The Difficulty of Constitutional Amendment in Canada

Abstract

Scholars of comparative constitutional law would suggest that the United States Constitution is the world’s most difficult democratic constitution to change by formal amendment. But in this paper I suggest that the Constitution of Canada may be even harder to amend. Modern Canadian political history has proven the textual requirements for major constitutional amendment so far impossible to satisfy, yet the extraordinary difficulty of formal amendment in Canada derives equally from sources external to the Constitution’s formal amendment rules. Major constitutional amendment also requires conformity with extra-textual requirements imposed by Supreme Court decisions interpreting the Constitution of Canada, parliamentary and provincial as well as territorial statutes, and arguably also by constitutional conventions — additional rules that may well make major constitutional amendment impossible today in Canada. These as-yet underappreciated extra-textual sources of formal amendment difficulty raise important questions for Canadian constitutionalism, namely whether in making the Constitution virtually impossible to amend they weaken democracy and undermine the purpose of writtenness.

Keywords: Constitutional Amendment, Formal Amendment, Informal Amendment, Constitution of Canada, United States Constitutional, Amendment Difficulty, Constitutional Rigidity, Secession Reference, Senate Reference, Nadon Reference, Regional Veto Law, Clarity Act