Constitutional Conventions and Senate Reform

Revue québécoise de droit constitutionnel, Vol. 5 (2013) p. 107

17 Pages Posted: 26 Sep 2013 Last revised: 30 Nov 2013

Date Written: September 25, 2013

Abstract

Constitutional conventions are of central importance to the operation of the Canadian constitution; the constitution cannot be understood without reference to them. Yet their effect on the constitutionality of the federal government’s successive proposals for reforming the Senate, which aim at making most or all senators elected rather than appointed at the Prime Minister’s discretion as they are now, has not received much attention.

Constitutional conventions are essential to an assessment of the constitutionality of the proposed Senate reform. Although the government’s proposal does not affect formal constitutional provisions, it would change the actual operation of the constitution by subverting the conventions which make the prime minister responsible for senatorial appointments and require the unelected Senate to yield to the House of Commons.

We argue that he amending formula of the Constitution Act, 1982, must be interpreted to take these conventions into account. Conventions are underpinned by constitutional principles and are an essential part of the context in which constitutional text must be understood. For the constitution to be a "living tree," its interpretation must, so far as possible, be consistent with the way it is actually lived. The "method of selecting Senators" and the "powers of the Senate," which par. 42(1)(b) of the Constitution Act, 1982, protects from unilateral amendment by Parliament are not those that exist only on paper, but those of the living constitution. Because the government’s Senate reform proposal would change them, it can only be enacted under par. 42(1)(b). In its present form, it is unconstitutional.

Keywords: Canada, Senate, Senate reform, constitutional conventions, constitutional law, constitutional interpretation, bicameralism

Suggested Citation

Gelinas, Fabien and Sirota, Leonid, Constitutional Conventions and Senate Reform (September 25, 2013). Revue québécoise de droit constitutionnel, Vol. 5 (2013) p. 107. Available at SSRN: https://ssrn.com/abstract=2330805

Fabien Gelinas

McGill University ( email )

3644 Peel Street
Montreal, Quebec H3A1W9
Canada

Leonid Sirota (Contact Author)

AUT Law School ( email )

AUT City Campus
Private Bag 92006
Auckland, 1142
New Zealand
+64 9 921 9999 ext 5531 (Phone)

HOME PAGE: http://doubleaspect.blog

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