THE ARCHITECTURAL METAPHOR AND THE DECLINE OF POLITICAL CONVENTIONS IN THE SUPREME COURT OF CANADA’S SENATE REFORM REFERENCE

In 2014, the Supreme Court of Canada rejected the federal government’sSenate reform agenda. This article focuses on the Court’s response to the government’sproposal for consultative (non-binding) elections, which would have had the prime minister consider recommending an electorate’s preferred candi...

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Bibliographic Details
Published in:The University of Toronto law journal 2018-09, Vol.68 (4), p.661-693
Main Author: Scholtz, Christa
Format: Article
Language:English
Subjects:
Canada. Supreme Court
Constitutional amendments
Constitutional law
Elections
Federal government
Legislatures
Metaphor
Nominations
Parliamentary reform
Parliamentary systems
Political conventions
Reforms
Secession
Supreme courts
Voters
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Summary:In 2014, the Supreme Court of Canada rejected the federal government’sSenate reform agenda. This article focuses on the Court’s response to the government’sproposal for consultative (non-binding) elections, which would have had the prime minister consider recommending an electorate’s preferred candidate for nomination by the governor general. The Court rejected the government’s argument that the proposal was consistent with the legally unenforceable parliamentary conventions of responsible government. The Court characterized the proposal as a break in Canada’s ‘constitutional architecture.’ I ask: how is it that Canada’s constitutional architecture has become unconventional? My answer lies in the Court’s theorization of what the Constitution is and how it may be amended. I trace a shift in the Court’smetaphorical reasoning, from the 1981 Patriation Reference’s Constitution as dynamic machine where conventions are its ‘operative force’ to the 1998 Secession and 2014 Senate Reform References, where a static and aesthetically coherent Constitution as architecture emerges. I argue that, in its architectural understanding, the Court understates the role of conventions in constitutional amendment and finally casts conventions as the saboteurs of a unified constitutional design.
ISSN:0042-0220
1710-1174
DOI:10.3138/utlj.2017-0074