109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)

______________________________________________________________________________

THE MOST POWERFUL COURT IN THE WORLD?

JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENT IN CANADA

RICHARD ALBERT†

Abstract

The Supreme Court of Canada has become the main gatekeeper to constitutional reform
in the country. Over the years, the Court has consolidated the power to determine whether, how,
and by whom the Constitution of Canada may be amended – even where a given amendment
affects the Court’s own powers. This extraordinary power of judicial review of constitutional
reform is not unique among the world’s constitutional democracies. Yet the way the Court
exercises this power – by reviewing a reform prior to its formal proposal or enactment – puts the
Canadian Supreme Court in contention for the title of the most powerful court in the world.

Contents

INTRODUCTION—THE COURT IN THE WORLD 2

I. JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENT 4

A. Constitutional Amendment in Constitutional Democracies 5

B. Courts as Guardians of the Constitution 8

II. THE CANADIAN SUPREME COURT AND CONSTITUTIONAL AMENDMENT 11

A. Patriation and Path Dependence 12

B. The Transformative Year of 2014 15

III. THE COURT, AMENDING ACTORS, AND THE PEOPLE 22

A. The Extraordinary Power of Pre-Proposal Review 23

B. Judicial Review of the Constituent Power in Canada? 25

CONCLUSION—THE COURT IN CONSTITUTIONAL AMENDMENT 29

†
William Stamps Farish Professor in Law, Professor of Government, and Director of Constitutional Studies, The
University of Texas at Austin; Allan Rock Visiting Professor of Law, University of Ottawa (2021-22). Email:
richard.albert@law.utexas.edu. My thanks to Ryan Alford, Kristopher Kinsinger, and Maxime St-Hilaire for their
invitation to participate in their symposium on ‘The Unwritten Principle of Constitutionalism,’ where an earlier draft
of this paper was presented. My thanks also to symposium participants for their helpful comments and questions.
_________________________________________________________________

RICHARD ALBERT 1

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

INTRODUCTION—THE COURT IN THE WORLD

Modern constitutionalism has given rise to a phenomenon that Ran Hirschl has labelled the

“judicialization of mega-politics”, a now-common phrase referring to the most important matters

of political significance that constitute, define and divide polities – and that are now often

adjudicated by high courts boldly intervening into the political sphere.1 From banning political

parties in Algeria and Turkey, to ruling on prime ministerial and presidential eligibility in

Colombia and Russia, to determining the outcome of elections in Mexico and Taiwan, to hearing

disputes on fiscal policy and foreign affairs in Brazil and Israel, to evaluating the constitutional

legitimacy of the ruling regime in Fiji and South Korea, courts around the world have with

increasing frequency resolved matters that were once seen as strictly political, not at all legal.2

The Supreme Court of Canada has not escaped this trend toward the judicialization of mega-

politics. Hirschl identifies three areas where the Court has been the central actor in the

management of contentious issues better identified as political disagreements than legal

questions. One is social policy, specifically health care delivery,3 another is the domain of

restorative justice in the context of Indigenous peoples,4 and still another is the matter of popular

self-determination, namely whether and how a people can achieve recognition as an independent

state.5 Hirschl could have identified many more areas outside the purely legal sphere where the

Court has exercised its power. Today no one can reasonably disagree with the claim that the

Canadian Supreme Court is the country’s dominant actor in constitutional law and politics.

1
Ran Hirschl, ‘The Judicialization of Mega-Politics and the Rise of Political Courts’ (2008) 11 Ann Rev Pol Sci 93
at 94.
2
Ibid at 100-06.
3
Ibid at 101.
4
Ibid at 102.
5
Ibid at 103.
_________________________________________________________________

RICHARD ALBERT 2

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

Juristocracy was not fated to take root in Canada. After all, the Supreme Court was not even

created by Confederation,6 and it took many decades for it to become Canada’s final court of

appeal.7 Even after the Court became supreme in more than name alone, there was a period of

time when it operated within the judicially-constraining constitutional framework of

“Westminster-style parliamentary sovereignty”, as Hirschl observes.8 But the Court’s docket

began routinely to fill to the brim with Canadian constitutional politics when the country adopted

the Canadian Charter of Rights and Freedoms.9 The Court’s ascendancy in constitutional law

and politics derives from its high level of public support, its reasoned judgments, and the

reluctance of legislatures to invoke section 33 of the Charter (the “notwithstanding clause”) to

suspend its rulings.10

Notably, since Patriation the Supreme Court of Canada has consolidated an extraordinary

power that is distinctly more political than legal: the power to review constitutional amendments.

The Court has enhanced old powers and exercised new ones that will make it the gatekeeper to

constitutional reform in the years ahead. This power of judicial review of constitutional

amendment allows the Court to decide whether, how, and by whom the Constitution of Canada

may be amended – even where that amendment involves the Court’s own powers. This immense

power is not unique among the world’s constitutional democracies. Many other supreme or

6
The British North America Act, 1867 (since renamed the Constitution Act, 1867) authorized Parliament in Section
101 to ‘provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada’ but it
was not until 1875 that Parliament finally created the Court. See Supreme Court Act, R.S.C. 1985, c. S-26.
7
Supreme Court Act, 1949, 13 Geo VI, c 37 (Canada); see also William S Livingston, ‘Abolition of Appeals from
Canadian Courts to the Privy Council’ (1950) 64 Harv L Rev 104 (explaining the causes and consequences of the
abolition of appeals to the Judicial Committee of the Privy Council in London).
8
Hirschl, supra note 1, at 94.
9
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada
Act 1982 (U.K.), 1982, c. 11.
10
See Emmett Macfarlane, Governing from the Bench: The Supreme Court of Canada and the Judicial Role
(Vancouver: UBC Press, 2012) at 172-76; CL Ostberg & Matthew E Wetstein, Attitudinal Decision Making in the
Supreme Court of Canada (Vancouver: UBC Press, 2011) at 32; Richard Albert, ‘Constitutional Amendment by
Constitutional Desuetude’ (2014) 62 Am J Comp L 641 at 669-73.
_________________________________________________________________

RICHARD ALBERT 3

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

constitutional courts possess the power to police the amendment power. But the way the

Canadian Supreme Court exercises its power—by reviewing a reform prior to its formal proposal

or enactment—puts the Court in contention for the title of the most powerful court in the world.

Two major Supreme Court references reveal the blueprint for how the Court will exercise

this extraordinary power in future litigation challenging the validity of a proposed constitutional

amendment: the Court will determine which of the procedures in Canada’s amending formulae

political actors must use to enact any proposed amendment, and whether the amending formulae

must be used at all.11 The source of the Court’s newly consolidated powers is the doctrine and

theory of the Constitution’s “architecture”. This concept is the Court’s own innovation. Its

content and boundaries are to be determined by the Court alone, even where the proposed

amendment affects the Court itself. Whether or not we believe the Court should possess this

immense power of judicial review of constitutional reform, we must recognize that the Court

exercises it regularly, and we must understand how this power came into Court’s hands.

I. JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENT

High courts around the world have taken an active role in the making and remaking of

constitutions. For instance, the United States Supreme Court once held that a state must ratify a

constitutional amendment within a “reasonable” period of time after its proposal, even though

the Constitution makes no mention of any temporal limitation on constitutional amendment.12

Prior to the coming into force of the new South African Constitution, the Constitutional Court

11
Reference re Senate Reform, [2014] 1 SCR 704 [‘Senate Reform Reference’]; Reference re Supreme Court Act,
[2014] 1 SCR 433 [‘Supreme Court Act Reference’].
12
Dillon v Gloss, 256 US 368 (1921) at 375; Richard Albert, ‘Temporal Limitations in Constitutional Amendment’
(2016) 21 Rev Const Stud 37 at 47.
_________________________________________________________________

RICHARD ALBERT 4

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

declared that the country’s first draft for a new constitution was unconstitutional.13 And the

Honduran Supreme Court has ruled, remarkably, that an unamendable constitutional provision

on presidential term limits is unconstitutional, and therefore freely amendable. 14 These are

extraordinary judicial actions. Yet they have become more common than not as courts have

adopted the now global doctrine of unconstitutional constitutional amendment.

A. Constitutional Amendment in Constitutional Democracies

Before turning to how and on which bases an amendment may be declared unconstitutional,

it is important to understand how constitutions structure their rules of constitutional amendment.

There are three major questions we must answer for a clear understanding of the operation of

constitutional amendment rules: who among political actors has the power to initiate an

amendment, what are the methods by which those political actors may amend the constitution,

and what are the conditions under which the amendment power may be disabled?

On the first question – who has the power to initiate an amendment? – the choice is binary:

the initiation power belongs either to a single actor or to more than one. For example, the Irish

Constitutions assigns the initiation power exclusively to the national legislature, whose two

houses must pass the amendment bill as a specially designated Act before it is put before the

people in a referendum.15 In contrast, the Canadian Constitution assigns the initiation power to

more than one actor; either the national legislature or any of the provincial assemblies may

initiate a constitutional amendment under three of Canada’s five amendment procedures.16

13
Certification of the Constitution of the Republic of South Africa, 1996, Case CCT 23/96 (6 September 1996).
14
Leiv Marsteintredet, ‘The Honduran Supreme Court Renders Inapplicable Unamendable Constitutional
Provisions’ (May 1, 2015) Int’l J Const L Blog, at: http://www.iconnectblog.com/2015/05/Marsteintredet-
onHonduras.
15
Constitution of Ireland, art 46 (1937).
16
Constitution Act, 1982, being Schedule B to the Canada Act, 1982, at ss 38, 41, 43, 46 (UK).
_________________________________________________________________

RICHARD ALBERT 5

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

Just as the number of amendment initiators may vary, so too may the number of amendment

procedures available to them. For example, some constitutions codify a single method of

amendment that may be used to amend the entirety of the constitution. Consider the Japanese

Constitution: it codifies only one comprehensive amendment procedure – proposal by a

supermajority of the national legislature, ratification by a simple majority in a national

referendum, and promulgation by the Emperor – and this may be used to amend anything in the

text.17 Others codify more than one method that has the same comprehensive scope. To illustrate,

the French Constitution codifies multiple methods, and each may be used to amend any

amendable part of the text: an amendment becomes valid only where either the President of the

Republic or any member of the national legislature introduces an amendment, both houses of the

legislature approve it, and the people subsequently ratify it in a national referendum.18

Still other constitutions create multiple methods of amendment, each limited in its use to

specifically enumerated parts or principles of the constitution. This is the case in Canada, where

each of the five amendment procedures is designated for use on a different part or principle of

the Constitution. The unilateral provincial formula authorizes a provincial assembly to amend its

provincial constitution by passing a law in the normal course of the legislative process.19 The

unilateral federal formula authorizes Parliament to pass a simple law to amend the Constitution

as to matters of federal executive government, or the Senate and House of Commons, subject to

any limitations on this power in another formula.20 Under the regional amendment formula,

Parliament and all affected provincial assemblies may adopt an amendment to alter provincial

17
Constitution of Japan, art 96 (1947).
18
Constitution of France, art 89 (1958). There is an exception to this rule: where Parliament convened in Congress
ratifies a government amendment bill by three-fifths, the President of the Republic can bypass the referendum
requirement. Ibid.
19
Constitution Act, 1982, supra note 16, at s 45.
20
Ibid at s 44.
_________________________________________________________________

RICHARD ALBERT 6

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

boundaries or to change the use of English or French within a province.21 The fourth method –

the general amending formula – requires Parliament to approve the amendment along with two-

thirds of the provincial assemblies whose aggregate population represents at least fifty percent of

the total provincial population.22 This formula is the Constitution’s default procedure and it must

also be used for amendments involving certain matters like provincial representation in the

House of Commons and the Senate, the powers of the Senate and the way Senators are selected,

and the creation of new provinces.23 Finally, the unanimity formula requires Parliament and each

of the provincial assemblies to approve an amendment; this procedure applies to amendments

involving a number of specifically designated items including the monarchy, the composition of

the Supreme Court of Canada, and the procedures for amending the Constitution.24

The power to initiate an amendment may sometimes be disabled by the constitution itself. In

some cases, constitutions deny political actors the power to amend the constitution in times of

war, declared emergency, or even regency or succession.25 Constitutions may also impose floors

or ceilings in the time allotted to debate an amendment proposal; the failure to abide by these

restrictions presumably leads to the expiration of the proposal, in which case political actors

would have to relaunch the amendment process from the very beginning.26 We also see

constitutional designers disable the initiation power during the immediate aftermath of a failed or

successful amendment, or following the successful adoption of a new constitution.27

21
Ibid at s 43.
22
Ibid at s 38.
23
Ibid at s 42.
24
Ibid at s 41.
25
See, eg, Constitution of Estonia, s 161 (1992); Constitution of Luxembourg, art 115 (1868); Constitution of
Belgium, art 197 (1831).
26
See, eg, Constitution of Costa Rica, art 195 (1949); Constitution of South Korea, art 129 (1948).
27
See Constitution of Greece, art 110 (1975); Constitution of Cape Verde, art 309 (1980).
_________________________________________________________________

RICHARD ALBERT 7

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

The most direct way to disable the amendment power is to entrench an unamendable rule. An

unamendable constitutional provision is impervious to the legal procedures of constitutional

amendment, even where an overwhelming supermajority of amending actors may wish to amend

it.28 Constitutional designers have made all manner of things unamendable. For example, they

have prohibited amendments to secularism,29 republicanism,30 democracy,31 fundamental rights

and freedoms,32 political pluralism,33 national borders,34 the separation of powers,35 federalism36

and international law.37 The standard design of modern constitutions today appears to suggest

that unamendability is a feature of over half of all new constitutions.38

B. Courts as Guardians of the Constitution

The many facets of constitutional amendment rules have raised important questions in law.

Yet what was once a paradoxical question with no definitive answer has now been answered

definitively in the affirmative: can a constitutional amendment be unconstitutional? Though we

may disagree on whether courts should have this power, it is now undeniable that many indeed

do. When a constitutional text codifies an unamendable rule, courts will evaluate amendments

for conformity with that unamendable rule. The body judging the constitutionality of an

amendment need not necessarily be a court, but in the standard practice of constitutional

democracies it most always is. High courts have generally been the ones to review the

28
See Richard Albert, ‘Constitutional Handcuffs’ (2010) 42 Ariz St LJ 663 at 665-66.
29
Constitution of Turkey, art 4 (1982).
30
Constitution of Cape Verde, art 313(1)(b) (1980).
31
Basic Law of Germany, art 79(3); ibid. at art 20(1) (1949).
32
Constitution of Portugal, art 288(d) (1976).
33
Constitution of Algeria, art 178 (1989).
34
Constitution of Ukraine, art 157 (1996).
35
Constitution of Greece, art 110(1) (1975).
36
Constitution of Brazil, art 60(1) (1949).
37
Constitution of Switzerland, art 194(2) (1999).
38
See Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford:
Oxford University Press, 2017) at 21.
_________________________________________________________________

RICHARD ALBERT 8

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

constitutionality of constitutional amendments, often even invalidating amendments on the basis

of unwritten constitutional principles identified by the Court with no clear textual referent.

Courts have taken two basic approaches to reviewing the constitutionality of an amendment:

a substantive approach inquiring whether the amendment itself is consistent with the

constitution, and a procedural approach that asks only whether the amendment was properly

adopted.39 The former is broad and authorizes a review of the amendment from top to bottom;

the latter is narrow and limited to a minimalist look at the procedural correctness of the

amending process. Whether courts have taken one or the other approach, their stated intent has

been to protect the constitution from political actors who would violate its core commitments and

essential features. Stated another way, courts have declared themselves the guardians of the

constitution.

The substantive approach itself comes in two forms: with or without an unamendable rule.

Where a constitution entrenches a provision against amendment, courts have invalidated a

constitutional amendment for violating that unamendable rule. For example, the Constitutional

Court of the Czech Republic declared unconstitutional an amendment that sought to shorten the

term of the Chamber of Deputies on the theory that it violated the Constitution’s unamendable

rule that “any changes in the essential requirements for a democratic state governed by the rule

of law are impermissible”,40 a rule the Court interpreted as prohibiting the shortening of terms.41

39
The content/process distinction is susceptible to the important critique that one blurs into the other but I set it
aside for our narrow purposes of understanding how a court can invalidate a constitutional amendment. For a longer
discussion of the distinction, see Richard Albert, ‘Constructive Unamendability in Canada and the United States’
(2014) 67 Sup Ct L Rev (2d) 181 at 193-94.
40
Constitution of the Czech Republic, art 9(2) (1993).
41
2009/09/10 - Pl. ÚS 27/09: Constitutional Act on Shortening the Term of Office of the Chamber of Deputies,
online: http://www.usoud.cz/en/decisions/20090910-pl-us-2709-constitutional-act-on-shortening-the-term-ofoffice-
of-the-chamber-of-de-1.
_________________________________________________________________

RICHARD ALBERT 9

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

Even where a constitution does not entrench any provision against amendment, courts

have nonetheless held that certain amendments violate the “basic structure” of the constitution.

India offers the most famous example of a court striking down an amendment despite there being

no textual prohibition on any amendment. In a controversial judgment,42 the Indian Supreme

Court invoked the “basic structure” doctrine to invalidate an amendment whose key passages

declared that “no amendment of this Constitution … shall be called into question” and moreover

that “for the remove of doubts, it is hereby declared that there shall be no limitation whatever on

the constituent power of Parliament to amend by way of addition, variation or repeal the

provisions of this Constitution under this article.”43 For the Court, this amendment would have

destroyed the very foundations of the Constitution, rooted as it is in the separation of powers.44

The procedural approach is narrow by comparison. As a constitutional design, this

procedural approach is intended to limit courts to reviewing amendments for conformity with the

amendment process alone. This constitutional design purports to prohibit courts from evaluating

the actual content of an amendment and instead to restrict them to verifying that an amendment

has gone through all of the steps constitutionally-required for its ratification. For example, the

Turkish Constitution authorizes the Constitutional Court to review the constitutionality of

amendments but it specifies that “constitutional amendments shall be examined and verified only

with regard to their form”45, meaning that only procedural review is possible. The Constitution

makes clear that “the verification of constitutional amendments shall be restricted to

consideration of whether the requisite majorities were obtained for the proposal and in the ballot,

42
Minerva Mills Ltd v Union of India, 1980 AIR 1789, 1981 SCR (1) 206, SCC (2) 591, online:
http://www.indiankanoon.org/doc/1939993.
43
Constitution (Forty-Second Amendment) Act, 1976, s 55.
44
Minerva Mills, supra note 42.
45
Constitution of Turkey, art 148 (1982).
_________________________________________________________________

RICHARD ALBERT 10

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

and whether the prohibition on debates under expedited procedure was observed.”46 This

limitation was the subject of a recent case in Turkey. The Constitutional Court was asked to

review the substantive constitutionality of controversial amendment concerning parliamentary

immunity, but the Court declined the request on the basis of this procedural restriction.47

Supreme and constitutional courts like these have taken to the doctrine of unconstitutional

constitutional amendment to defend the constitution from amendments they believe would

undermine the nature of the constitution and its fundamental presuppositions and commitments.

This doctrine is not limited to a handful of countries. It has spread across the globe and is now

recognized in one form or another in many civil and common law countries, in parliamentary and

presidential systems and in the global north and south, from Argentina to Austria, Belize to

Brazil, Greece to Hungary to Italy, Peru to Portugal, and from South Africa to Switzerland to

Taiwan.48 There are a few holdouts around the world, including the United States, where the

political culture of popular sovereignty denies that an amendment can ever be unconstitutional.49

II. THE CANADIAN SUPREME COURT AND CONSTITUTIONAL AMENDMENT

The Supreme Court of Canada has never invalidated a constitutional amendment, at least not

in the same way we have seen supreme and constitutional courts elsewhere exercise this

extraordinary power. But the Canadian Supreme Court has a long history of using its reference

46
Ibid.
47
Decision of the Constitutional Court of the Republic of Turkey, June 3, 2016, E 2016/54; K 2016/117, Resmi
Gazete [Official Gazette], June 9, 2016, No 29737 (“A Law of Amendment adopted through this procedure cannot
be at all the subject of judicial (constitutional) review in terms of its content; the procedural review is possible only
within the framework specified by Art. 148.”) (translated by Ali Acar).
48
See Yaniv Roznai, ‘Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional
Idea’ (2013) 61 Am J Comp L 657 at 670-710.
49
See Richard Albert, ‘American Exceptionalism in Constitutional Amendment’ (2016) 69 Ark L Rev 217 at 242-
52.
_________________________________________________________________

RICHARD ALBERT 11

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

jurisdiction to advise political actors on how and whether to amend the Constitution.50 This

reference authority to issue an advisory opinion on a constitutional amendment prior even to its

formal proposal or enactment may well give the Court more power than many others possess.

The year 2014 featured two of these references – arguably two of the most important ones in

modern Canadian constitutional politics – but the single-most important one was issued in 1981.

A. Patriation and Path Dependence

Let us now return to the patriation of the Constitution of Canada. The essence of the

question before the Court was whether the federal government was bound by law to secure the

consent some, most, all or none of the provinces before undertaking a major constitutional

reform in Canada.51 The Court ultimately advised by a margin of 7-2 that there was no judicially

enforceable law requiring the federal government to secure the agreement of the provinces.52 The

Court also advised, by a margin of 6-3, that there exists a legally unenforceable constitutional

convention requiring substantial provincial consent before the federal government may seek to

amend the Constitution on a significant matter affecting federal-provincial relations.53

Conventions, the Court wrote, “are not judge-made rules” but are rather “precedents established

by the institutions of government themselves.”54 Conventions facilitate the operation of the

Constitution “in accordance with the prevailing constitutional values or principles of the

period”55, and their violation entails political consequences, not legal ones, since courts

50
For more on the Court’s reference jurisdiction, see Kate Puddister, Seeking the Court’s Advice: The Politics of the
Canadian Reference Power (Vancouver: UBC Press, 2019); Carissima Mathen, Courts Without Cases: The Law and
Politics of Advisory Opinions (Oxford: Hart Publishing, 2020).
51
Re: Resolution to amend the Constitution, [1981] 1 SCR 753 [‘Patriation Reference’].
52
Ibid at 809.
53
Ibid at 910-11.
54
Ibid at 880.
55
Ibid.
_________________________________________________________________

RICHARD ALBERT 12

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

ordinarily only recognize but do not enforce the understandings and norms that structure the

interactions of political actors.56

What is most remarkable about the Patriation Reference is that the ruling exercised what

seems to have been powerful political effect on amending actors despite its formally advisory

legal function. In the high stakes of constitution-remaking at the time – especially with the

continuing risk of Quebec’s secession – we might have expected the force of political will to

overrun a mere advisory opinion. Then-Prime Minister Pierre Trudeau had threatened to go over

the heads of the provinces directly to the people in a national referendum that would have

legitimated the new constitution as the people’s own, not Ottawa’s alone.57 The Court’s answer

to the question whether the federal government was required to secure the consent of provinces

for this major reform compelled the federal government to drop its plan to proceed unilaterally

without provincial consultation and consent,58 and instead to proceed multilaterally consistent

with the Court’s declaration that “a substantial measure of provincial consent is required”.59

The federal government’s initial preference for a referendal route to Patriation echoed the

core of its proposal for an amendment formula. Trudeau had proposed in his “People’s Package”

that the Constitution would be amendable in one of two ways: in accordance with the Victoria

Formula or, in the event of provincial stalemate on a proposed amendment, by referendum.60

56
Ibid at 882-83. For an analysis challenging this conventional view of common law courts and constitutional
conventions, see Farrah Ahmed, Richard Albert and Adam Perry, ‘Judging Constitutional Conventions’ (2019) 17
Int’l J Const L 787.
57
Peter H Russell, ‘The End of Mega Constitutional Politics in Canada’ (1993) 26 PS: Pol Sci & Pol 33 at 34;
Richard Albert, ‘Trudeau’s Threat: The Referendum at Patriation’ in Noura Karazivan and Jean LeClair, eds, The
political and constitutional legacy of Pierre Elliott Trudeau / L’héritage politique et constitutionnel de Pierre Elliott
Trudeau (Toronto, Ontario : LexisNexis Canada, 2020).
58
Peter H. Russell, ‘Constitution’ in John C Courtney & David Smith, eds, The Oxford Handbook of Canadian
Politics (Oxford: Oxford University Press, 2010) 21 at 30.
59
Ibid at 904-05.
60
See Richard Simeon, ‘An Overview of the Trudeau Constitutional Proposals’ (1981) 19 Alberta L Rev 391 at 391-
92. The Victoria Formula refers to the amendment procedure in the Victoria Charter, a package of constitutional
_________________________________________________________________

RICHARD ALBERT 13

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

Trudeau had hoped to use the referendum as a way out of the stalemate. But he instead heeded

the Court’s advice in the Patriation Reference – advice that he and other amending actors took as

obligatory. Bruce Ackerman and Robert Charney are right that Trudeau missed an opportunity

when he laid down his arms in the face of the Court’s opinion: “the prime minister conceded”,

they write, “that it was right for the courts to decide whether the federal Parliament did indeed

speak for We the People of Canada.”61 He could have – and, in their view, should have – called a

national referendum on the new constitution, both to break the stalemate and to give Canada its

democratic moment – a moment that continues to elude Canadians decades later.62

Trudeau’s choice to take the non-referendal path to Patriation and instead to accept the

Court’s advice has had three important consequences for constitution-making and -remaking in

Canada. First, it set an important precedent that the Court would be consulted on matters of

constitutional reform when the change involved the balance of federal and provincial powers on

a national scale. Second, the political choice to consult the Court in the reference procedure and

to abide by its ruling in this crucial constitutional dispute at Patriation entailed the collateral

consequence that the Court’s advice would be followed in all but the most extraordinary

circumstances. We have yet to see any such circumstances, suggesting that the precedent may

have matured into a convention of acquiescence to or acceptance of the Court’s advice when

there are questions about the appropriate procedures to be followed to enact constitutional

reform. And third, Trudeau’s choice to accept the Court’s advice bolstered the standing of the

Court as an institution with a legitimate role to play in any effort to reform the Constitution of

changes considered in 1971 by the country’s First Ministers. For a brief description of the Victoria Formula, see
Victoria Charter, Centre for Constitutional Studies, July 4, 2019, online:
https://www.constitutionalstudies.ca/2019/07/victoria-charter.
61
Bruce A Ackerman & Robert E Charney, ‘Canada at the Constitutional Crossroads’ (1984) 34 U Toronto LJ 117
at 128.
62
Ibid at 129.
_________________________________________________________________

RICHARD ALBERT 14

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

Canada. When Trudeau ceded his ground, the Court grew in its status and importance, both real

and perceived. Going forward, no major national constitutional reform involving federal and

provincial powers in Canada could occur without the Court weighing in on both whether it could

be made and, if so, how the constitution requires that reform to be made.

B. The Transformative Year of 2014

Sixteen years after Patriation, political actors returned again to the Court in another major

moment in the reconstruction of the country’s rules of constitutional reform. This time it was for

the Secession Reference, a constitutional controversy concerning the process by which a

province could secede from the country.63 Importantly, though, it was not the Court’s own choice

to enter this political thicket; it was rather the choice of political actors to go invite the Court

again to give its advice how, if at all, Quebec could leave Confederation in accordance with the

Constitution. The Court again delivered a judgment that gave something to both sides in the

dispute. Federalists and nationalists could each claim a victory from the reference. The Court’s

advisory opinion was a carefully constructed legal-political framework within which political

actors could negotiate the terms of a province’s exit from Canada.

The Court’s advice amounted to rewriting the rules of constitutional amendment in Part V of

the Constitution Act, 1982.64 The Court decided unanimously that any formal amendment in

connection with a province’s secession from the country must be governed by a duty to negotiate

and by certain unwritten constitutional principles, namely federalism, democracy,

constitutionalism and the rule of law, and respect for minority rights.65 These principles are

nowhere mentioned in the Constitution as constraints on political actors in constitutional reform.

63
Reference re Secession of Quebec, [1998] 2 SCR 217 [‘Secession Reference’].
64
See Richard Albert, ‘The Difficulty of Constitutional Amendment in Canada’ (2015) 53 Alberta L Rev 85 at 104.
65
Secession Reference, supra note 62, at paras 88-105.
_________________________________________________________________

RICHARD ALBERT 15

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

Stated another way, the Court reached outside the codified rules of constitutional amendment –

rules that are intended to constitute a complete code for constitutional amendment – to impose

conditions on how political actors are to formalize a provincial secession in law and politics.

Ordinarily under Part V, any change to the rules of constitutional amendment must be made in

conformity with the unanimity formula.66 The Court effectively amended the Constitution in

defiance of the constitutional text’s contrary rules about how that may be done. And yet political

actors on both sides have found victory in the Court’s judgment. This is evidence both that

political actors accept the Court’s advice and that they embrace the Court’s role on such a

fundamental matter of political self-understanding as the secession of a province from Canada.

Another sixteen years later, in 2014, political actors turned again to the Court to resolve two

disputes on the meaning and scope of Part V of the Constitution. Both the Senate Reform

Reference and the Supreme Court Act Reference must be read together because they reflect the

Court’s consolidation of a new power whose seeds were planted in the Patriation Reference and

reinforced in the Secession Reference: the power to determine whether, how, and by whom the

Constitution may be amended, even where that amendment affects the Court’s own powers.

There were many questions before the Court in the Senate Reform Reference but the central

one was “whether 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”.67 The Conservative government of the day had argued that it could implement this

reform using its unilateral federal amendment power, though opponents suggested that

conformity with a more stringent standard was required, either the general amending formula or

the unanimity formula. The Court rejected both of the government’s arguments: the first that

66
Constitution Act, 1982 at s 41.
67
Senate Reform Reference, supra note 11, at para 49.
_________________________________________________________________

RICHARD ALBERT 16

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

consultative elections would not amount to an amendment to how Senators are selected; and the

second, in the alternative, that Parliament can pass the amendment using its power under Section

44. As a result, the Conservative government could not proceed with its simple parliamentary

majority to enact such a transformative change to the Constitution.68

The Conservatives had proposed on two earlier occasions to introduce consultative elections

for Senate vacancies.69 Each time the mechanism was the same: consultative provincial and

territorial elections would be held to gauge voter preferences to fill Senate vacancies as they

arose across the country. The Senate Appointment Consultations bill, introduced in 2007, 70 was

not as detailed as the Senate Reform Bill, which was introduced in 2011 71; the latter created an

intricate framework for the provincial and territorial elections contemplated in the former. The

Senate Reform bill had one overriding objective in mind: to democratize Senator selection.

Under the bill, “[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”72, with the list of

nominees “to be determined by an election held in the province or territory”73. Where a province

or a territory has adopted the electoral framework, the prime minister “must consider names from

the most current list of Senate nominees selected for that province or territory” when

“recommending Senate nominees to the Governor General”74.

68
Ibid at paras 68, 70.
69
For a discussion and critique of the Senate reform proposals, see Fabien Gélinas and Léonid Sirota,
‘Constitutional Conventions and Senate Reform’ (2013) 5 Revue québécoise de droit constitutionnel 107; Richard
Albert, ‘Constitutional Amendment by Stealth’ (2015) 60 McGill LJ 673.
70
Bill C-20, An Act to provide for consultations with electors on their preferences for appointments to the Senate,
2nd Sess, 39th Parl, 2007 (first reading 13 November 2007) [Senate Appointment Consultations bill].
71
Bill C-7, An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate
term limits, 1st Sess, 41st Parl, 2011, cls 4–5 (first reading 21 June 2011) [Senate Reform bill].
72
Ibid at Schedule 1, Part 1, s 1.
73
Ibid at Schedule 1, Part 1, s 2.
74
Ibid at cl 3.
_________________________________________________________________

RICHARD ALBERT 17

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

According to the Court, the government’s argument that consultative elections for Senate

vacancies would not amount to an amendment to the Canadian Constitution “privileges form

over substance”75. The Court rejected the formalist argument that the Constitution is amended

only where its text is altered.76 An amendment to the Constitution, the Court explained, occurs in

this context were “the Senate’s fundamental nature and role as a complementary legislative body

of sober second thought would be significantly altered”77, as no doubt would have been the

consequence of moving to consultative elections. Another strike against the government was the

plain reading of Part V, which requires the general default amendment formula for changes to

“the method of selecting senators”78. This was overwhelming support for the argument that any

modification to the modalities of senatorial selection would require a major formal amendment.

The Court made a broader point that has solidified its power to review constitutional

reforms. In its ruling, the Court revived a concept of objectively undefinable quality that will

keep the Court at the centre of any future effort to amend the Constitution on virtually any issue.

Here is the Court explaining this key concept of constitutional architecture:

[T]he Constitution should not be viewed as a mere collection of discrete

textual provisions. It has an architecture, a basic structure. By extension,

amendments to the Constitution are not confined to textual changes. They

include changes to the Constitution’s architecture.79

The idea of the Constitution’s “architecture” has created wide latitude for the Court to interpret,

police, and indeed to overrule constitutional amendments, both proposed and passed. The reason

75
Senate Reform Reference, supra note 11, at para 52.
76
Ibid.
77
Ibid.
78
Constitution Act, 1982, at s 42.
79
Senate Reform Reference, supra note 11, at para 27.
_________________________________________________________________

RICHARD ALBERT 18

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

why is clear by implication: only the Court has the authority to identify what forms part of that

architectural structure. Litigants may make the case that this or that is essential to the

Constitution’s architecture, but the Court decides as a final matter whether and how an

amendment would destabilize or demolish that structure. And where a constitutional change has

a profound effect, the Court can impose limits on the amendment power, either to subject the

amendment to a higher amendment formula than political actors had hoped to, or to unearth

unwritten principles according to which any change must conform, or to disallow it altogether.80

Just as the Patriation Reference was decisive in Trudeau’s choice to abide by the Court’s

non-binding advice, so too the Senate Reform Reference was decisive for the immediate

aftermath. The Conservative majority gave up on its plan to reform the Senate when the Court

advised that the onerous general default formula would have to be used create the framework for

consultative elections rather than the considerably easier unilateral federal formula that required

only a simple majority of Parliament. At the time, the Conservative Party controlled Parliament.

Clearly the Party would have preferred to use the easier unilateral amendment formula. We hear

echoes of the Patriation Reference in the Senate Reform Reference: it set the precedent for the

Court to decide how political actors may lawfully and legitimately amend the Constitution.

The Supreme Court Act Reference, issued in the same year as the Senate Reform Reference,

shows that the Court will now also decide whether, how, and by whom the Constitution may be

amended even where the proposed amendment affects the Court’s own powers.81 There were two

issues, both related to an appointee’s eligibility for a seat on the Supreme Court. The first issue

asked whether a judge on the Federal Court of Appeal and formerly, though not presently, a

80
For more on this point, see Emmett Macfarlane, ‘Unsteady Architecture: Ambiguity, the Senate Reference, and
the Future of Constitutional Amendment in Canada’ (2015) 60 McGill LJ 883.
81
This discussion is adapted from Richard Albert, ‘The Theory and Doctrine of Unconstitutional Constitutional
Amendment in Canada’ (2015) 41 Queen’s LJ 143 at 173-76.
_________________________________________________________________

RICHARD ALBERT 19

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

qualified Quebec attorney for at least ten years could qualify as a Quebec judge under the

Supreme Court Act, which reserves three seats for judges appointed “from among the judges of

the Court of Appeal or of the Superior Court of the Province of Quebec or from the advocates of

that Province”.82 The reference’s answer was no. The Court reasoned that the law’s requirement

that the appointee be a qualified Quebec attorney means that the appointee must be a member of

the Quebec bar at the time of the appointment with at least ten years standing.83 The second issue

concerned whether, in light of the Court’s answer to the first, Parliament could pass a law

remedying that ineligibility and thereby authorizing the appointment of a former member of the

Quebec bar to the Court.84 The reference again answered no.85

The Supreme Court Act Reference may be described as Canada’s Marbury moment, a

reference to Marbury v. Madison,86 the famous case in which the United States Supreme Court

declared itself not only the authoritative interpreter of the Constitution but also the ultimate

arbiter of its own jurisdiction. Both cases are examples of self-entrenchment. In the Supreme

Court Act Reference, the Canadian Supreme Court positioned itself as the only body that can

interpret the constitution as to itself. One may reasonably argue that this raises a conflict of

interest. On the other hand, one could justify the Court’s view with reference to Section 52 of the

Constitution Act, 1982, which makes the Constitution of Canada supreme, and by implication the

Court’s interpretation of it as well.87 What the Court ruled in the Supreme Court Act Reference

82
Supreme Court Act Reference, supra note 11, at paras 1, 7.
83
Ibid at paras 4, 107.
84
Ibid at paras 5, 7.
85
Ibid at paras 5, 107.
86
5 US (1 Cranch) 137.
87
Constitution Act, 1982, s 52. Its text states that ‘the Constitution of Canada is the supreme law of Canada, and any
law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or
effect.’
_________________________________________________________________

RICHARD ALBERT 20

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

can be stated plainly: Parliament alone cannot amend the Supreme Court Act, except for routine

amendments that do not affect the essential characteristics of the Court.

The significance of this decision cannot be overstated.88 The Court has effectively

transformed a parliamentary law into a constitutional statute that now forms part of the

Constitution of Canada. This caused the “essential features of the Court” to “migrate” into the

Constitution, where they are now immune from anything less than multilateral constitutional

change.89 As a technical matter, it is true that the Court did not entrench the Supreme Court Act

in the list of Acts in the schedule to the Constitution Act, 1982. But as a practical matter, the

Court has informally entrenched itself and its essential features as an institution in the

Constitution of Canada. The composition of the Supreme Court, wrote the majority, cannot be

subject to simple parliamentary legislative amendment.90 Any change to the Court’s

composition, which for the Court includes a change to rules for the three Quebec appointments,

must be made using the unanimity amendment procedure codified in Section 41.91 Otherwise

Parliament could unilaterally amend the essential features of the Court, and thereby risk

undermining the Court’s independence, its function in the separation of powers, and its role as

the authoritative interpreter of the Constitution. As the Court explained, the “essential features of

the Court are constitutional[ly] protected” and any changes to the Court’s composition requires

‘the unanimous consent of Parliament and the provincial legislatures”.92 Parliament therefore

cannot exercise the power to make transformative constitutional changes unilaterally, neither to

88
For a comprehensive discussion of this judgment, see Carissima Mathen & Michael Plaxton, The Tenth Justice:
Judicial Appointments, Marc Nadon, and the Supreme Court Act Reference (Vancouver: UBC Press, 2020).
by Carissima Mathen (Author)
89
See Peter Hogg, ‘Senate Reform and the Constitution’ (2015) 68 SCLR (2d) 591 at n 41.
90
Supreme Court Act Reference, supra note 11, at para 74.
91
Ibid.
92
Ibid.
_________________________________________________________________

RICHARD ALBERT 21

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

the Court as an institution of central importance to Canadian federalism nor to Quebec’s

historically guaranteed representation.93

Both of these 2014 references locate enormous interpretive power within the Court when it

comes to the future of constitutional amendment in Canada. The two key concepts are

“constitutional architecture” and the Court’s “essential features”, neither of which is codified in

Part V nor defined anywhere with specificity – but both of which remain to be elaborated in the

future by the Court itself in the course of its constitutional interpretation. The lesson from these

2014 references is that political actors cannot today make an amendment that affects either of

these concepts without first seeking and obtaining the approval of the Supreme Court of Canada.

III. THE COURT, AMENDING ACTORS, AND THE PEOPLE

When compared to the extraordinary practice in high courts around the world to invalidate

constitutional amendments, what happens in Canada seems routine, if not mundane. After all, the

Canadian Supreme Court has never actually done what many of its foreign counterparts have

dared to do: to strike down a constitutional amendment. Instead, the Court hears references from

Parliament and provincial assemblies on constitutional amendments political actors may wish to

introduce, and advises them on whether and how those amendments may be made to the

Constitution. This is far from the antagonistic posture that characterizes relationships between

courts and legislatures around the world when it comes to constitutional amendment. How, then,

could we possibly describe the Supreme Court of Canada one of the most powerful in the world?

93
Ibid at para 99.
_________________________________________________________________

RICHARD ALBERT 22

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

A. The Extraordinary Power of Pre-Proposal Review

The answer resides in when the Canadian Supreme Court reviews the constitutionality of

amendments in comparison to when other courts perform the same task. In the typical

substantive and procedural approaches to invalidating constitutional amendments,94 courts

review amendments after they have been enacted. Amending actors have already introduced,

debated, ratified, and promulgated the constitutional amendment that a court only then

determines is inconsistent with the constitution’s content-based restrictions, in the case of

substantive review, or its process for adopting the amendment, in the case of procedural review.

In contrast, the Canadian approach is to review both the substantive and procedural

constitutionality of an amendment before it is enacted, or even proposed, as an amendment.

This is an important difference. On the one hand, it is remarkable that amending actors

would acquiesce to the decision of courts around the world to nullify the choice of the people

who have spoken directly or through their elected representatives to assemble the required

majorities in order to amend their constitution. In our modern age of constitutionalism, we

understand constitutional democracy to be rooted in popular sovereignty, and it is therefore an

exceptionally powerful show of force for a court to declare the people’s choice unconstitutional.

On the other hand, it is perhaps even more remarkable for a court to exercise the power to

determine when the people can choose, how they choose, and whether they can choose at all to

amend their constitution, acting directly or indirectly through their elected representative. It is for

this reason that the Canadian Supreme Court may be more powerful than others when it comes to

the judicial review of constitutional amendments – even though the Court has yet to do it once.

94
See supra Section IB.
_________________________________________________________________

RICHARD ALBERT 23

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

In the Patriation Reference, the Court issued instructions to amending actors on how to

make the constitutional change they were envisioning. We can interpret this advisory opinion as

a form of pre-proposal procedural review. The Court gave advice on the process political actors

could use to lawfully and legitimately patriate the Constitution. It was also a form of pre-

proposal substantive review because the procedure the Court advised amending actors to follow

was governed by the content of the constitutional reforms they were proposing to make. Had the

constitutional changes not involved federal-provincial relations as they did, the Court would not

have given the same instructions on how amending actors should proceed. The Court’s pre-

proposal review of the patriation package was therefore both substantive and procedural.

The same is true of the Secession Reference, the Senate Reform Reference, and the Supreme

Court Act Reference. In each of these, the Court was asked for advice on how amending actors

could make major changes to the Constitution before the changes had even been formally

proposed. How a province can secede from the country, how to reform the Senate, and how to

change the structure of the Court – these were the key questions in each reference, respectively,

and for each the Court laid out the process the Constitution requires amending actors must take

to make those changes. In each case, the Court was responsible for determining what the

Constitution requires to enact the proposed reforms. The power to review the constitutionality of

an amendment before it is even proposed, to determine how that amendment must be enacted,

and even to decide whether the amendment may be made at all is qualitatively different from the

power many courts abroad exercise when they strike down an amendment.

There are two reasons why the Supreme Court of Canada’s power of pre-proposal review

may make it more powerful than other courts that have actually invalidated amendments. One

reason is that the Court can achieve the same result as other courts without having to declare an
_________________________________________________________________

RICHARD ALBERT 24

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

amendment unconstitutional. Although the formal process is different – elsewhere courts

ordinarily declare an amendment unconstitutional after it has been enacted but in Canada the

amendment is reviewed before it is even proposed – the functional effect is the same: the Court

decides what amending actors can do, how they can do it, and whether they can do it at all.

The second reason builds on the first: the Court in Canada can achieve the same functional

end without having to nullify the expressed will of the people and their elected representatives.

This makes it less likely that the Court will fear the consequences of defying popular will and

accordingly restrain itself in the interest of self-preservation. It makes it more likely that the

Court will feel liberated to review the amendment proposal on the merits without worrying about

the fallout from striking down an amendment that had already been promulgated with the support

of the people. The Court is therefore relieved of the pressure it may otherwise feel to validate a

people-powered amendment – one that has survived the veto gates in the amendment process and

by the fact of its very survival enjoys a compelling measure of legal and sociological legitimacy.

This frees the Court to do what other courts do, but without incurring the high cost of counter-

majoritarian judicial review that confronts any court daring to invalidate an amendment.

B. Judicial Review of the Constituent Power in Canada?

The doctrine of unconstitutional constitutional amendment is rooted in the theory of

constituent power. Derived from French political theorist Emmanuel Joseph Sieyès, the theory

holds that the power to make a new constitution resides in the pouvoir constituent, in translation

the constituent power, which for Sieyès means the sovereign people.95 The constituent power

legitimates the creation of a new constitution by its approval, and in doing so authorizes the

establishment of institutions, agencies, departments and the general infrastructure of government

95
Emmanuel Joseph Sieyès, Qu’est-ce que le Tiers état? (Paris: Éditions du Boucher, 2002) (originally published in
1789) at 53.
_________________________________________________________________

RICHARD ALBERT 25

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

to carry out its will. This collection of constitutional bodies forms the pouvoir constitué, the

constituted powers to whom the constituent power delegates the authority to act in its name.96

What Sieyès therefore envisions is a hierarchy of authority: the constituent power sits atop the

constituted powers, and can at any time withdraw its delegation of authority to act on its behalf.

The constituted powers are limited to changing the constitution in ways that do not depart from

the framework and spirit of the constitution that was authorized by the constituent powers.

When supreme and constitutional courts around the world invalidate constitutional

amendments, they may therefore be said to enforce the bargain between the constituent and

constituted powers. The bargain is that the constituted powers can act only within the boundaries

delimited by the constitution that was authorized by the constituent power. An amendment that

does violence to structure, spirit, mission, or values of the constitution is not an amendment at

all, according to the constituent power theory. It must instead be understood as a new

constitution. But because the constituted powers are not authorized to replace the constitution

approved by the constituent power without the consent of the constituent power, the role of

courts is to disallow those changes that run counter to the core of the constitution until and unless

the constituent power once again mobilizes to express its approval of the new constitution.

Courts accordingly routinely exercise judicial review of amendments proposed by the

constituted powers on the theory that those amendments are better enacted as a new constitution.

Courts will not disallow those kinds of transformative constitutional changes, but they will

require the constituent power to manifest its approval of those changes insofar as they constitute,

at least conceptually, a new constitution and only the constituent power can approve a new one.

These are the foundations of the doctrine of unconstitutional constitutional amendment. They

96
Ibid.
_________________________________________________________________

RICHARD ALBERT 26

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

explain, and for some justify, the power of courts to invalidate an amendment. In the end, the

defense of the idea of an unconstitutional constitutional amendment is that courts should be

authorized to invalidate amendments in order to guard the peoples’ constitution from violation

by self-interested political actors who would usurp popular will for politically expedient aims.

This highlights a further reason why the Supreme Court of Canada may be more powerful

than other courts when it comes to policing the process and substance of constitutional reform.

The Secession Reference suggests that the Supreme Court can exercise judicial review over even

the constituent power, not merely the constituted powers. What this means – if indeed the Court

intended to claim this power – is that there is nothing in either the amendment of the Canadian

Constitution or in the adoption of a new one that is beyond the Court’s purview:

The amendments necessary to achieve a secession could be radical and

extensive. Some commentators have suggested that secession could be a

change of such a magnitude that it could not be considered to be merely an

amendment to the Constitution. We are not persuaded by this contention.

… [A]lthough the Constitution neither expressly authorizes nor prohibits

secession, an act of secession would purport to alter the governance of

Canadian territory in a manner which undoubtedly is inconsistent with our

current constitutional arrangements. The fact that those changes would be

profound … does not negate their nature as amendments to the

Constitution of Canada.97

Surprisingly, this passage has not attracted much scholarly attention. It is a revolutionary

declaration of the judicial power to review the acts of the constituent power in Canada.

97
Secession Reference, supra note 11, at para 84.
_________________________________________________________________

RICHARD ALBERT 27

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

To understand the revolutionary character of this passage, we must return to the theory of

the constituent power. The Court recognizes that secession would be a “radical and extensive”

change to the Constitution but it rejects the possibility that the change would be anything but an

amendment. In other words, even though secession “undoubtedly is inconsistent with our current

constitutional arrangements” this does not “negate” its “nature” as an “amendment” to the

Constitution of Canada. Ordinarily in the theory of constitutional change, an amendment that

runs counter to the constitution is not an amendment, but rather conceptually a new constitution,

and it therefore requires authorization from the constituent power.98 But here in the Secession

Reference, the Court identifies as a mere amendment what other courts interpret as conceptually

a new constitution. The result is clear: the Court can legitimately review the constitutionality of

the amendment in its role as guardian of the constitution that was approved by the constituent

power.

But the Court could be saying something even more revolutionary: that all manner of

changes – from the tinkering of constitution-changing to the wholesale revisions in constitution-

making – are possible using the procedures codified in Part V of the Constitution of Canada.

After all, the unanimity formula prescribes rules for altering Canada’s most fundamental

commitments, and it is hard to think of a quantum of agreement among federal and provincial

actors that is more demanding that what it already requires to enact a major change to the

Constitution. We should understand the aspiration of the unanimity formula in Part V to be to

suggest how the constituent power in Canada may be exercised. This would be consistent with

the theory of constituent power, under which the constituted powers are bound by more

permissive rules to change the Constitution in a way that is consistent with its framework, yet the

98
For a critique of the conventional theory of constitutional change, see Richard Albert, Constitutional
Amendments: Making, Breaking, and Changing Constitutions (Oxford: Oxford University Press, 2019), chapter II.
_________________________________________________________________

RICHARD ALBERT 28

Electronic copy available at: https://ssrn.com/abstract=4203008

109 SUPREME COURT LAW REVIEW (2d) (forthcoming 2022)
______________________________________________________________________________

constituent power can make any changes it wishes, though it must satisfy higher and more

onerous thresholds. If the Supreme Court’s reading of Part V is indeed that it directs the exercise

of constituted power and also of constituent power, then the Court would possess the unusual

power to review the constitution-making authority of the constituent power – a rare power

possessed by very few if any courts around the world. This would amount to the extraordinary

power to declare an entire constitution unconstitutional, far beyond a simple an amendment.99

CONCLUSION—THE COURT IN CONSTITUTIONAL AMENDMENT

In Democracy in America, Alexis de Tocqueville famously wrote that “scarcely any

political question arises in the United States that is not resolved, sooner or later, in a judicial

question”.100 As Hirschl has shown, mega-politics have indeed become judicialized in the United

States; one needs to think only of Bush v. Gore,101 the electoral dispute the Court resolved in

favour of George W. Bush. But the Supreme Court of the United States has gone another way

when it comes to constitutional amendment: it has held that questions involving constitutional

amendment are nonjusticiable political matters for Congress and the states to resolve.102

Tocqueville might as well have been speaking of constitutional amendment in Canada,

which is now a road that runs through the Canadian Supreme Court. Anytime amending actors

wish to make a major change to the Constitution of Canada, practice and perhaps convention

now dictate that they refer their plan to the Court for its advice to determine whether, how, and

by whom the Constitution may be amended – even where that amendment affects the Court’s

own powers. As I have shown, this extraordinary power is not unique among constitutional

99
For more on this idea, see Richard Albert, ‘Four Unconstitutional Constitutions and their Democratic
Foundations’ (2017) 50 Cornell Int’l LJ 169.
100
Alexis de Tocqueville, Democracy in America (Hertfordshire: Wordsworth Editions Limited, 1998) at 110.
101
531 US 98 (2000).
102
See Coleman v Miller, (1939) 307 US 433 at 454.
_________________________________________________________________

RICHARD ALBERT 29

Electronic copy available at: https://ssrn.com/abstract=4203008

THE MOST POWERFUL COURT IN THE WORLD?
______________________________________________________________________________

democracies but the way it is exercised in Canada – prior to the formal proposal or enactment of

a constitutional reform – puts the Supreme Court of Canada squarely in contention for the title of

the most powerful court in the world, certainly on matters of constitutional change.

Whether this is good or bad for democracy in Canada is a question for another day.

Answering that question requires us to define what we mean by democracy – a majoritarian or

more substantive conception – and it requires us to evaluate the process by which the Court has

acquired its powers to review, shape, and also to veto constitutional change in Canada. We might

arrive at the conclusion that the Court could more legitimately exercise its extraordinary powers

of constitutional amendment review if the Constitution of Canada were formally amended to

codify this power. Or it may be that Canada’s hybrid political culture of partially codified and

partially uncodified constitutionalism accepts or even embraces the Court in this role, in which

case formal codification would be an ancillary consideration that matters more in master-text

constitutional regimes like the United States. Finally, one might ask also whether the concept of

popular sovereignty has as much purchase in Canada as it does in many if not most other

constitutional democracies, and if not what this means for the conventional understanding of

constituent power in which the study of constitutional change is presently anchored. However

one answers these questions, the Court’s pre-proposal and pre-enactment review of constitutional

amendment makes it the most powerful institution in Canada’s constitutional architecture.

_________________________________________________________________

RICHARD ALBERT 30

Electronic copy available at: https://ssrn.com/abstract=4203008