JUDICIAL INTERPRETATION, FORMAL AMENDMENT OR THE BALLOT BOX: RECOGNIZING CIVIC DEMOCRACY IN THE CONSTITUTION OF CANADA

Abstract

As a result of the mid-election interference that occurred during the Toronto Civic Election in 2018, commentators have raised various ways of interpreting the Constitution of Canada, through unwritten constitutional principles or otherwise, to protect democratic civic elections. Other commentators have suggested amending provincial constitutions, as opposed to the Constitution of Canada. In this Thesis, I argue that a formal amendment to the Constitution of Canada is required to adequately protect democratic civic elections. Additionally, I take the position that truly protecting civic democracy requires constitutional protection of civic legislative and revenue raising powers on top of democratic civic elections. In doing so, I discuss living constitutionalism, the prevailing theory of constitutional interpretation in Canada, and the constraints thereon. I then discuss how the various creative interpretations of the Constitution ignore the constraints on constitutional interpretation and create uncertainty within the text of the Constitution and for the future of civic democracy.

While I am critical of alternative approaches to a formal amendment, I agree that city councils of large Canadian cities play a significant legislative role and are an important level of government in Canada. For this and other reasons, such as the majority of the population of Canada living in cities, the legislative role of large Canadian cities ought to be protected by the Constitution. I argue that the constraints on constitutional interpretation cannot be ignored, rendering a formal amendment to the Constitution of Canada the ideal method to adequately protect civic democracy within the Constitution. Although I acknowledge a formal amendment of this nature is unlikely, I continue to discuss the potential benefits of advocating for a formal constitutional amendment such as addressing these issues through the ballot box or influencing constitutional interpretation through proposed, partially complete of failed constitutional amendment proposals. Again, although I am critical of the alternative approaches to a formal amendment of the Constitution of Canada, I accept that constitutional interpretation may be the only realistic method of protecting civic elections within the Constitution of Canada.