Fabien Gélinas and I have written a paper on the (under-appreciated yet crucial) role of constitutional conventions for assessing the constitutionality of the federal government’s plans for reforming the Senate, which are the subject of references now being considered both by the Supreme Court and by the Québec Court of Appeal. (The factums for the Supreme Court reference are available here.) Our paper is now on SSRN. Here is the abstract:
Constitutional conventions are of central importance to the operation of the Canadian constitution; the constitution cannot be understood without reference to them. Yet their effect on the constitutionality of the federal government’s successive proposals for reforming the Senate, which aim at making most or all senators elected rather than appointed at the Prime Minister’s discretion as they are now, has not received much attention.
Constitutional conventions are essential to an assessment of the constitutionality of the proposed Senate reform. Although the government’s proposal does not affect formal constitutional provisions, it would change the actual operation of the constitution by subverting the conventions which make the prime minister responsible for senatorial appointments and requires the unelected Senate to yield to the House of Commons.
We argue that he amending formula of the Constitution Act, 1982, must be interpreted to take these conventions into account. Conventions are underpinned by constitutional principles and are an essential part of the context in which constitutional text must be understood. For the constitution to be a “living tree,” its interpretation must, so far as possible, be consistent with the way it is actually lived. The “method of selecting Senators” and the “powers of the Senate,” which par. 42(1)(b) of the Constitution Act, 1982, protects from unilateral amendment by Parliament are not those that exist only on paper, but those of the living constitution. Because the government’s Senate reform proposal would change them, it can only be enacted under par. 42(1)(b). In its present form, it is unconstitutional.
And from our conclusion:
The [Supreme] Court … held that the new amending formula set out in the Constitution Act, 1982 replaced the rules on constitutional amendment that applied before its enactment. But that formula requires interpretation—and in order to be meaningful, its interpretation must also take the conventions of the constitution into account. These conventions, through which the constitution develops, are part of what makes it “a living tree”. No less than the society’s views on, say, equality, they are part of the evolving context that courts must appreciate when interpreting the constitution.
The amending formula’s provisions relative to the Senate must, therefore, be understood in the context of the conventions that apply to that institution and give life to the relevant constitutional principles. These conventions limit the Senate’s powers and define the way in which its members are chosen, which are protected from unilateral amendment by Parliament. The federal government’s plan for unilateral Senate reform would alter both of these characteristics and is, for this reason, unconstitutional.