CONSTITUTIONAL WORKAROUNDS : SENATE REFORM AND OTHER EXAMPLES

Abstract

The process for amending Canada’s constitution is complex and difficult. As a result, “back door” routes for realizing change of a constitutional nature have been adopted. These “workarounds” include “formula shopping,” where amendment procedures requiring a lesser measure of provincial consent are adopted; ordinary legislation, where no provincial consent is sought at all; and hortatory declarations, where mere statements purport to define a government’s position with respect to particular constitutional issues. Workarounds in areas such as Senate reform, fixed date election laws, secession and clarity acts, and regional vetoes, along with declarations dealing with special status for Quebec, the federal spending power, and prorogation of Parliament, will be examined. Key to the constitutional validity of these workarounds is whether they bind the actions of relevant political actors, as opposed to being merely advisory or consultative. At stake is the interplay between two fundamental constitutional values: flexibility, which permits the constitution to adapt to changing societal realities; and federalism, which requires a meaningful degree of provincial consent for significant constitutional change.