Immuring Dicey's Ghost: The Senate Reform Reference and Constitutional Conventions
48 Pages Posted: 9 Jul 2020 Last revised: 22 Jul 2020
Date Written: June 14, 2020
Although the metaphor of "constitutional architecture" appeared in some of the Supreme Court of Canada's previous opinions, it took on a new importance in Reference re Senate Reform, where the Court held that amendments to constitutional architecture had to comply with the requirements of Part V of the Constitution Act, 1982. However, the Court provided very little guidance as to the scope of this entrenched "architecture." As a result, the metaphor's meaning and implications have been the subject of considerable scholarly debate. This article contributes to this debate by arguing that "constitutional architecture" incorporates (some) constitutional conventions. It further takes the position that, instead of relying on this confusing metaphor, the Court should have candidly admitted that conventions were central to its decision by acknowledging that the text of the Canadian Constitution cannot be fully understood without reference to Conventions.
Part I reviews, first, the Supreme Court's opinions in which the notion of constitutional "architecture" has been mentioned, focusing first on this concept's place in the Senate Reform Reference, and second, some of the scholarly commentary that has endeavoured to make sense of it. Part II sets out my own view that constitutional "architecture," as this concept is used by the Supreme Court, is concerned primarily if not exclusively with constitutional conventions. Part III considers whether it is possible to determine just which conventions the notion of constitutional architecture encompasses, examining the conventions' importance and their relationship to the constitutional text as possible criteria, and concluding that neither allows precise determinations. Part IV sets out what would have been a less confusing way of addressing the significance of conventions to the questions the Court was facing in the Senate Reform Reference: frankly recognizing that conventions were relevant to the interpretation of the applicable constitutional texts. Part V examines two objections to the incorporation of conventions (via "architecture" or through interpretation) into the realm of constitutional law, arguing that this incorporation is not illegitimate and that it will not stultify the Constitution's development. Part VI concludes with an appeal for greater transparency on the part of the Supreme Court.
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