Hard Amendment Cases in Canada
"Hard Amendment Cases in Canada" in Richard Albert, Xenophon Contiades & Alkmene Fotiadou, eds, Foundations and Traditions of Constitutional Amendment (Oxford: Hart Publishing, 2017) 273.
19 Pages Posted: 17 Oct 2018
Date Written: May 1, 2017
Canada's formal constitutional amending procedures, set out in Part V of the Constitution Act, 1982, are distinctively intricate and subject to interpretation. While the courts have addressed some of the interpretive uncertainties, many questions about the meaning and application of Part V remain. This chapter aims to respond to some of those questions by identifying foundational principles governing the operation of Part V and applying them to a practical case study, namely that of Supreme Court reform.
This paper proceeds in three parts. Part I sets out the existing rules of constitutional amendment in Canada and how they apply to Supreme Court reform. This part explains why Court reform is an archetypal example of a “hard amendment case” and why we must become accustomed to such hard cases in Canada. Part II then identifies two new principles that should inform the interpretation and application of Part V. These considerations deal with the analytical approach to assessing reform proposals, and the types of change that trigger Part V. The final part of this paper applies these considerations to a specific example, namely a legislated requirement of bilingualism for judges of the Court. It argues that it is unlikely that Parliament alone could lawfully enact such a requirement. Instead, such legislation would amount to a constitutional amendment in relation to the Court’s composition and therefore require the consent of Parliament and all of the provincial legislatures.
Keywords: Constitutional Amendment, Constitutional Law, Supreme Court Reform, Judicial Bilingualism
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