker, quorum, mode of voting, in Legislative Assemblies of Ontario and Quebec. 
	88: 	Constitution of Legislatures of Nova Scotia and New Brunswick. 
	94: 	Legislation by Parliament of Canada for Uniformity of laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, provision for such uniformity not to be effective in any Province until adopted and enacted as law by that Province. 
	97: 	Selection of Judges in Ontario, Nova Scotia and New Brunswick. 
	98: 	Selection of Judges in Quebec. 
	114: 	Limitation of debt of Nova Scotia. 
	115: 	Limitation of debt of New Brunswick. 
	116: 	Payment of interest to Nova Scotia and New Brunswick, re public debts. 
	118: 	Grants to Provinces. Specific amounts and annual grants per head of population, etc. 
	124: 	Levy of lumber dues in New Brunswick by New Brunswick. 
	126: 	Provincial Consolidated Revenue Fund. 
	129: 	Continuance of existing laws of Civil and Criminal Courts. Jurisdiction, officers, pow­ers and authorities, etc., existing at Union to continue in Ontario, Quebec, Nova Scotia and New Brunswick, subject to repeal, etc. 
	138: 	As to errors in names. Use of words "Upper Canada", Ontario," Lower Canada", Quebec. 
	143: 	Division of records. 
	144: 	Constitution of Townships in Quebec. 
	3, Act 1871: Alteration of limits of Provinces. 
	6, Act 1871: Limitation of powers of Parliament of Canada relating to Manitoba or any New Provinces hereinafter established. 
	Section 1, Act 1930: Dealing with resources of Saskatchewan and Alberta. 
	2, Act 1930: Dealing with resources of Saskatchewan and Alberta. 

The sections under heading (c) which may be amended under the 2/3 and 55% rule (with a special proviso as regards clauses (13) and (16) of section 92) are as follows:

 
Section 1: Short Title. 
	2: 	Application of provisions referring to the Queen. 
	3: 	Declaration of Union. 
	4: 	Construction of subsequent provisions of the Act. 
	5: 	Division of Canada into four Provinces. 
	8: 	Decennial Census. 
	16: 	Seat of Government at Ottawa. 
	21: 	Number of Senators. 
	22: 	Representation of Provinces in Senate. 
	26: 	Addition of Senators in certain cases. 
	27: 	Reduction of Senate to normal number. 
	28: 	Maximum number of Senators. 
	29: 	Tenure of place in Senate.
	90: 	Application to Legislatures re appropriation and tax bills, recommendation of money votes, disallowance of Acts, signification of pleasure on Bills reserved. 
	91: 	Legislative authority of the Parliament of Canada. 
	92: 	Exclusive powers of Provincial Legislatures except sections 12 and 14, being as follows:
		Section 12: The solemnization of marriage in the Province. 
			14: The administration of Justice in the Province, including the con­stitution, maintenance and organization of Provincial Courts bothof Civil andof Criminal juris­diction, and including procedure in Civil matters in those Courts. 
Section 95: 	Concurrent powers of legislation respecting agriculture, etc. 
	96: 	Appointment of Judges. 
	99: 	Tenure of office of Judges of Superior Courts. 
	100: 	Salaries, allowances and pensions of Judges. 
	109: 	Property in lands, mines, minerals and royal­ties belonging to the several Provinces at Union. 
	111: 	Canada to be liable for Provincial debts existing at Union. 
	112: 	Debts of Ontario and Quebec. Limited joint liability to Canada at Union. 
	117: 	Retention by Provinces of their respective public property, subject to the right of the Dominion to assume any lands for defence or fortification of the country. 
	121: 	Articles of the growth, produce or manufac­ture of any one of the Provinces to be admitted free into each of the others. 
	125: 	Exemption of lands belonging to Canada or to any Province from taxation. 
	128: 	Oath of allegiance, etc. 
	132: 	Treaty obligations. 
	147: 	Representation of Newfoundland and Prince Edward Island in the Senate. 
	1, Act 1915: Alteration of Constitution of the Senate.

The sections under heading (d) which may be amended only upon unanimous consent are as follows:

Section 51: 	Decennial readjustment of representation, limited by five rules set out in the Section. 
	51A: 	Notwithstanding anything in this Act a Province shall always be entitled to a number of Members in the House of Commons not less than the number of Senators representing such Province. B.N .A. Act amendment, 1915, sec. 2. 
	92 (12): 	The solemnization of marriage in the Province. 
	92 (14): 	The administration of Justice in the Province, including the Constitution, Main­tenance and Organization of Provincial Courts, both of Civil and of Criminal Juris­diction, and including Procedure in Civil Matters in those Courts. 
	93: 	Education. The exclusive right of Provinces to make laws in relation to Education, according to provisions therein set out. 
	133: Use of English and French language. 
Last HTML revision: 20 July, 2019.

William F. Maton