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

dc.contributor.authorNewman, Warrenen
dc.contributor.departmentLawen
dc.contributor.supervisorWalters, Mark D.en
dc.contributor.supervisorMetcalf, Cherieen
dc.date.accessioned2019-10-02T22:19:29Z
dc.date.available2019-10-02T22:19:29Z
dc.degree.grantorQueen's University at Kingstonen
dc.description.abstractThis 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.en
dc.description.degreePhDen
dc.embargo.liftdate2024-09-30T20:10:23Z
dc.embargo.termsAs the examiners strongly recommended that the thesis be published, I would like to restrict the distribution of the thesis for the time being until I have the opportunity to discuss the matter with prospective publishers. My co-supervisors have agreed to the restriction.en
dc.identifier.urihttp://hdl.handle.net/1974/26699
dc.language.isoengen
dc.relation.ispartofseriesCanadian thesesen
dc.rightsQueen's University's Thesis/Dissertation Non-Exclusive License for Deposit to QSpace and Library and Archives Canadaen
dc.rightsProQuest PhD and Master's Theses International Dissemination Agreementen
dc.rightsIntellectual Property Guidelines at Queen's Universityen
dc.rightsCopying and Preserving Your Thesisen
dc.rightsThis publication is made available by the authority of the copyright owner solely for the purpose of private study and research and may not be copied or reproduced except as permitted by the copyright laws without written authority from the copyright owner.en
dc.subjectconstitutional lawen
dc.subjectconstitutional amendmenten
dc.subjectConstitution of Canadaen
dc.subjectPart V Constitution Act 1982en
dc.subjectconstitutional principlesen
dc.subjectconstitutional conventionsen
dc.subjectrule of lawen
dc.subjectprocedure for constitutional amendmenten
dc.titleThe 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, 1982en
dc.typethesisen
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