Legality, Legitimacy and Constitutional Amendment in Canada

Abstract

It is accepted that Canada’s Constitution is almost impossible to amend, and that this amendment rigidity stems from the Constitution’s patriation in 1982 and two failed reform initiatives, the Meech Lake and Charlottetown Accords. The high-stakes drama of 1982, threat of Quebec separation and denouement of the post-patriation Accords were events of singular urgency which have dominated the literature and consigned the longer history of amendment to the background. This article provides a corrective which explores Canada’s two uneven periods of constitutional change – before and after textual rules – and in doing so theorizes that rich insights into the riddles of Canada’s amendment constitutionalism are found in the interface between the legality or formality of amendment, and its legitimacy or acceptance. The article explains how the legality and legitimacy of amendment failed to align prior to patriation – when amendment was governed by a concept of statutory legality – and after patriation, when rules of constitutional legality were adopted. Though the textual amendment rules are admittedly rigid, the role legitimacy plays in Canada’s amendment rigidity cannot be overlooked. As Canada approaches its sesquicentennial anniversary in 2017 there is lingering uncertainty on what is required to align the legitimacy of constitutional change with the formal criteria of amendment legality.

Keywords: Constitutional amendment – Canadian constitutional amendment before and after patriation – legality and legitimacy in amendment constitutionalism – statutory and constitutional legality – how a lack of constitutional legality undermined the legitimacy of amendments to the Canadian Constitution