What changed? The Supreme Court\u2019s 2014 opinion in the Senate Reference<\/em><\/a> changed the legal landscape when it comes to constitutional amendments.<\/p>\n In the Senate Reference<\/em>, the Court held that Parliament could not unilaterally implement certain reforms, such as consultative elections, to the Senate. These reforms amounted to a constitutional amendment, because they altered the \u201cconstitutional architecture,\u201d even though not one word of the Constitution would have to be changed to bring about these reforms. That is, the Constitution can be amended through changes to its architecture, even though the text of the Constitution is left untouched. Although the Court did not define \u201cconstitutional architecture,\u201d it indicated that the Constitution has a basic structure that is comprised of a number of elements, including the institutions of government, the functioning of the system as a whole, and unstated values and principles.<\/p>\n In addition, the Court found that consultative elections changed the \u201cfundamental nature and role\u201d of the Senate from a complementary legislative body of sober second thought to a legislative rival of the House, complete with a democratic mandate. Changes to the fundamental nature and role of the Senate, stated the Court, could only be brought about with a constitutional amendment involving provincial consent under the 7\/50 formula, as provided for in section 38 of the Constitution. Constitutional amendments that engage provincial interests cannot be implemented unilaterally by Parliament.<\/p>\n What impact does the Senate Reference<\/em> have on electoral reform? There is no question that the Court could<\/em> interpret the Senate Reference<\/em> to mean that a change in the electoral system requires a constitutional amendment that involves provincial consent. On this view, changing the electoral system from first past the post engages provincial interests, alters the constitutional text and architecture, and changes the fundamental nature and role of the House. The Court could conclude that a constitutional amendment involving provincial consent would therefore be required for electoral reform (see Michael Pal<\/a> \u00a0and Yaakov Roth and Jonathan Roth<\/a> for these arguments).<\/p>\n But it remains possible for the Supreme Court to interpret the Senate Reference<\/em> in a way that would allow the Court to adhere to its prior determination that changes to the electoral system fall within the domain of Parliament.<\/p>\n How would such an approach work? The Court would have to focus on the salient differences between the Senate and the electoral system in order to distinguish the Senate Reference<\/em> and find that its earlier precedents on the electoral system remain valid.<\/p>\n The first-past-the-post electoral system is not even mentioned in the constitutional text.<\/p><\/blockquote>\n The first difference between the Senate and the electoral system can be found in the constitutional text. There are a number of provisions (22 in total) that pertain to the Senate or to senators. By contrast, the first-past-the-post electoral system is not even mentioned in the constitutional text. Although there is a reference to electoral districts in a section that is no longer operative, the provision starts with the words \u201c[u]ntil the Parliament of Canada otherwise provides,\u201d which suggests that Parliament has the power to make changes to the electoral system.<\/p>\n The second difference can be found in the constitutional-amendment provisions. The Constitution explicitly provides that any change to the \u201cpowers of the Senate and the method of selecting Senators\u201d requires provincial consent under the 7\/50 rule. By contrast, the amendment provisions do not refer directly to the electoral system. Although the 7\/50 rule does apply to any change in \u201cthe principle of proportionate representation of the provinces in the House of Commons,\u201d most reform options can meet these provincial representational requirements.<\/p>\n Finally, a change to the electoral system would not necessarily amount to a change in the fundamental nature and role of the House. The House would remain a representative body under the mainstream reform options that are usually considered. Although the systems differ in their details in terms of the kind of representation that is provided, the Court\u2019s standard does not enquire at this level of granularity. It is concerned instead with the \u201cfundamental\u201d nature and role of an institution, and under most reform options, the House would continue to be a representational body that is designed to reflect the collective will.<\/p>\n A number of unintended consequences could arise if the Court requires provincial consent for electoral reform. The 7\/50 rule might be required every time electoral boundaries are redrawn, or every time new seats are added to the House. Given how difficult it is to amend the Constitution under the 7\/50 rule, such a course would freeze the democratic order in place. The Court\u2019s approach in its prior cases is preferable: the electoral process is generally treated as political, but subject to certain constitutional limits. The Supreme Court not only can, but should, adopt a narrow reading of the Senate Reference<\/em> that would allow Parliament to proceed unilaterally with the reform of the electoral system.<\/p>\n That being said, a change to the electoral system should not simply be pushed through by whichever political party happens to have a majority. The process of electoral reform must follow the norms of political neutrality (or nonpartisanship), consultation and deliberation, in order for the reform to be democratically legitimate. Electoral reform differs from the passage of ordinary legislation, because it changes the very ground rules by which political power is attained. The electoral reform process must therefore be held to a higher standard of democratic legitimacy.<\/p>\n Photo:\u00a0Songquan Deng \/ Shutterstock.com<\/p>\n This article is part of the Electoral Reform special feature<\/a><\/strong>.<\/p>\n <\/p>\n Do you have something to say about the article you just read? Be part of the\u00a0<\/em>Policy Options\u00a0discussion, and send in your own submission.\u00a0Here is a\u00a0<\/em>link<\/em><\/a>\u00a0on how to do it. <\/em>|\u00a0Souhaitez-vous r\u00e9agir \u00e0 cet article ? <\/em>Joignez-vous aux d\u00e9bats d\u2019<\/em>Options politiques\u00a0et soumettez-nous votre texte en suivant ces\u00a0<\/em>directives<\/em><\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" Is a constitutional amendment is required for electoral reform? The short answer is \u201cyes.\u201d But the real question is whether Parliament can unilaterally amend the Constitution to put a new electoral system in place, or whether it must follow the so-called 7\/50 formula for constitutional amendment, which means the approval of Parliament and at least […]<\/p>\n","protected":false},"featured_media":236981,"template":"","meta":{"_acf_changed":false,"content-type":"","ep_exclude_from_search":false,"apple_news_api_created_at":"2025-10-08T01:12:13Z","apple_news_api_id":"0a2c796a-3419-4fcc-ab9c-f28147d7900c","apple_news_api_modified_at":"2025-10-08T01:12:13Z","apple_news_api_revision":"AAAAAAAAAAD\/\/\/\/\/\/\/\/\/\/w==","apple_news_api_share_url":"https:\/\/apple.news\/ACix5ajQZT8yrnPKBR9eQDA","apple_news_cover_media_provider":"image","apple_news_coverimage":0,"apple_news_coverimage_caption":"","apple_news_cover_video_id":0,"apple_news_cover_video_url":"","apple_news_cover_embedwebvideo_url":"","apple_news_is_hidden":"","apple_news_is_paid":"","apple_news_is_preview":"","apple_news_is_sponsored":"","apple_news_maturity_rating":"","apple_news_metadata":"\"\"","apple_news_pullquote":"","apple_news_pullquote_position":"","apple_news_slug":"","apple_news_sections":[],"apple_news_suppress_video_url":false,"apple_news_use_image_component":false},"categories":[9359,9358],"tags":[8351,8692],"article-status":[],"irpp-category":[4240,4250,4339,4295],"section":[],"irpp-tag":[7108],"class_list":["post-264213","issues","type-issues","status-publish","has-post-thumbnail","hentry","category-loi-droits","category-politique","tag-constitution","tag-electoral-reform-fr","irpp-category-constitution","irpp-category-democratie","irpp-category-loi-et-justice","irpp-category-politique","irpp-tag-reforme-electorale"],"acf":[],"apple_news_notices":[],"yoast_head":"\n![\"flags\"](\"https:\/\/policyoptions.irpp.org\/wp-content\/uploads\/2025\/08\/flags.jpg\")
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