The Law of Constitutional Amendment and the Entrenchment and Reform of Canada’s Federal Institutional Architecture: the Purposes, Principles, Procedure and Practice governing the Operation of Part V of the Constitution Act, 1982

Abstract

This doctoral dissertation examines the central institutional architecture of the Constitution of Canada through the lens of the Constitution’s written amending procedures. The thesis proposes that the legal procedures set out in Part V of the Constitution Act, 1982 serve dual purposes, which are always in tension. The first purpose, which is ostensible on the face of the text, is to permit the amendment of the Constitution by following the relevant procedure. The second purpose, which underlies the structure of portions of the text, is generally to prevent the amendment of the Constitution except in cases of substantial federal and provincial consensus, and thus to protect certain key institutions, provisions or principles through deep constitutional entrenchment. The tension between these dual purposes is mediated by law, and reflects other normative tensions in the Constitution: between constitutional provisions and constitutional principles; constitutional law and constitutional conventions; legislative drafting and judicial interpretation; the written and the unwritten; between rigidity and flexibility. The dual purposes of the amending procedures were especially at play when the federal government introduced legislative measures such as fixed-date elections legislation, the Succession to the Throne Act, 2013, amendments to the Supreme Court Act, and several Senate reform bills. In striking down amendments to the Supreme Court Act and most of the Senate reform measures, the Supreme Court relied upon a structural understanding of the Constitution’s framework, or “internal architecture,” including the amending procedures, to limit the extent to which Parliament could reform such federal institutions. However, in upholding the validity of the Succession to the Throne Act and the fixed-date amendment to the Canada Elections Act (as well as previous legislative measures, such as the Official Languages Act), the courts have also demonstrated that legislation which is constitutional or quasi-constitutional in an organic sense (albeit not enjoying constitutional status) may implement and advance underlying constitutional principles without offending the complex, multilateral amending procedures. The dissertation is divided into two parts: the first examines the nature and structure of the Constitution of Canada and the broad sweep of the amending procedures; the second, their application to key federal institutions.