The Invisible Constitution in Comparative Perspective

British Columbia v. Imperial Tobacco Canada Ltd. 

ibid.

, para. 65.

63 

Ibid.

, para. 67.

64 

Reference re Secession of Quebec (note 14) para. 54.

65 

[2014] 1 SCR 704.

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530 

David Schneiderman

institution representative of the provinces.

66

 The Conservative government 

promised to initiate a process that would transform Canada’s upper house into 

an elected body but without amending the Constitution. This was a problem, 

as the “method of selecting Senators” was contemplated by the amending 

formula, requiring substantial provincial consent (s. 42[1]).

67

 A federal scheme 

was introduced that would authorize, in consultation with willing provinces, 

the holding of elections from which persons could then be appointed to sit in 

the Senate (in addition to limiting their tenure from eight- to nine-year terms). 

Federal lawyers argued that this did not amount to an amendment requir-

ing provincial consent, a position with which only two intervening provinces 

agreed. All others insisted that such a change could not be initiated without 

their participation.

The Supreme Court of Canada agreed that provincial consent was required 

(it should be acknowledged, which the Court did not, that the federal scheme 

could not have succeeded without provincial cooperation). The Court was not 

content merely to rest its opinion on the text of the amending formula – which 

would have sufficed – and, instead, invoked the “basic structure” and “funda-

mental nature” of the Constitution. Changes to the Senate’s “fundamental 

nature” that would “fundamentally alter the architecture of the Constitution 

required provincial consent.” The Court was not willing to accept the argu-

ment that consultative elections preserved discretion in whom the Prime 

Minister appoints. The argument, they wrote, “privilege[d] form over sub-

stance.”

68

 “While the provisions regarding appointment of senators remain 

textually untouched,” the Court continued, “the Senate’s fundamental nature 

and role as a complementary legislative body of sober second thought would 

be significantly altered.”

69

 The Court thereby informed its interpretation of 

text with reference to structure. Here is how the Court described its method: 

“The assumptions that underlie the text and the manner in which the consti-

tutional provisions are intended to interact with one another must inform our 

interpretation, understanding, and application of the text.”

70

It is hard to explain the ruling’s repeated non-textual references to “basic struc-

ture” and “fundamental nature” in light of the amending formula command  

66 

David Schneiderman, Red, White and Kind of Blue? The Conservatives and the Americaniza-

tion of Canadian Constitutional Culture (Toronto: University of Toronto Press, 2015) 191–5.

67 

The general amending formula is required for amendments concerning “the method of select-

ing Senators,” requiring, at a minimum, the consent of seven out of ten provinces representing 

more than 50 percent of the Canadian population.

68 

Reference re Senate Reform [2014] 1 SCR 704 para. 52.

69 

Reference re Senate Reform, 

ibid.

, para. 60.

70 

Ibid.

, para. 26.

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