Constitutional amendment by stealth.

• Author: Albert, Richard
• Position: III. Stealth and the Rule of Law A. Consultative Elections and the Creation of the Convention 2. The Actors, Objects, and Subjects of Entrapment through Conclusion, with footnotes, p. 705-736 - Canada - Symposium on the Senate Reference

2. The Actors, Objects, and Subjects of Entrapment

   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's 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.

   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) 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--a 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's 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's federalist safeguards to major constitutional change would be just one of many constitutional rules obviated by the Conservative government's by-then normalized practice of consultative senatorial elections.

   There is an additional point worth making: the purpose of the Conservative government's 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.

   What made the plan for senatorial elections devious is what made it brilliant: the Conservative government sought to "trap," to capitalize on the term used by Walters, (187) provincial actors into no other alternative but to ratify by future constitutional amendment the framework for an elected Senate created by consultative elections--whether 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.

3. The Convention on Senator Selection

   A convention, which is an obligation to act "in a way other than what the formal law prescribes or allows," (188) can arise from practice, agreement, declaration, or principle. (189) 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 or ex post 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.

   The study of conventions must begin with Ivor Jennings's three-part test for their creation. (190) Jennings wrote that "[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?" (191) 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 "mere practice is insufficient." (192) As to the second and third, just because political actors do act a certain way does not mean that they should; they must "believe that they ought to do so" in order for a convention to exist. (193) The creation of a convention must also "be due to the reason of the thing because it accords with the prevailing political philosophy," meaning that it "helps to make the democratic system operate," or that "it enables the machinery of State to run more smoothly." (194) And where the convention continues to operate "because it is desirable in the circumstances of the constitution, it must be created for the same reason." (195) These then are the three conditions for the creation of a convention: precedent, self-consciousness, and normativity.

   A convention may arise separately in four ways. It may arise as a result of a political practice seen as "necessary to protect some facet of the constitutional system," (196) by agreement where "the main political actors" expressly create or alter a "sort of contractual agreement" to act in a certain way, (197) from the intent to establish one "by authoritative unilateral declarations by key political actors," (198) and on principle where "a substantive obligation" exists "requiring political actors to behave in a certain way." (199) In light of the historically harsh critique of the Senate for its democratic deficit as an appointed chamber, (200) 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.

   Assume the Court had reached the opposite conclusion in the Senate Reference: 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--let us say no later than the end of 2014. With twenty Senate vacancies across seven provinces, (201) it is not unreasonable to posit that there would have been pressure on both federal and provincial political actors to fill them. (202) 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) 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)

   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 reelected, 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...