I have been a bit harsh on the Supreme Court in my first post on its opinion in the Reference re Senate Reform, 2014 SCC 32, saying that it had reduced the constitutional text to the status of a façade, which hid as much as it revealed of the real constitutional architecture, which only the Court itself could see. But one must recognize that the Court’s position was very difficult. The amending formulae codified in Part V of the Constitution Act, 1982, are a nightmare, at once too precise and too vague to guide their interpretation. Although in our legal system text, especially constitutional text, is supposed to be the legal form par excellence, superior to any unwritten norm, Part V shows that this is not always so.
It is often said that, before Part V was added to the constitution in 1982, there was no general amending formula in the Canadian constitution. That is only true if “constitution” is understood as “constitutional text.” In reality, there was an amending formula ― the Canadian constitution could be amended by the Imperial (i.e. British) Parliament, which in accordance with a “constitutional position” (i.e. convention) recognized by the Preamble of the Statute of Westminster, 1931, would only act on address of the Canadian Parliament, which, in accordance with a further convention of which the Supreme Court recognized the existence in the Patriation Reference, could only make such an address with “substantial provincial consent.”
This last convention, requiring substantial provincial consent to constitutional changes, was obviously somewhat vague. And indeed it often said that vagueness is an inherent limitation of constitutional conventions, and perhaps one of the reasons which prevent conventions from attaining legal status. More generally, in his great work on The Concept of Law, H.L.A. Hart argued that the passage from somewhat uncertain traditional rules to formal ones was part of a movement from a pre-legal to a legal system. The replacement of the convention requiring “substantial provincial consent” with specific, written amending formulae forming part of the constitutional text ought to have clarified the constitutional rules, and made them more law-like.
Instead, what we got is a system which is in many ways no clearer than the old conventional rule. Indeed, Part V illustrates Lon Fuller’s insight that an ostensibly legal rule or system of rules can fail certain formal requirements (of what he called the “inner morality of law” and what we usually refer to as the Rule of Law) to the point where they fail to guide behaviour and, thus, to be law at all.
The system of a general rule (s. 38 of the Constitution Act, 1982), examples of the general rule (s. 42), and exceptions to the general rule (ss. 41, 43, 44, and 45, some of which (ss. 44 and 45) themselves sound like plausible general rules) does not make for consistency, which is one of the Rule of Law requirements outlined by Fuller. (I note, however, that this system is somehow very Canadian, in that it parallels that which we have adopted for dividing powers between Parliament and the provinces: there, the “peace, order and good government” clause of s. 91 of the Constitution Act, 1867 is the general rule, followed by examples of federal powers in s. 91, and exceptions in s. 92, at least one of which, subs. 92(13) was itself very broad. Not coincidentally, this complex scheme arguably contributed to the distribution of powers being interpreted in a way that is probably far from what its authors had intended.) The mention of the Supreme Court in the amending formula ― combined with the conspicuous absence of the Supreme Court Act from the list of enactments composing the “constitution of Canada” is another glaring example of the inconsistency of Part V.
What is more, its rules are not exemplars of clarity (does, for instance, the “selection of Senators” refer only to their formal selection by the Governor General, as the federal government argued, or to the whole process leading to it?) Some of these rules also seem to produce results so absurd as to border on the impossible (for instance, as one of the judges suggested at the hearing of the Senate Reference, the amending formula seems to indicate that Canada could be turned into a dictatorship more easily than into a democratic republic).
Add this all up, and we have a set of amending formulae that, as Fuller predicted, fail to guide behaviour ― not only that of the politicians to whom they are addressed in the first instance, but also of the courts to which the politicians turn for help understanding them. We have, in other words, a set of rules which, although purportedly legal, indeed purportedly part of the “higher law,” in some circumstances fail to be law at all. (One should not exaggerate the scope of the problem. In many cases ― say, transforming Canada into a republic ― the import of Part V will be perfectly clear. But the Senate Reference as well as l’Affaire Nadon show the importance of cases where this is not so.)
Yet if one thing is unmistakable after the entrenchment of Part V, it is that the “procedure for amending the constitution of Canada” is a legal, and no longer a conventional matter. The courts are stuck with it, and cannot offload the problem of interpreting it to politicians. (In reality, the Supreme Court’s engagement with the conventions of constitutional amendment in the Patriation Reference and the subsequent Quebec Veto Reference illustrate the limits of its willingness, or ability, to do so even under the old, conventional regime.) And so the Supreme Court really had no choice but to try somehow to bring the less-than-fully-legal mess of Part V into the realm of legality. Inevitably, it had to do some violence to the text. It would not be fair to fault it for having done so. However, the difficulty of the Court’s position should not shield it from criticism of the way it went about its task, or absolve it from the responsibility for the problems which its endeavour will create. In particular, the concept of “constitutional architecture” which it used deserves critical attention. I hope to provide it shortly.