Formal amendment rules have been the subject of great controversy in contemporary constitutional politics in Canada. From the patriation of the constitution in 1982, to the nearly ratified 1987 Meech Lake Accord[1]<\/a> and the similarly unsuccessful 1992 Charlottetown Accord,[2]<\/a> and through the Supreme Court\u2019s Secession Reference<\/em>[3]<\/a> in 1998, formal amendment rules have been at the centre of deep legal, political, and indeed moral disagreement in Canada.[4]<\/a><\/p>\n The Supreme Court of Canada\u2019s recent Senate Reference <\/em>continues the modern trend.[5]<\/a> The constitutional questions on which the Court was asked to advise the Government of Canada focused squarely on the design and interpretation of the formal amendment rules entrenched in the Constitution Act<\/em>, 1982<\/em>.[6]<\/a> The questions concerned the requirements for imposing senatorial term limits, repealing the property qualification for senators, abolishing the Senate, and implementing a framework of consultative provincial elections that would inform prime ministerial nominations.[7]<\/a> In this article, I focus only on the last of these questions.<\/p>\n The nub of the issue concerned whether Parliament may constitutionally deploy its limited power of unilateral formal amendment under section 44 to make alterations to the method of prime ministerial nominations to the Senate of Canada, or whether Parliament is required to adhere to the more exacting multilateral formal amendment procedures defined in either sections 38 or 41.[8]<\/a> In my view, the answer was always clear.[9]<\/a> As I argued at the 2013 Constitutional Cases Conference at Osgoode Hall, before the Court rendered its advisory opinion, section 44\u2014which authorizes Parliament to amend the Constitution of Canada \u201cin relation to the executive government of Canada or the Senate and House of Commons\u201d\u2014is not the right vehicle for amendments to the method of filling vacancies in the Senate of Canada:<\/p>\n [T]he escalating and federalist structure of formal amendment entrenched in the architecture of Canada\u2019s formal amendment rules suggests that it was illegitimate to use section 44 to make a formal amendment to an element of Canadian democracy as significant as senator selection. Using the default multilateral amendment rule in section 38 is more consistent with Canadian history, the evolution of the design of formal amendment rules in Canada, and the centrality of federalism to democratic self-government.[10]<\/a><\/p>\n I suggested that the Government of Canada\u2019s recourse to the unilateral formal amendment power under section 44 \u201creflects a disjuncture between legality and legitimacy.\u201d[11]<\/a> I argued that although a purely formalist and strictly legalistic reading of the constitution could<\/em> indicate that Parliament may pursue Senate reform through section 44, political history and constitutional design counsel that it would be illegitimate, whether legal or not. I concluded that<\/p>\n [i]n invoking this unilateral federal amendment power to formally amend senator selection, the Government of Canada has either misunderstood Parliament\u2019s constitutional authority or attempted to achieve unilaterally what it is constitutionally required to pursue multilaterally.[12]<\/a><\/p>\n The Court later concluded in its Senate Reference <\/em>\u201cthat Parliament cannot unilaterally achieve most of the proposed changes to the Senate, which require [recourse to section 38].\u201d[13]<\/a> Then as now, it was difficult to imagine the Court arriving at any other conclusion. The Court\u2019s advisory opinion was constitutionally correct in its interpretation of the structure of formal amendment under the Constitution Act<\/em>, 1982<\/em>; it was well reasoned in its answers to each of the six reference questions; and it was politically prudent in requiring political actors to work cooperatively toward Senate reform pursuant to the text\u2019s formally entrenched multilateral amendment procedures.<\/p>\n Yet in directing its attention methodically to the six reference questions, the Court missed an opportunity to bring to light the larger and more fundamental constitutional infirmities with the Government of Canada\u2019s Senate reform ambitions.[14]<\/a><\/p>\n I stress here that the Government of Canada\u2019s Senate reform ambitions are not troubling in and of themselves. The Senate of Canada is in dire need of reform. As Ned Franks has recognized, the Senate is \u201ca frustrating puzzle\u201d and \u201cthe most criticized institution of government in Canada.\u201d[15]<\/a> It is therefore with good reason that the Senate has been the subject of sustained debate since the adoption of Canada\u2019s founding constitution in 1867.[16]<\/a> Only seven years into Confederation, the House of Commons was already debating Senate reform.[17]<\/a> Shortly thereafter, at the first intergovernmental conference, critics charged that the Senate was failing to meet the federalism-reinforcing objectives its designers had set for it.[18]<\/a> Paul Weiler subsequently captured the dominant sentiment of the twentieth century,[19]<\/a> observing that \u201cjust about everyone (except perhaps a few senators) would concede that the Canadian senate has not proved an effective representative of regional views in the central government.\u201d[20]<\/a> The same critique endures today,[21]<\/a> as the Senate prepares to mark its 150th anniversary in 2017. Senate reform proposals themselves are therefore far from troubling\u2014they are both welcome and necessary.<\/p>\n What is troubling, however, is how<\/em> the Government has sought to pursue its Senate reform ambitions. The Government of Canada\u2019s proposed Senate selection reforms concealed a broader strategy to innovate an unusual method of constitutional amendment: constitutional amendment by stealth. Constitutional amendment ordinarily channels public deliberation through formal, transparent, and predictable procedures designed to express the informed aggregated choices of political actors. But the Government of Canada appears to have calculated that the difficulty of formal amendment made its Senate reform objectives best achievable through informal and irregular procedures designed both to circumvent the textually prescribed rules for formal amendment and to introduce a material change to the Constitution of Canada. A constitutional amendment occurs by stealth when political actors consciously establish a new political practice whose repetition is intended to compel successors to conform their conduct to that practice. Over time, this practice matures into an unwritten constitutional convention that becomes informally entrenched in the constitution, though without the popular legitimacy we commonly associate with a constitutional amendment.<\/p>\n There are three distinguishing features of constitutional amendment by stealth\u2014distinctions that make stealth amendment stand apart from other types of informal constitutional change: the circumvention of formal amendment rules, the intentional creation of a convention, and the twinned consequences of both promoting and weakening democracy. I explain each below in greater detail but a short word now may be useful. First, where political actors believe, correctly or not, that it is too difficult to use the formal amendment rules to entrench an amendment-level change, they resort to alternative informal means. Second, as a consequence of the difficulty of formal amendment, political actors circumvent the onerous formal amendment rules in the constitution\u2019s text and opt instead to create a new democratic practice. Political actors intend this new practice to mature into a constitutional convention that will coerce their successors into compliance. Third, the convention that political actors seek to create is hard to resist because it enhances democracy. At its origin, though, the convention risks undermining democracy because it arises from a circumvention of the constitution\u2019s formal amendment rules.<\/p>\n Here, the Government of Canada, which I will henceforth identify as the \u201cConservative government\u201d, has long sought to replace senatorial appointments with democratic elections. But recognizing the virtual impossibility of formally amending the constitution to create an elected Senate, the Conservative government instead sought to create a political practice to achieve the same end: the prime minister would fill Senate vacancies only with candidates who had been endorsed in province-wide popular elections, pursuant to a parliamentary law creating a framework for consultative senatorial elections. As the democracy-promoting practice of voting for provincial senatorial nominees came to be viewed as encouraging civic participation and as enhancing the sociological legitimacy of the institution, future prime ministers would feel constrained to continue the practice, and that practice would over time mature into a constitutional convention. What would be lost in the entrenchment of this democratic convention is that it had been devised by political actors in response to the impossibility of creating an elected Senate in the only way the constitution permits: by formal amendment. This \u201cstealth amendment\u201d would have been simultaneously democracy-promoting and democracy-deficient: the politically expedient strategy to democratize the Senate would have given voters a voice in the selection of their senators, yet this democracy-promoting outcome would have been achieved by a constitutionally unsound circumvention of the textual rules for formal amendment.<\/p>\n As important as it is to make Canadian public institutions more democratic, the ends here would not have justified the means. An elected Senate is a worthy objective but not if the process by which we achieve it is itself devoid of democratic legitimacy. The formal amendment rules entrenched in the Constitution of Canada set the standard for legitimacy: in order to meet the test, political actors must follow the carefully detailed sequence and thresholds to make a material change to the constitution. The purposeful evasion of those rules undermines both the constitution and the new change created by the evasion. The Conservative government\u2019s plan to establish, by unilateral amendment, a framework for provincial senatorial elections violated both the federalist principles underlying the constitution as well as the constitution\u2019s peremptory rule that the method of senatorial selection may be amended only by multilateral formal amendment.<\/p>\n There were both intrinsic and instrumental reasons why the Conservative government sought to amend the constitution in this way. The constituents of the Conservative Party and its modern precursor parties, including the Progressive Conservative Party, Reform Party, and the Canadian Alliance, have long called for reforms to the Senate\u2019s functions, seat distribution and method of appointment.[22]<\/a> The Conservative government\u2019s recent proposals for Senate elections are an incremental step toward fulfilling its larger vision for institutional reform. As an instrumental matter, senatorial elections also give the Conservative Party some measure of insurance against the possibility of defeat in the House of Commons. Today, the Conservative Party enjoys the benefit of a fractured left, with the Liberal, New Democratic, and Green parties dividing the vote. But this vote split will not endure, just as the vote split on the right did not. In the event that parts or all of the left unite, the Conservative Party will see its institutional advantage evaporate, in which case it could lose the power to nominate senators.[23]<\/a> In the face of that contingency\u2014a contingency that is attracting increasing coverage[24]<\/a>\u2014the motivation for the Conservative government\u2019s proposal for senatorial elections becomes clear: to decouple control of the House of Commons from control of the Senate, by requiring a direct vote for senators.<\/p>\n Whether these Senate reforms are a good idea is of little relevance to the fundamental question: are the means and ends of Senate reform consistent with the Constitution of Canada?[25]<\/a> Fortunately, the Court in the Senate Reference<\/em> foiled the Conservative government\u2019s bid to amend the constitution by stealth. But there is no guarantee that a future Court will rule similarly, nor that political actors will again seek permission or advice by way of a reference for answers to whether and how they may make small- or large-scale constitutional amendments. The failure of this stealth amendment is best viewed neither as a victory nor a loss for particular political actors but rather as an opportunity to learn about the pathologies of formal amendment under the Constitution of Canada, how those pathologies drive stealth amendment, and why Canadian political actors might find stealth amendment a profitable strategy for constitutional change. These are important questions that the Court did not address in its reference.<\/p>\n In this article, I fill the void in the Court\u2019s careful yet incomplete advisory opinion by introducing, theorizing, and illustrating this unconventional form of constitutional amendment pursued by the Conservative government. I begin in Part I by examining constitutional amendment in Canada, with a focus on the difficulty of formal amendment, and the prevalence of informal amendment. In Part II, I explain the Conservative government\u2019s Senate reform objectives with particular emphasis on the proposal to create a framework for senatorial elections. In Part III, I theorize constitutional amendment by stealth and explain how the Conservative government\u2019s proposed senator selection reforms reflect an effort to amend the constitution by stealth, in circumvention of the deliberative procedures the constitutional text demands. I also draw from comparative perspectives to distinguish stealth amendment from other forms of informal constitutional change. I conclude Part III with attention to the costs and consequences of stealth amendment. In Part IV, I offer closing thoughts on constitutional amendment in Canada.<\/p>\n Formal amendment rules are fundamental to written constitutionalism.[26]<\/a> In constitutional democracies,[27]<\/a> formal amendment rules perform an essential corrective function:[28]<\/a> they authorize political actors to remedy discovered faults in the constitutional text in conformity with transparent procedures.[29]<\/a> At their best, formal amendment rules also distinguish constitutional from ordinary law,[30]<\/a> promote public discourse about constitutional interpretation,[31]<\/a> aggregate and translate popular preferences through public institutions,[32]<\/a> precommit political actors,[33]<\/a> check informal amendments that occur extra-constitutionally,[34]<\/a> and express constitutional values.[35]<\/a> Formal amendment rules therefore serve both symbolic and functional purposes.<\/p>\n In Canada, formal amendment rules serve each of these functions, at least in theory. But constitutional amendment in Canada is also special. Canada is one of only a few democratic constitutional states to entrench the restricted multi-track amendment framework, which assigns amendment procedures of varying difficulty to specific provisions or principles.[36]<\/a> It is equally worth noting that constitutional change in Canada has developed informally in unusual ways, not only as a consequence of evolving constitutional conventions,[37]<\/a> which is true of most if not all constitutional democracies,[38]<\/a> but more interestingly as a result of constitutional desuetude.[39]<\/a> Canada also finds itself among a shrinking number of countries without a theory or doctrine of unconstitutional constitutional amendment, something that only adds to Canada\u2019s uniqueness.[40]<\/a><\/p>\n What is most relevant for our purposes, however, is that the Constitution of Canada is one of the world\u2019s most difficult constitutions to amend, earning the top score on Arend Lijphart\u2019s index of constitutional rigidity.[41]<\/a> Yet what remains unappreciated about the difficulty of formal amendment in Canada is that the source of the constitution\u2019s rigidity is not its formal amendment rules alone, which are admittedly exceedingly onerous. It is that those rules have been rendered even more demanding as a result of judicial interpretation, statutory enactment, and arguably also by constitutional convention.[42]<\/a> This extraordinary difficulty of formal amendment in Canada has consequently given rise to informal methods of amendment.[43]<\/a> In this Part, I explain and evaluate constitutional amendment in Canada with a view to setting the foundation for understanding how and why political actors would seek to innovate an unconventional method of informal amendment: constitutional amendment by stealth.<\/p>\n Measuring formal amendment difficulty is itself a difficult task.[44]<\/a> The limitations of existing cross-national formal amendment classifications illustrate the challenge of measuring amendment difficulty. As I have shown, some classifications are overinclusive, others are underinclusive, and still others are both, resulting in oversimplifications that elide important nuances that can either moderate or exacerbate formal amendment difficulty.[45]<\/a> For example, Edward Schneier\u2019s important classification categorizes Canada with New Zealand and the United Kingdom, whose traditionally unwritten constitutions are associated with amendment ease,[46]<\/a> risking the false suggestion that Canada\u2019s own formal amendment rules are similarly easy to satisfy.[47]<\/a> Donald Lutz has observed that Canada\u2019s partially written and unwritten constitution poses a particular challenge for measuring amendment difficulty\u2014namely how to determine what does or does not possess constitutional<\/em> status in Canada\u2014and this, in his view, makes it harder to measure amendment difficulty here than in most other constitutional democracies.[48]<\/a><\/p>\n Formal amendment in Canada is \u201cunusually complicated,\u201d[49]<\/a> to quote an authority on amendment in the United States, which is thought to have one of the world\u2019s most rigid constitutions.[50]<\/a> The strongest critique of the difficulty of formal amendment in Canada is the country\u2019s lived experience: Canadian political actors succeeded in making historic constitutional changes in 1982, when Canada domesticated its constitution by creating made-in-Canada formal amendment rules, and entrenching the Canadian Charter of Rights and Freedoms<\/em>.[51]<\/a> Yet history has shown that Michael Stein was right to question, shortly after the major multilateral constitutional changes in Canada in 1982, whether those changes would \u201cprove to be only a Pyrrhic victory, a largely symbolic success that will effectively bring the process to a halt.\u201d[52]<\/a> Since then, all major multilateral constitutional changes in Canada have met with failure.<\/p>\n Michael Lusztig\u2019s theory of \u201cmass input\/legitimization\u201d best explains why major multilateral constitutional amendment is virtually impossible today in Canada.[53]<\/a> Lusztig begins by observing that major amendment requires an extraordinarily deep and broad level of agreement by political actors.[54]<\/a> In addition to these demanding expectations, the prospect of major multilateral amendment efforts creates incentives for multiple constituencies to mobilize behind their interests in order to attain special status for themselves, and to entrench that status in the product of those amendment efforts.[55]<\/a> An additional complication results: the conferral of special status on one group makes it difficult to deny similar status to other groups.[56]<\/a> This leads to near-certain amendment failure for major multilateral formal amendment efforts involving fundamental or constitutive principles, the polity\u2019s constitutional identity, or the framework and interrelations of public institutions.[57]<\/a> Lusztig and Christopher Manfredi therefore anticipate amendment failure for major multilateral amendments because political actors will make incompatible and intractable demands, both on the subject of the major amendment efforts themselves and on collateral issues of significance to their constituencies.[58]<\/a><\/p>\n That Canada has five formal amendment procedures\u2014each one more difficult to satisfy than the former\u2014is more of a complicating than clarifying feature of its amendment rules.[59]<\/a> It is not always obvious which procedure must be used to formally amend a particular provision or principle, as the Senate Reference <\/em>illustrates.[60]<\/a> The easiest procedure applies exclusively to formal amendments to provincial constitutions: the unilateral provincial procedure ensures that<\/p>\n the legislature of each province may exclusively make laws amending the constitution of the province.[61]<\/a><\/p>\n Next, the unilateral federal procedure in section 44 authorizes the Parliament of Canada to unilaterally formally amend the constitution<\/p>\n in relation to the executive government of Canada or the Senate and House of Commons.[62]<\/a><\/p>\n This procedure may not be used to amend matters expressly assigned to another, more difficult, amendment procedure.[63]<\/a><\/p>\n The third amendment procedure\u2014the parliamentary\u2013provincial procedure in section 43\u2014is deployable for regional matters. It must be used for formal amendments whose subject matter implicates \u201cone or more, but not all, provinces\u201d; for instance, an amendment concerning provincial boundaries, the use of English or French within a province, or the public funding of provincial religious schools.[64]<\/a> This threshold requires approval resolutions of both the House of Commons and the Senate, and of the unicameral provincial legislature or legislatures involved in the amendment.[65]<\/a><\/p>\n The next most onerous procedure is the default multilateral amendment rule in section 38.[66]<\/a> It requires approval resolutions from both houses of Parliament, in addition to resolutions from the provincial legislatures of at least seven of Canada\u2019s ten provinces,[67]<\/a> where the population of the ratifying provinces must amount to at least half of their total aggregate population.[68]<\/a> Political actors must use this threshold to amend senator selection and eligibility, Senate powers and provincial representation, the Supreme Court of Canada, proportional provincial representation in the House of Commons, and provincial\u2013territorial boundaries.[69]<\/a> This threshold is the constitution\u2019s default amendment rule, and political actors must therefore use it to formally amend all parts of the constitution not specifically assigned to another rule.[70]<\/a><\/p>\n The most difficult formal amendment procedure is the unanimity threshold in section 41.[71]<\/a> It requires unanimous consent from federal and provincial political actors with approval resolutions from both the House of Commons and the Senate, and from each of the provincial legislatures.[72]<\/a> This threshold applies to the most important provisions and principles in Canadian constitutionalism: the structure and institutions of Canada\u2019s constitutional monarchy; provincial representation in the House of Commons and the Senate, subject to related but lesser matters amendable by another specially designated lower threshold; the use of English or French, subject to the same qualification; the composition of the Supreme Court of Canada, subject again to the same qualification; and the entire structure of the formal amendment rules themselves.[73]<\/a> The architecture of formal amendment in Canada is therefore intricate in its escalating design.<\/p>\n Successfully adopting a multilateral formal amendment under either the general default or unanimity procedures requires constitutional politics to perform heroics. One scholar describes it as \u201clargely impossible.\u201d[74]<\/a> These demanding multilateral ratification thresholds have been satisfied only once since the entrenchment of Canada\u2019s formal amendment rules over three decades ago.[75]<\/a> The overwhelming supermajority of amendments has occurred using the parliamentary\u2013provincial and unilateral federal amendment rules, both of which are much easier to fulfill than the multilateral procedures designated for major constitutional changes.[76]<\/a> The most recent successful formal amendment occurred in 2011, when Parliament deployed its unilateral formal amendment power under section 44 to adjust the number of Members of Parliament consistent with the principle of proportionate provincial representation.[77]<\/a><\/p>\n In Canada, as in other constitutional states, the difficulty of formal amendment has pushed constitutional change \u201coff the books,\u201d[78]<\/a> forcing political actors to update the constitution in ways that do not manifest themselves in a new constitutional writing. These unwritten changes, or informal amendments<\/em>, alter the meaning of the Constitution of Canada in the absence of a textual modification.[79]<\/a> We can understand the impulse for informal amendment in terms of hydraulic pressure, as Heather Gerken describes it: where the path to formal amendment is blocked as a result of onerous procedures or unachievable majorities, the rigidity of the formal amendment rules will redirect the energies of political actors into alternative channels that will produce the same or similar outcome, albeit in a different form.[80]<\/a> These informal amendments may occur, for instance, by judicial interpretation, national legislation, executive decision, implication, convention, and desuetude.[81]<\/a> The functional result of an informal amendment is indistinguishable from a formal amendment insofar as both are binding on political actors.[82]<\/a><\/p>\n In Canada, informal amendment has become the primary vehicle for constitutional change in the face of the near impossibility of formal amendment. As Allan Hutchinson explains, informal amendments \u201coccur even though the formal process of constitutional change itself remains unused and unchanged.\u201d[83]<\/a> The source for these informal changes has often been the judiciary. Courts, writes Hutchinson, \u201chave become the preferred site for effecting important changes in the constitutional order.\u201d[84]<\/a> Hutchinson remarks that informal amendment via judicial interpretation is a \u201cless democratic\u201d[85]<\/a> means for constitutional change than the legislative procedures authorized by the constitutional text, which require multiple expressions of popular will mediated by representative institutions: \u201cin a society that claims to be devoted to the ideas and practice of democratic legitimacy, it is far from clear why the courts are the suitable or appropriate institution to speak and act on the people\u2019s behalf.\u201d[86]<\/a><\/p>\n One need not agree with Hutchinson\u2019s critique of the judiciary to recognize that informal amendment today prevails over formal amendment. Hutchinson demonstrates that<\/p>\n while almost none of the wording of the Constitution Act 1867 has changed in more than 125 years, the meaning and effect of its provisions on the division of provincial and federal powers have gone through a process of continuing redefinition.[87]<\/a><\/p>\n For example, the historical interpretation of the \u201cpeace, order and good government power\u201d shows that the meaning of a static constitutional text itself can change over time.[88]<\/a> Similarly, the interpretation of section 35 of the Constitution Act, 1982<\/em> in R. v. Sparrow<\/em>[89]<\/a> prompts us to wonder \u201cin what substantive, as opposed to formal, ways an amendment of the constitution would differ from it.\u201d[90]<\/a> Many of these redefinitions have occurred by judicial interpretation, whose effect is virtually identical to an actual amendment. Indeed, writes Hutchinson, \u201cit is difficult to pin down the difference in the substantive effects of the formal acts of amending the Constitution and the informal acts of interpreting it.\u201d[91]<\/a><\/p>\n There are two important qualifications to make to Hutchinson\u2019s observations on the prevalence of informal amendment. Both concern the distinction between informal amendment and judicial interpretation. First, it is necessary to distinguish informal amendment by judicial interpretation from judicial interpretation itself, because not all judicial interpretation results in an informal amendment. The difference turns on the court in which the interpretation occurs: informal amendment by judicial interpretation occurs where the Supreme Court interprets the constitution as a final matter; in contrast, judicial interpretation by lower courts is generally not nationally binding and it is therefore less accurate to define it as an informal amendment.[92]<\/a> Second, even at the Supreme Court level, not all constitutional interpretation results in an informal amendment: the clearest case of an informal amendment by judicial interpretation occurs where the Supreme Court confers constitutional status upon an unwritten constitutional principle by subordinating duly passed legislation to that unwritten rule.[93]<\/a> In such a case, there is no functional difference in constitutional effect between a textual rule entrenched in the constitution by formal amendment, and an unwritten rule entrenched by judicial interpretation.<\/p>\n Canada\u2019s already onerous formal amendment rules have themselves been informally amended to make them even harder than their text suggests. The Secession <\/em>and Nadon<\/em> References<\/em>[94]<\/a> are two recent illustrations of the Court\u2019s power to informally amend the Constitution of Canada, and more specifically, the constitution\u2019s formal amendment rules. In both cases, the Court imposed additional constraints on political actors engaged in formally amending the Constitution of Canada. In the Secession Reference<\/em>, the Court informally entrenched the duty to negotiate, and identified federalism, democracy, constitutionalism and the rule of law, and respect for minority rights as a handful of \u201cunderlying constitutional principles\u201d that must govern the formal amendment process in connection with a provincial secession.[95]<\/a> This judicial interpretation amounts to an informal amendment insofar as these obligations now bind political actors in the same way they would were they formally entrenched in the constitutional text.[96]<\/a><\/p>\n In the Nadon Reference<\/em>, the Court exacerbated the difficulty of formal amendments to the Court itself.[97]<\/a> The Supreme Court informally entrenched its own essential features\u2014which for the Court include, \u201cat the very least, the Court\u2019s jurisdiction as the final general court of appeal for Canada, including in matters of constitutional interpretation, and its independence\u201d[98]<\/a>\u2014against formal amendment by any other mechanism than section 41\u2019s difficult unanimity procedure.[99]<\/a> Here, the Court\u2019s interpretation clarified an open-textured constitutional provision that had once been susceptible to competing interpretations. Today, however, there is only one legal<\/em> interpretation, and though it is not textually entrenched it is nonetheless binding on political actors.<\/p>\n Quite apart from their informal amendment by judicial interpretation, Canada\u2019s formal amendment rules have also been informally amended by parliamentary, provincial, and territorial legislation.[100]<\/a> In 1996, Parliament adopted the regional veto law, which confers veto power to provinces or regions\u2014the Atlantic provinces, Ontario, Quebec, the Prairie provinces, and British Columbia\u2014in major constitutional reforms achieved via section 38.[101]<\/a> This veto law fulfilled the then-prime minister\u2019s pledge to grant Quebec a veto on major constitutional reforms\u2014a pledge made against the backdrop of Quebec\u2019s near-successful referendum on secession in 1995.[102]<\/a> Under the law, no cabinet minister in the Government of Canada may propose a constitutional amendment pursuant to the multilateral amendment procedure in section 38 without first securing the consent of a majority of the provinces, including British Columbia, Ontario, and Quebec, along with Alberta by implication of the current distribution of provincial population.[103]<\/a> Although the regional veto law is an ordinary statute that may be repealed by an ordinary law, it nevertheless constrains the formal amendment process by adding a requirement that is not written into the master text of the Constitution of Canada, but is now effectively informally entrenched within it.[104]<\/a> Relatedly, provinces and territories have adopted their own laws on national formal amendment: several now require a binding or advisory referendum on a multilateral formal amendment proposed by Parliament before holding a ratifying vote in their provincial or territorial legislature.[105]<\/a><\/p>\n In addition to the onerous escalating formal amendment rules, as well as the constitutionally uncodified judicial and legislative requirements layered onto them, formal amendment in Canada may also be further complicated by constitutional convention. It has been suggested that the existing amendment thresholds do not reflect the new expectations of popular participation in constitutional amendment.[106]<\/a> The decision to require a national referendum to ratify the failed Charlottetown Accord may have created an expectation that future large-scale amendment efforts will also require one, making formal amendment even more difficult than its textual thresholds suggest.[107]<\/a> Another convention has arguably emerged from the same Charlottetown referendum: the territories\u2019 involvement in the 1992 referendal process may have created a precedent requiring their future participation.[108]<\/a> For all of these reasons, multilateral formal amendment on major constitutional issues in Canada is difficult, to say the least.[109]<\/a><\/p>\n The difficulty of formal amendment has made it unlikely to achieve Senate reform using the multilateral amendment procedures entrenched in the Constitution of Canada. It is also improbable to achieve meaningful Senate reform through the informal amendment process of judicial interpretation: the Court cannot, by interpretation, order elections for senator selection, nor can it impose a more equitable distribution of Senate seats, nor mandate more democratic measures in the Senate\u2019s internal operation to make it more effective.[110]<\/a> In this way, the structure and design of the Senate are what Sanford Levinson would describe as \u201chard-wired\u201d features of the constitution that cannot be changed though the process of informal amendment.[111]<\/a><\/p>\n Before the adoption of the Constitution Act<\/em>, 1982<\/em>, Canadian political actors updated the constitution in the absence of formal amendment rules under a constitutional convention requiring provincial consent for significant constitutional changes.[112]<\/a> The Constitution Act<\/em>, 1982<\/em> finally entrenched formal amendment rules that more clearly authorized formal changes to the Senate,[113]<\/a> but political actors failed on two occasions to reform the Senate within larger frameworks of constitutional revision: first in the 1987 Meech Lake Accord, and next in the 1992 Charlottetown Accord. These two momentous failures of large-scale constitutional revision did not quell calls for Senate reform,[114]<\/a> certainly not from western Canada, the origin of proposals for a Triple-E Senate. Indeed, most Canadians have long supported, and continue today to support, some form of Senate reform.[115]<\/a> But in light of the recent failures of wholesale constitutional renewal, it is difficult to see a path to Senate reform by formal amendment.[116]<\/a><\/p>\n The Conservative government\u2019s modern proposals for Senate reform\u2014the predicate for the Supreme Court\u2019s Senate Reference<\/em>\u2014provide a contrast to the earlier, more comprehensive formal efforts to amend the Senate. As Bruce Hicks writes, whereas \u201csubstantive Senate reform has failed to get traction since Confederation,\u201d the current approach toward Senate reform suggests a preference for \u201cincremental changes that either do not require amending the Constitution Act<\/em>, 1867<\/em> or do not require provincial consent.\u201d[117]<\/a> In the Part to follow, I will argue that the modern proposals are just as significant as earlier efforts to reform the Senate, only that the modern proposals\u2014had the proposals been validated by the Supreme Court, and subsequently entrenched into law\u2014would have amended the Constitution of Canada informally<\/em>, though with similarly far-reaching effect as the formal amendments envisioned by earlier large-scale attempts. First, however, it is important to understand precisely what the modern reforms proposed to do.<\/p>\n The questions referred by the Conservative government ask the Supreme Court to evaluate Parliament\u2019s power to pass three Senate reform bills.[118]<\/a> The Senate Term Limits bill,[119]<\/a> introduced in 2006, proposes to formally amend section 29 of the Constitution Act<\/em>, 1867<\/em> by establishing an eight-year term limit for new senators.[120]<\/a> The Senate Appointment Consultations bill,[121]<\/a> introduced in 2007, proposes to create consultative provincial and territorial elections to gauge voter preferences to fill Senate vacancies as they arise in their province or territory. The Senate Reform bill,[122]<\/a> itself introduced in 2011, combines parts of the Senate Term Limits and Senate Appointment Consultations bills into one: it establishes a nine-year term limit for new senators by formally amending section 29 of the Constitution Act<\/em>, 1867<\/em>, and it moreover creates a framework for provincial and territorial elections to fill Senate vacancies.[123]<\/a> In this article, I focus only on the framework of advisory elections that the Conservative government proposed to create without a formal amendment. It is my claim that this framework for consultative senatorial elections would have informally amended the Constitution of Canada had the Court authorized Parliament to create this framework.<\/p>\n The Senate Reform and the Senate Appointment Consultations bills create a similar framework for consultative senatorial elections. The purpose of both bills, stated in the former though not in the latter, is to constrain the prime minister to appoint senators who claim the popular support of voters in their province or territory. The Senate Reform bill\u2019s primary governing principle holds that \u201c[s]enators to be appointed for a province or territory should be chosen from a list of Senate nominees submitted by the government of the province or territory,\u201d[124]<\/a> with the list of nominees \u201cto be determined by an election held in the province or territory.\u201d[125]<\/a> The bill stipulates that where a province or territory has adopted the proposed electoral framework, which is set out in Schedule 1, the prime minister \u201cmust consider names from the most current list of Senate nominees selected for that province or territory\u201d when \u201crecommending Senate nominees to the Governor General.\u201d[126]<\/a> The electoral framework contains instructions for administering consultative senatorial elections in a province or territory, including rules about candidate eligibility,[127]<\/a> election timing,[128]<\/a> election administration officials,[129]<\/a> nomination procedures,[130]<\/a> balloting,[131]<\/a> concurrent provincial, territorial, or municipal elections,[132]<\/a> as well as other regulations attendant to holding elections.[133]<\/a> The Senate Reform bill also establishes a nine-year term for senatorial appointees.[134]<\/a> Whereas this new term limit is identified as an express amendment to section 29 of the Constitution Act<\/em>, 1867<\/em>,[135]<\/a> the new framework for consultative senatorial elections is not expressly identified as an amendment to the Constitution of Canada. This is a problematic omission, as I will show in Part III.<\/p>\n The Senate Appointment Consultations bill has the same objective: to constrain the prime minister to consider provincial or territorial consultative senatorial election winners for appointment to the Senate. The bill\u2019s framework for consultative elections adopts many of the same elements as the Senate Reform bill.[136]<\/a> The Senate Appointment Consultations bill states generally that the Government of Canada is \u201ccommitted to pursuing comprehensive Senate reform to make the Senate an effective, independent, and democratically elected body that equitably represents all regions.\u201d[137]<\/a> Yet the bill appears to concede its own legal precariousness when it states that it seeks to alter the way the prime minister makes recommendations to the Governor General for eventual appointment \u201cpending the pursuit of a constitutional amendment under subsection 38(1) of the Constitution Act, 1982 <\/em>to provide for a means of direct election.\u201d[138]<\/a> Specifically, the bill creates \u201ca method for ascertaining the preferences of electors in a province on appointments to the Senate within the existing process of summoning senators.\u201d[139]<\/a> Although there may be a formal difference between establishing direct senatorial elections via section 38, and creating consultative senatorial elections as the bill intends to establish, there is little functional difference between the two types of selection mechanisms.[140]<\/a> The bill expressly identifies the long list of statutory amendments that would result from these major changes to senatorial selection but says nothing of the resulting constitutional amendments.[141]<\/a> As I will show in Part III, this is a problem for the democratic legitimacy of the consultative senatorial elections the Conservative government sought to establish.<\/p>\n In the recent Senate Reference<\/em>, the relevant question for the Supreme Court was \u201cwhether Parliament, acting alone, can reform the Senate by creating consultative elections to select senatorial nominees endorsed by the populations of the various provinces and territories.\u201d[142]<\/a> The Court rejected both major arguments from the Conservative government, namely, first, that the introduction of consultative elections does not \u201cconstitute an amendment to the Constitution of Canada in relation to the method of selecting senators,\u201d[143]<\/a> and \u201cin the alternative that, if the implementation of consultative elections requires a constitutional amendment, then it can be achieved under the unilateral federal amending procedure (s. 44).\u201d[144]<\/a> The Court concluded that the Conservative government could not proceed as planned to establish its framework for provincial consultative elections to fill senatorial vacancies without violating the Constitution of Canada. It is important to understand the Conservative government\u2019s two major arguments.<\/p>\n The Conservative government\u2019s first major argument was that creating a framework for consultative senatorial elections does not constitute an amendment to the Constitution of Canada.[145]<\/a> It does not amend the constitution because consultative elections may be introduced without changing the text of the constitution, where the formal process for appointing individuals to the Senate\u2014specifically by official summoning by the Governor General on the advice of the prime minister, as required by the Constitution Act, 1867<\/em>[146]<\/a>\u2014remains unchanged.<\/p>\n The Court advised the Conservative government that it could not accept this argument because it \u201cprivileges form over substance.\u201d[147]<\/a> A constitutional amendment is more than a formal amendment to the constitutional text, and were the Court to accept the first major argument, it would \u201c[reduce] the notion of constitutional amendment to a matter of whether or not the letter of the constitutional text is modified.\u201d[148]<\/a> Although introducing consultative elections would not change the constitutional text, \u201cthe Senate\u2019s fundamental nature and role as a complementary legislative body of sober second thought would be significantly altered.\u201d[149]<\/a> The Court made two basic points in this respect. First, relying on consultative elections to fill senatorial vacancies \u201cwould amend the Constitution of Canada by fundamentally altering its architecture.\u201d[150]<\/a> The Senate would be transformed from an appointed body, designed to bring moderation and deliberation to the legislative process, to an elected body that would lose its independence from the electoral process. Such a transformation would introduce partisanship into the Senate\u2019s legislative role, and thereby undermine its moderating and deliberative functions, and risk making the Senate an adversarial rather than complementary chamber to the House of Commons.[151]<\/a><\/p>\n The Court also gave a textual reason why creating consultative elections would constitute a constitutional amendment. For the Court, the escalating structure of formal amendment leaves little room to doubt that the multilateral amendment procedure in section 38 must be used to make constitutional amendments in connection with \u201cthe method of selecting Senators,\u201d to quote directly from the constitutional text.[152]<\/a> This generalist language on constitutional changes to senatorial selection \u201ccovers the implementation of consultative elections, indicating that a constitutional amendment is required and making that amendment subject to the general procedure [in Section 38].\u201d[153]<\/a> The Court again invoked the distinction between form and substance to support its interpretation of the constitution: \u201c[t]he words \u2018the method of selecting Senators\u2019 include more than the formal appointment of Senators by the Governor General.\u201d[154]<\/a> The constitution\u2019s drafters chose this language in order to cover all<\/em> alterations to the method of senatorial selection, not only for changes to the means of appointment.[155]<\/a> Therefore, explained the Court, the new framework of consultative elections, which would create candidate lists from which the prime minister would be expected to choose nominees for senatorial appointments, would effectively change the method of senatorial selection, and would therefore constitute an amendment requiring recourse to the multilateral amendment procedure in section 38.[156]<\/a><\/p>\n The Conservative government\u2019s alternative argument conceded that creating consultative elections would constitute an amendment to the Constitution of Canada but insisted that such an amendment could be achieved using the unilateral federal amendment power under section 44.[157]<\/a> Subject to sections 41 and 42 of the Constitution Act<\/em>, 1982<\/em>, Parliament is authorized under section 44 to \u201cexclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.\u201d[158]<\/a> The Conservative government therefore argued that introducing a framework of consultative elections would constitute an amendment to the Constitution of Canada \u201cin relation to … the Senate\u201d that is achievable through Parliament\u2019s amendment authority in section 44.[159]<\/a><\/p>\n The Court likewise rejected this argument using a textualist interpretation of the constitution. Since Parliament\u2019s unilateral amending power is expressly made subject to section 42\u2014which applies the multilateral amendment procedure under section 38 to changes to \u201cthe method of selecting senators\u201d\u2014it follows for the Court that section 38 must be used to initiate consultative elections.[160]<\/a> Section 42 is peremptory in removing its designated items\u2014for example, amendments to the Supreme Court of Canada, the principle of proportional representation in constituting the House of Commons, and importantly to senatorial selection\u2014from the parliamentary power under section 44.[161]<\/a> To read the interrelation of sections 38, 42, and 44 otherwise would be to misread the limited scope of section 44, and to confer upon Parliament the unilateral power to fundamentally change the Constitution of Canada without the required measure of provincial consent contemplated by the escalating structure of formal amendment.[162]<\/a> Therefore, wrote the Court, Parliament cannot lawfully introduce consultative elections, and thereby amend the Constitution of Canada using the narrow power of section 44.[163]<\/a><\/p>\n It is difficult to find error in the Supreme Court\u2019s careful rejection of the Conservative government\u2019s proposed Senate reforms. As an exposition of legal doctrine, it is consistent with the standard set by the Court\u2019s best precedents in defining constitutional law. As an act of judicial statecraft, it achieves two important objectives: it sets the rules for Senate reform in Canadian constitutional politics, and confirms the Court as the ultimate arbiter of constitutional meaning. But as an exercise in constitutional statesmanship, the strongest critique of the Court\u2019s advisory opinion is precisely that it is carefully measured, perhaps too much so. The Court failed to expose the extent to which the proposed introduction of consultative senatorial elections\u2014not the consultative elections themselves, but the way<\/em> the Conservative government proposed to introduce them into Canadian political practice\u2014violates not only the constitution, but also the democratic values of transparency, accountability, and predictability in the rule of law.<\/p>\n The Court made no mention of the democratic deficiencies in the Conservative government\u2019s plans to institute consultative senatorial elections. It did, however, suggest that consultative elections might create a constitutional convention on senatorial selection and nomination. The Court suggested that requiring the prime minister to consider the individuals identified on the lists of elected candidates for appointment to the Senate would tie the prime minister\u2019s hands in senatorial selection.[164]<\/a> Acknowledging that \u201c[i]t is true that, in theory, prime ministers could ignore the election results and rarely, or indeed never, recommend to the Governor General the winners of the consultative elections,\u201d the Court reasoned correctly that \u201c[w]e cannot assume that future prime ministers will defeat [the purpose of giving senators a popular mandate] by ignoring the results of costly and hard-fought consultative elections.\u201d[165]<\/a> But the Court could have said more to lay bare the problematic irregularity of the procedures by which the Conservative government sought to introduce consultative senatorial elections.<\/p>\n Others have suggested similar critiques of the proposal for consultative senatorial elections. For example, the Canadian Bar Association has opposed consultative elections because although they would \u201cnot affect the legal authority of the Prime Minister to select nominees to be appointed to the Senate,\u201d they would \u201caffect his or her practical ability to select such nominees.\u201d[166]<\/a> The Association explains that the prime minister\u2019s practical authority would be constrained as he or she began to draw nominees from lists of elected candidates because it would become difficult \u201cto choose any candidate other than those preferred by the consultation vote.\u201d[167]<\/a> The prime minister would understandably \u201cbe reluctant to ignore the direct expression of the electors,\u201d and thus \u201c[i]t is conceivable that the conditions for the creation of a convention may arise over time such that a Prime Minister would always respect the electorate\u2019s choice.\u201d[168]<\/a><\/p>\n Scholars have made related, though different, critiques. Fabien G\u00e9linas and L\u00e9onid Sirota, for instance, have argued that consultative senatorial elections would increase the political authority of the Senate contrary to its original design.[169]<\/a> This could eventually overrun the convention limiting the Senate\u2019s power to oppose the will of the House of Commons, with consequences for responsible government, Cabinet formation, Canada\u2019s constitutional monarchy, and, more generally, the Constitution of Canada.[170]<\/a> Jos\u00e9 Woehrling has suggested that it would be preferable to reform senatorial selection through the establishment of a constitutional convention pursuant to which the federal executive would select senatorial nominees on the recommendation of provincial executives.[171]<\/a> For his part, Gary O\u2019Brien, the former Deputy Clerk of the Senate, has cautioned that consultative elections could upset current committee operations in the Senate, and would in turn change its nature and function.[172]<\/a><\/p>\n These are strong criticisms of the Conservative government\u2019s Senate reform proposals, but none addresses squarely the core of the democratic deficiency in consultative senatorial elections. Consultative elections are not problematic in and of themselves. On the contrary, they reflect a potentially positive step toward demystifying the Senate. However, their proposed introduction through irregular means is democratically deficient in important ways that threaten to weaken the rule of law in Canada. This is perhaps a paradoxical argument\u2014after all, how could an indirectly elected Senate weaken the rule of law or reveal democratic deficiencies?\u2014but it is worth making in defense of transparency, accountability, and predictability. The process by which the Conservative government proposed to introduce consultative senatorial elections would have undermined democratic values, notwithstanding the democracy-enhancing result of consultative elections replacing the existing practice of non-democratic senatorial appointment with a more democratic method of electoral consultation. In the Part to follow, I turn my attention to the democratic deficiency in the Conservative government\u2019s proposal for consultative senatorial elections.<\/p>\n Constitutional amendment ordinarily channels public deliberation through formal, transparent, and predictable procedures designed to express the informed aggregated choices of political actors. The Conservative government\u2019s plan to create consultative senatorial elections amounted to a proposal for a major constitutional amendment to the basic structure of the Constitution of Canada, yet it was designed to occur outside of this conventional process of constitutional amendment. The Conservative government deployed a strategy of stealth amendment through informal and irregular procedures in order to circumvent the onerous (but nonetheless constitutionally required) rules for amending senatorial selection. Constitutional amendment by stealth is a species of informal amendment. It has three distinguishing features: first, it is an effort to circumvent the rules of formal amendment; second, its underlying intent is to create a practice that will ultimately bind successors to a constitutional convention; and third, the substance of the convention itself is democracy-promoting but its origins are democracy-deficient insofar as they circumvent the constitution\u2019s formal amendment rules.<\/p>\n In this Part, I explain the concept of constitutional amendment by stealth, and illustrate how the Conservative government\u2019s proposed senator selection reforms reflect this method of informal and irregular constitutional change. I also explore the costs and consequences of stealth amendment. My ultimate claim is that the stealth senatorial selection amendment attempted by the Conservative government violates the democratic rule of law values of transparency, predictability, and accountability. Let me stress, at the outset, that much of this analysis is a modest effort to project into the future what would have happened had the Conservative government passed its framework for consultative senatorial elections into law. The point is to explore the implications for constitutional law and politics of consultative senatorial elections.<\/p>\n The best critique of the Conservative government\u2019s Senate reform efforts concerns what Mark Walters calls the strategy \u201cto exploit the distinction between constitutional law<\/em> and constitutional convention<\/em>, and to legislate for an elected Senate within the realm of convention while leaving the appointed Senate in tact as a matter of law.\u201d[173]<\/a> Walters suggests that the consultative elections law, if passed and sanctioned by the Court, would have ultimately compelled the provinces to opt in to the system of provincial consultative senatorial elections.[174]<\/a> The source of compulsion, however, would not necessarily be a convention, explains Walters, but would rather stem from political necessity.<\/p>\n To understand Walters\u2019s sophisticated argument, it is important to accept his point of departure, namely that there is a distinction between feeling \u201cobliged\u201d to do something and feeling \u201cobligated\u201d to do that thing.[175]<\/a> The creation of a constitutional convention, writes Walters, turns on the \u201cspecial sense of obligation\u201d that binds political actors to feel \u201cobligated to do\u201d something, a feeling that is \u201cnecessary for there to be a rule,\u201d without which \u201cno true constitutional convention could be said to exist.\u201d[176]<\/a> In absence of such an obligation, the consultative elections law would not create a proper rule<\/em> but, rather, simply a practice<\/em>. Walters even doubts whether \u201ca true convention on appointing elected senators could emerge\u201d[177]<\/a> in the future. He concludes that \u201c[t]he real<\/em> point of the legislation, then, is to make it politically difficult, perhaps even impossible, for future <\/em>prime ministers to depart from this practice.\u201d[178]<\/a> It would become politically unpalatable for the prime minister to refuse to nominate the victorious candidates, because the duty to consider the consultative senatorial elections would leave the prime minister with no choice but to nominate the candidate chosen by voters. Walters illustrates the unavoidable constraint that the political reality of consultative elections would bring to bear:<\/p>\n Confronted by the statutory duty to \u201cconsider\u201d election results, a future Prime Minister who disagreed with, and wanted to depart from, Harper\u2019s practice of appointing elected senators to an otherwise unreformed Senate would either have to \u201cconsider\u201d the election results and reject them, appointing someone the people did not select in place of the people they did select, or take steps to have the legislation repealed, thus appearing to take away from the people a right to vote for their legislators, and it is fair to assume that selecting either course of action would involve political costs that the departure from a mere practice unsupported by legislation would not.[179]<\/a><\/p>\n This is problematic, writes Walters, because consultative elections appear to \u201c[establish] the basis for a constitutional trap not a constitutional convention.\u201d[180]<\/a> In the short term, the Senate would in practice, though not by convention, become elected, but it would remain unreformed both in terms of its seat distribution and its constitutional powers and functions.[181]<\/a> In the long term, however, the Conservative government would seek, first, to formalize this practice with a formal amendment to constitutionalize an elected Senate, which by then will have become an unchangeable political reality;[182]<\/a> and second, to force the provinces to negotiate the other aspects of Senate reform with constrained choices on reform possibilities since an elected Senate will have become a \u201cforegone conclusion.\u201d[183]<\/a> Walters stresses this idea of compulsion, or force<\/em> as he emphasizes, in lamenting that the Conservative government\u2019s introduction of consultative elections would have rigged the rules of future constitutional change:<\/p>\n Once the step toward an elected Senate is taken, the basic course of future reform will have been established and the choices available to actors involved in subsequent steps will have been forced<\/em> in ways that they would not otherwise be.[184]<\/a><\/p>\n Walters is justifiably concerned about consultative elections. But even Walters\u2019s strong critique of consultative elections is incomplete. Walters is correct that consultative elections would set a \u201ctrap\u201d for the provinces in future negotiations on constitutional reform, but it is important to identify the actors, objects, and subjects of the entrapment more clearly than he does. Second, I depart from Walters\u2019s argument on whether the introduction of consultative elections as proposed by the Conservative government would ultimately create a constitutional convention binding upon future prime ministers. Walters argues no, but there is a much stronger case to be made than Walters suggests. Third, as I will discuss in the section to follow,[185]<\/a> had the Supreme Court approved the Conservative government\u2019s proposal for consultative elections, the outcome would have been harmful to democracy and the rule of law in Canada\u2014a paradoxical point, to be sure, given that consultative elections would have given Canadians the power to vote for their heretofore appointed senators.<\/p>\n Walters is not specific enough about the effect of consultative elections on the provinces, nor does he explain how much further than the provinces themselves the effect would extend. First, it is undeniable that consultative elections would limit the range of choices available to provincial premiers, provincial legislatures, and also of the provincial electorate in future constitutional reform. The prime ministerial practice of nominating winning consultative election candidates would become politically irreversible despite possible opposition from provincial premiers, who would risk losing their status as the province\u2019s voice in Ottawa in favour of elected senators sent by voters to Ottawa for that purpose. Provincial legislatures, for their part, would have a difficult time justifying any opposition to proposals to formalize an elected Senate given that consultative elections would have effectively led to a de facto elected Senate. And, for the same reason, the provincial electorate would not accept anything less than an elected Senate in formal constitutional negotiations. The negotiations on any future formal amendment would therefore be distorted by the informal transformation of the Senate into a de facto elected body.<\/p>\n But the effect of consultative elections would extend beyond the provinces themselves. The prime ministerial practice would bind future prime ministers to follow his example, which as I will argue below would eventually mature into a convention.[186]<\/a> It would deny other political actors, including the parliamentary opposition, provincial premiers and legislatures, as well as the Canadian electorate, the constitutional right to deliberate on whether Canada should have an elected Senate\u2014a right that is in any case virtually meaningless without the concurrent authority simultaneously to make substantive changes to the powers and functions of the Senate. The subjects of the Conservative government\u2019s entrapment would therefore be the entire universe of Canadian political actors. When the time arrived to constitutionalize senatorial elections and to make related Senate reforms, Canada\u2019s federalist safeguards to major constitutional change would be just one of many constitutional rules obviated by the Conservative government\u2019s by-then normalized practice of consultative senatorial elections.<\/p>\n There is an additional point worth making: the purpose of the Conservative government\u2019s entrapment was unconstitutional at best, and illegitimate at worst. The Conservative government sought to do unilaterally what it could not do multilaterally. As I will explain in detail below, any future constitutional change to the Senate, and to the Constitution of Canada, would have followed from the framework of consultative elections adopted by Parliament alone with no further national consultation, and it would have been operationalized exclusively by the prime minister in his choice of whom to nominate to the Senate. One person would therefore have had a disproportionate influence on the reform of the Senate, contrary both to the actual design of the constitution, which mandates multilateral agreement for a constitutional change of such significance, and to the spirit of the constitution, whose architecture is intended to foster cooperative federalism, not executive constitutionalism, in major constitutional change.<\/p>\n What made the plan for senatorial elections devious is what made it brilliant: the Conservative government sought to \u201ctrap,\u201d to capitalize on the term used by Walters,[187]<\/a> provincial actors into no other alternative but to ratify by future constitutional amendment the framework for an elected Senate created by consultative elections\u2014whether or not the provinces indeed supported the idea on its merit. The trap would have been inescapable: either formally entrench consultative elections or deny the provincial electorate the de facto right to elect its own senators, a right that voters would have deemed vested in light of their continuing practice of electing their senators. But there is a stronger case than Walters suggests that consultative elections as proposed by the Conservative government would have created a constitutional convention binding future prime ministers, though binding only politically, not legally.<\/p>\n A convention, which is an obligation to act \u201cin a way other than what the formal law prescribes or allows,\u201d[188]<\/a> can arise from practice, agreement, declaration, or principle.[189]<\/a> Had the Court approved consultative elections, the origin of the convention requiring the prime minister to nominate the consultative election winners could not have been traced to either practice or principle alone. Moreover, the lack of public agreement ex ante <\/em>or ex post <\/em>to the convention, as well as the absence of any authoritative declaration that a convention was being established, would have been problematic, as I explain below. The meaning of a convention and its formation are key to understanding why consultative elections as proposed by the Conservative government would have ultimately created a convention requiring future prime ministers to conform their conduct to the precedent of nominating the consultative election winner to the Senate.<\/p>\n The study of conventions must begin with Ivor Jennings\u2019s three-part test for their creation.[190]<\/a> Jennings wrote that \u201c[w]e have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?\u201d[191]<\/a> This test requires precedents for establishing a convention, political actors to feel bound by those precedents, and a normative reason for the rule supported by conventional practice. As to the first question, Jennings explained that \u201cmere practice<\/em> is insufficient.\u201d[192]<\/a> As to the second and third, just because political actors do<\/em> act a certain way does not mean that they should<\/em>; they must \u201cbelieve that they ought to do so\u201d in order for a convention to exist.[193]<\/a> The creation of a convention must also \u201cbe due to the reason of the thing because it accords with the prevailing political philosophy,\u201d meaning that it \u201chelps to make the democratic system operate,\u201d or that \u201cit enables the machinery of State to run more smoothly.\u201d[194]<\/a> And where the convention continues to operate \u201cbecause it is desirable in the circumstances of the constitution, it must be created for the same reason.\u201d[195]<\/a> These then are the three conditions for the creation of a convention: precedent, self-consciousness, and normativity.<\/p>\n A convention may arise separately in four ways. It may arise as a result of a political practice seen as \u201cnecessary to protect some facet of the constitutional system,\u201d[196]<\/a> by agreement where \u201cthe main political actors\u201d expressly create or alter a \u201csort of contractual agreement\u201d to act in a certain way,[197]<\/a> from the intent to establish one \u201cby authoritative unilateral declarations by key political actors,\u201d[198]<\/a> and on principle where \u201ca substantive obligation\u201d exists \u201crequiring political actors to behave in a certain way.\u201d[199]<\/a> In light of the historically harsh critique of the Senate for its democratic deficit as an appointed chamber,[200]<\/a> the Senate would have accrued a new democratic legitimacy as an elected body under the plan for consultative elections, and this would have been difficult for prime ministers to ignore. Refusing to nominate a senatorial election winner would have invited the disapproval of voters who would have seen the previous prime minister accede to their democratically expressed wishes to choose their senators. The continued prime ministerial nomination of election winners would have become a de facto moral obligation to respect the democratization of the Senate set in motion by the elections themselves.<\/p>\n Assume the Court had reached the opposite conclusion in the Senate Reference<\/em>: that the Conservative government has the constitutional authority to create a framework for senatorial elections using section 44. Under the majority Conservative government, the bill would have passed in both houses, it would have received royal assent, and it would have come into force relatively soon\u2014let us say no later than the end of 2014. With twenty Senate vacancies across seven provinces,[201]<\/a> it is not unreasonable to posit that there would have been pressure on both federal and provincial political actors to fill them.[202]<\/a> At least some, and perhaps all, of these provincial consultative senatorial elections would have been held prior to the federal general election, scheduled for October 2015, and the current prime minister, exercising his personal prerogative to choose whom to appoint,[203]<\/a> would have nominated the winning candidates who would in turn have been summoned to the chamber by the Governor General, as the constitution requires.[204]<\/a><\/p>\n Whether or not the incumbent prime minister had won re-election in the general election, this practice of prime ministerial nomination of consultative election winners is likely to have continued. It would have either persisted under the re-elected prime minister, or under a new prime minister from the incumbent party, or, perhaps grudgingly, under a new prime minister from the previous opposition. Under the law authorizing provinces to hold elections to choose their Senate representatives, those elections would have yielded clear indications of voter preferences for Senate nominees in their province. The current prime minister, if re-elected, would have continued the practice, as it had been his declared preference. A different prime minister would only at his or her peril have cast aside the clearly expressed wishes of voters, even if the province had not been one that tended to support his or her party. Failure to heed the choice of provincial voters would have given the opposition ammunition to deride the prime minister, and it would have moreover caused members of his or her own party to question the commitment to reforming the Senate, and more broadly, to democratizing public institutions in need of change. It is, of course, possible that a new prime minister would have resisted the practice begun by his predecessor to nominate winning candidates to the Senate. But the new prime minister would still have had to contend with provincial leaders and voters who would have come to expect, from earlier nominations, the right to continue choosing their senators.<\/p>\n The expectation of the right of choice created by prior practice would moot inquiries into whether the right had been properly created. The regularity of the practice would cause politics to override law, transforming a practice into a conventional right over time as political actors continued to engage in it. Political pressure to conform to prior practice would change the rule of recognition to recognize the validity of the expectation that prime ministers will nominate the winning consultative election candidates to the Senate. In Hartian terms, prime ministerial practice of nominating the consultative election winner to the Senate would become \u201ca rule of the group to be supported by the social pressure it exerts.\u201d[205]<\/a> That a convention arises in this way does not undermine the force or legitimacy of the convention, as long as political actors self-consciously act in a way reflecting their \u201cshared acceptance\u201d of the practice as a \u201cguiding rule\u201d[206]<\/a> for their conduct. Conventions, after all, \u201cultimately reflect what people do,\u201d[207]<\/a> and they are the result of political actors internalizing a rule as obligatory.<\/p>\n What makes it even harder to imagine that the governing party could discontinue this practice of prime ministerial nomination of consultative senatorial election winners is that the practice is supported by the principle of democracy. This speaks to the normativity that Jennings insists must underpin a political practice before it becomes a convention.[208]<\/a> Although the process by which the convention had been established would have belied the formal rules for changing the method of senatorial selection, it would have become cloaked in a nearly unassailable democratic legitimacy that can be conferred only by free electoral choice. The newly democratized Senate would have become untouchable: \u201can area in which the freedom of the actors on the governmental stage is curtailed (though not by legal <\/em>restraints)\u201d and in which those actors \u201care precluded from adopting the policy that accords with their perception of what the public interest requires.\u201d[209]<\/a> Here, the democratic principle justifying senatorial elections would have frustrated any inclination that opponents might have had to deny voters the acquired right to choose their senators. It is in this way that the practice would have become a convention: after a critical number of exercises, \u201c[a]ny deviation from the practice attracts\u2014and is rightly regarded as attracting\u2014criticism and pressure to conform.\u201d[210]<\/a> There would henceforth have been no reasonable political<\/em> basis for abolishing senatorial elections, although the legal<\/em> case would be strong in light of its constitutionally illegitimate origins, as I discuss further below.[211]<\/a><\/p>\n It is important to stress that the practice would not have matured into a constitutional convention without the compliance of opposition parties. Cross-party ratification, either by affirmative approval or grudging acquiescence, is a condition of the creation of a convention. The real essence of a convention, Joseph Jaconelli explains, \u201cis to be found in the system of concordant actions and expectations that draws into its compass even those who were not parties to the agreement.\u201d[212]<\/a> The test for Jennings\u2019s second of the three questions\u2014whether the actors in the precedents believe they were bound by a rule\u2014can be answered definitively only where the opposition, when it attains power, conforms its conduct to a practice established by its predecessor.[213]<\/a> As I have suggested above, it would be politically unpalatable for opponents to discontinue the practice of prime ministerial nomination of winning consultative election candidates. The self-conscious ratification of the practice by the former opposition would validate the practice by mutuality of approval\u2014a practice whose continued observance across parties would ultimately transform it into a convention legitimated by cross-party precedent.<\/p>\n Though it would have arisen by practice and principle, the convention of prime ministerial nomination of winning consultative senatorial election candidates would have lacked agreement and declarative transparency. It would have lacked the former because we know that the Conservative government\u2019s proposed framework of consultative elections is opposed by the opposition and across many provinces.[214]<\/a> It would moreover have lacked declarative transparency because the prime minister did not speak at the time of its tabling in the House, nor has he since spoken, of the introduction of consultative senatorial elections as a way to create a convention that will bind his successors in whom to nominate to the Senate. On the contrary, the Conservative government argued before the Supreme Court in the Senate Reference <\/em>that future prime ministers would retain their discretion to choose whom to nominate to the Senate and would not<\/em> be compelled to nominate the consultative election winner.[215]<\/a> The absence of agreement and declarative transparency highlights the irregularity of this convention, though it does not in the end undermine its binding quality upon political actors. That the convention would be binding as a political matter but lacking in legal basis raises a question in need of a different answer: how, precisely, would this new convention be constitutionally deficient?<\/p>\n It is reasonable for Walters to predict that the introduction of consultative elections could in the long term rig the rules of constitutional change so as to limit the range of reform options available to political actors. After years of unbroken precedents of prime ministers nominating for senatorial appointment the winners in province-level consultative elections, future prime ministers would become expected to honour the practice, which, as I have argued above in contrast to Walters,[216]<\/a> will have matured into a constitutional convention. The origin of this convention would be traced to political necessity but the convention itself, which Walters regards as a practice, would in short course reflect an intrinsic democratic value.<\/p>\n The consequence of introducing consultative elections is even more problematic than Walters perceives. Consultative elections could admittedly tie the hands of political actors in future constitutional reforms, but that is only one of their adverse consequences. The more important one is that the consultative elections proposed by the Conservative government would have undermined the rule of law. Consultative elections themselves are not the problem; it is rather the way<\/em> the Conservative government sought to introduce them. By pursuing its reform efforts in defiance of the textually required formal amendment rules for altering the method of senatorial selection, the Conservative government attempted to circumvent the constitution\u2019s public, transparent, and predictable procedures for making changes to its basic structure. Had the Conservative government succeeded in creating its new framework for consultative elections, it would have been a constitutional amendment by stealth.<\/p>\n Constitutional amendment by stealth is an innovative but illegitimate method of constitutional change. It occurs where political actors consciously establish a new political practice whose repetition is intended to create an expectation that successors will have to comply with that practice as it matures into a constitutional convention. Constitutional amendment by stealth is driven by the political reality that formally amending the constitution is difficult if not improbable. In light of the near or actual impossibility of formal amendment, political actors choose to ignore the formal rules of the constitution and instead pursue their reform objectives through informal and irregular procedures, all with the intent of submitting their successors into compliance. Constitutional amendment by stealth, therefore, deliberately evades the public, transparent, and predictable formal amendment procedures that are designed precisely to express the informed aggregated choices of multiple political actors rather than the preferences of a few.<\/p>\n The Supreme Court of Canada\u2019s conception of the rule of law gives primacy to the constitutional text. As the Court has held, the rule of law \u201crequires that courts give effect to the Constitution\u2019s text, and apply, by whatever its terms, legislation that conforms to that text.\u201d[217]<\/a> This positivist interpretation of the rule of law is not entirely procedural. The Court has recognized that the rule of law embraces three principles: the supremacy of law over both public and private actors, the legal regulation of interactions between public and private actors, and the establishment and maintenance of positive laws that reflect an order of normative values.[218]<\/a> Importantly, however, the Court has stressed that although law must be sustained by normative values, any discovered principles should cohere with the text, not undermine it, because \u201c[t]he rule of law is not an invitation to trivialize or supplant the Constitution\u2019s written terms.\u201d[219]<\/a><\/p>\n Constitutional amendment by stealth violates the democratic values of the rule of law. It does not satisfy the rule of law\u2019s expectations of transparency, accountability, and predictability. In the most influential scholarly articulations of the rule of law, Lon Fuller, A.V. Dicey, and Friedrich Hayek each separately stress the discretion-limiting quality of the rule of law and its cornerstone feature of consistency between the law as written and as applied. For Fuller, the rule of law requires a legal system to respect at minimum eight criteria, four of which appear to be infringed in a material way by stealth amendment. First, the rule of law rejects lawmaking created \u201con an ad hoc basis.\u201d[220]<\/a> Law must instead spring from formal procedures allowing opportunities for open and meaningful deliberation about its implications. Second, the rule of law rejects the \u201cfailure to publicize\u201d the laws relied upon by political actors.[221]<\/a> When the law is not known, it cannot be properly followed, understood, or challenged as to its constitutionality. Third, the rule of law rejects the \u201cfailure of congruence between the rules as announced and their actual administration.\u201d[222]<\/a> The rules on the books should as much as possible match the rules in practice; otherwise, their discordance leads to confusion and the possibility of arbitrary state conduct.[223]<\/a> Fourth, the rule of law places a responsibility on political actors to make the law understandable to those subject to it, and to make known the laws that apply to the governors.[224]<\/a> The law should be clear so that those subject to it may comply with it.<\/p>\n Dicey and Hayek\u2019s own renderings of the rule of law also suggest that stealth amendment is problematic. Dicey writes that \u201cthe rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.\u201d[225]<\/a> Hayek echoes the same theme in defining the rule of law:<\/p>\n Stripped of all technicalities, [the rule of law] means that government in all its actions is bound by rules fixed and announced beforehand\u2014rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one\u2019s individual affairs on the basis of this knowledge.[226]<\/a><\/p>\n The rule of law requires official conduct to conform to standards established in advance of the actions taken, and it authorizes citizens both to scrutinize that official conduct and to pass judgment upon it.[227]<\/a><\/p>\n<\/a>I.\u00a0 Constitutional Amendment in Canada<\/h1>\n
<\/a><\/a>A.\u00a0 The Difficulty of Formal Amendment<\/h2>\n
<\/a><\/a>B.\u00a0 The Prevalence of Informal Amendment<\/h2>\n
<\/a>C.\u00a0 The Informal Amendment of Formal Amendment Rules<\/h2>\n
<\/a>II. Senate Reform and the Senate Reference<\/em><\/h1>\n
<\/a>A.\u00a0 Modern Senate Reform<\/h2>\n
<\/a>B.\u00a0 The Supreme Court\u2019s Senate Reference<\/h2>\n
<\/a>C.\u00a0 Democratic Values and Consultative Elections<\/h2>\n
<\/a>III. Stealth and the Rule of Law<\/h1>\n
<\/a>A.\u00a0 Consultative Elections and the Creation of Convention<\/h2>\n
1.\u00a0\u00a0\u00a0 The Constraint of Consultative Elections<\/h3>\n
2.\u00a0\u00a0\u00a0 The Actors, Objects, and Subjects of Entrapment<\/h3>\n
3.\u00a0\u00a0\u00a0 The Convention on Senator Selection<\/h3>\n
<\/a>B.\u00a0 Stealth Amendment and the Values of Formal Amendment<\/h2>\n
1.\u00a0\u00a0\u00a0 The Values of the Rule of Law<\/h3>\n