The Conventions of Constitutional Amendment in Canada

46 Pages Posted: 20 Dec 2015 Last revised: 14 Sep 2017

See all articles by Richard Albert

Richard Albert

University of Texas at Austin - School of Law; Yale University - Law School; University of Toronto - Faculty of Law; Universidad Externado de Colombia - Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: December 19, 2015

Abstract

Commentators have suggested that the unsuccessful national referendum to ratify the 1992 Charlottetown Accord has created an expectation of popular participation requiring national referendal consultation in major reforms to the Constitution of Canada. In this Article, I inquire whether federal political actors are bound by a constitutional convention of national referendal consultation for formal amendments to the basic structure of the Constitution of Canada. Drawing from the Supreme Court of Canada’s Patriation Reference, I suggest that we cannot know whether federal political actors are bound by such a convention until they are confronted with the question whether or not to hold a national referendum in connection with a change to the Constitution’s basic structure. I conclude by suggesting, perhaps counterintuitively, that layering a conventional requirement of national referendal consultation onto the existing requirements for formal amendments to the Constitution’s basic structure could well undermine democracy, despite our common association of referenda with democratic legitimacy. I suggest instead that a national referendum should be an alternative path, not an additional step, in constitutional amendment.

Keywords: Constitutional Amendment, Constitutional Conventions, Constitution of Canada, Referendum, Jennings Test, Patriation Reference, Secession Reference, Senate Reform Reference, Charlottetown Accord, Meech Lake Accord

JEL Classification: K00, K10, K19, K30, K39, K40, K49

Suggested Citation

Albert, Richard, The Conventions of Constitutional Amendment in Canada (December 19, 2015). 53 Osgoode Hall Law Journal 399 (2016), Boston College Law School Legal Studies Research Paper No. 387, Osgoode Legal Studies Research Paper No. 38/2016, Available at SSRN: https://ssrn.com/abstract=2705669

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

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HOME PAGE: http://law.utexas.edu/faculty/richard-albert

Yale University - Law School

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HOME PAGE: http://www.law.yale.edu

University of Toronto - Faculty of Law ( email )

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HOME PAGE: http://www.law.utoronto.ca

Universidad Externado de Colombia - Facultad de Derecho

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Colombia

HOME PAGE: http://https://www.uexternado.edu.co/derecho/

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

HOME PAGE: http://https://www.idc.ac.il/en/schools/law/pages/home.aspx

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