Research Paper Number

38/2016

Subsequently published in the Osgoode Hall Law Journal.

Document Type

Article

Publication Date

2016

Keywords

Constitutional Amendment, Constitutional Conventions, Constitution of Canada, Referendum, Jennings Test, Patriation Reference, Secession Reference, Senate Reform Reference, Charlottetown Accord, Meech Lake Accord

Abstract

Commentators have suggested that the unsuccessful national referendum to ratify the 1992 Charlottetown Accord has created an expectation of popular participation requiring national referendal consultation in major reforms to the Constitution of Canada. In this Article, I inquire whether federal political actors are bound by a constitutional convention of national referendal consultation for formal amendments to the basic structure of the Constitution of Canada. Drawing from the Supreme Court of Canada’s Patriation Reference, I suggest that we cannot know whether federal political actors are bound by such a convention until they are confronted with the question whether or not to hold a national referendum in connection with a change to the Constitution’s basic structure. I conclude by suggesting, perhaps counterintuitively, that layering a conventional requirement of national referendal consultation onto the existing requirements for formal amendments to the Constitution’s basic structure could well undermine democracy, despite our common association of referenda with democratic legitimacy. I suggest instead that a national referendum should be an alternative path, not an additional step, in constitutional amendment.

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