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Digest of the Week — The Senate Reference


Reference re Senate Reform |  (WestlawNext Canada)
2014 CarswellNat 1178 |  (Westlaw Canada)
Supreme Court of Canada


Constitutional law | Amendment of Constitution of Canada

Federal government referred five questions to Supreme Court of Canada, dealing with parliamentary authority for enacting fixed terms for senators, consultative elections for senators and establishing provincial framework for such elections, repealing property requirements for senators, and abolishing senate — Questions referred to three bills tabled in 2006 — Implementation of consultative elections and senatorial term limits required consent of Senate, House of Commons, and legislative assemblies of at least seven provinces representing, half of population of all provinces as stated under s. 38 and s. 42(1)(b) of Constitution Act, 1982 — Full repeal of property qualifications required consent of legislative assembly of Quebec under s. 43, of Constitution Act, 1982 — Senate abolition required unanimous consent of Senate, House of Commons, and provinces as set out in s. 41(e) of Constitution Act, 1982 — Consultative elections would significantly alter Senate's fundamental nature and role — Each of proposed consultative elections would constitute amendment to Constitution of Canada and require substantial provincial consent under general amending procedure, without provincial right to opt out of amendment — Proposed consultative elections would fundamentally alter architecture of Constitution, as text of Part V expressly makes general amending procedure applicable to change, and proposed change was beyond scope of unilateral federal amending procedure in s. 4 — Changes to senatorial tenure did not fall residually within unilateral federal power of amendment in s. 44 — Language of s. 42 did not encompass changes to duration of senatorial terms, but it did not follow that all changes to Senate that fall outside of s. 42 came within scope of unilateral federal amending procedure in s. 44 — Unilateral federal amendment procedure limited — Net worth requirement in s. 23(4) of Constitution Act could be repealed by Parliament under unilateral federal amending procedure — Full repeal of real property requirement in s. 23(3) required consent of Quebec's legislative assembly — Full repeal of that provision would also constitute amendment in relation to s. 23(6), which contains special arrangement applicable only to province of Quebec — Removing net worth requirement of senators would not affect independence of senators — Removal of real property requirement for Quebec's Senators would constitute amendment in relation to special arrangement, and would thus attract special arrangements procedure and require consent of Quebec's National Assembly under s. 43, Constitution Act, 1982 — Full repeal of s. 23(3) would render inoperative option in s. 23(6) for Quebec Senators to fulfill their real property qualification in their respective electoral divisions, effectively making it mandatory for them to reside in electoral divisions for which they are appointed — Abolition of Senate would fundamentally alter constitution by removing bicameral government that shapes Constitution Act, 1867 — This involves Part V, which requires unanimous consent of Parliament and provinces under s. 41(e), Constitution Act, 1982.

The Federal government referred five questions to the Supreme Court of Canada, dealing with the parliamentary authority for enacting fixed terms for senators, consultative elections for senators and establishing a provincial framework for such elections, repealing the property requirements for senators, and abolishing the senate. The questions referred to three bills tabled in 2006.

Held: The implementation of consultative elections and senatorial term limits required consent of the Senate, the House of Commons, and the legislative assemblies of at least seven provinces representing, in the aggregate, half of the population of all the provinces as stated under s. 38 and s. 42(1)(b) of the Constitution Act, 1982. Full repeal of the property qualifications requires the consent of the legislative assembly of Quebec under s. 43, of the Constitution Act, 1982. Senate abolition required the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces as set out in s. 41(e) of the Constitution Act, 1982.

Per McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner JJ.: The argument that introducing consultative elections does not constitute an amendment to the Constitution was a matter of form over substance, and was a narrow approach inconsistent with the broad and purposive manner in which the Constitution is understood and interpreted. Consultative elections would significantly alter the Senate's fundamental nature and role. 

The proposed consultative elections would require substantial provincial consent under the general amending procedure, without the provincial right to opt out of the amendment.

The consultative election proposals set out in the Reference questions would amend the Constitution of Canada by changing the Senate's role within our constitutional structure from a complementary legislative body of sober second thought to a legislative body endowed with a popular mandate and democratic legitimacy. The proposed consultative elections would fundamentally alter the architecture of the Constitution. The Constitution Act, 1867 contemplates a specific structure for the federal Parliament, similar in Principle to that of the United Kingdom. The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove senators from a partisan political arena that required unremitting consideration of short-term political objectives. Correlatively, the choice of executive appointment for senators was also intended to ensure that the Senate would be a complementary legislative body, rather than a rival of the House of Commons in the legislative process. The assumption that senators would not overstep their role is the reason the framers did not deem it necessary to textually specify how the powers of the Senate relate to those of the House of Commons or how to resolve a deadlock between the two chambers. Consultative elections would weaken the Senate's role of sober second thought and would give it the democratic legitimacy to systematically block the House of Commons, contrary to its constitutional design.

The bills at issue were designed to bring about the appointment of senators with a popular mandate. Although in theory future Prime Ministers could ignore election results, a legal analysis of the constitutional nature and effects of proposed legislation cannot be premised on the assumption that the legislation will fail to bring about the changes it seeks to achieve.

The text of Part V of the Constitution Act expressly made the general amending procedure applicable. The words employed in Part V are guides to identifying the aspects of the system of government that form part of the protected content of the Constitution. Section 42(1)(b) of the Constitution Act, 1982 provides that the general amending procedure in s. 38(1) applies to constitutional amendments in relation to the method of selecting senators. The broad wording covers the implementation of consultative elections, indicating that a constitutional amendment is required and making that amendment subject to the general procedure.

The wording included more than the formal appointment of senators by the Governor General. By employing this language, the framers of the Constitution Act, 1982 extended the constitutional protection provided by the general amending procedure to the entire process by which senators are selected. The implementation of consultative elections fell within the scope of s. 42(1)(b) and was subject to the general amending procedure, without the provincial right to opt out. The doctrine of pith and substance was not relevant to the analysis of the matter.

The scope of s. 44 of the Constitution Act is limited and does not encompass consultative elections. The proposed change was beyond the scope of the unilateral federal amending procedure.

The parties did not dispute that a change in the duration of senatorial terms would amend the Constitution of Canada, by requiring a modification to the text of s. 29 of the Constitution Act, 1867. Changes to senatorial tenure did not fall residually within the unilateral federal power of amendment in s. 44. The language of s. 42 did not encompass changes to the duration of senatorial terms, but it did not follow that all changes to the Senate that fall outside of s. 42 come within the scope of the unilateral federal amending procedure in s. 44. The unilateral federal amendment procedure is limited. It is not a broad procedure that encompasses all constitutional changes to the Senate which are not expressly included within another procedure in Part V of the Constitution Act, 1867. The Senate is a core component of the Canadian federal structure of government, and changes that affect its fundamental nature and role engage the interests of the stakeholders in constitutional design could not be achieved by Parliament acting alone. The duration of senatorial terms was directly linked to the conception of the senate as a complementary legislative body to the House of Commons, and the proposed fixed term was a qualitative rather than minor difference. A fixed term so lengthy that it provides a security of tenure functionally equivalent to that provided by life tenure might be possible but it was difficult to objectively identify the precise term duration that guarantees an equivalent degree of security of tenure.

The net worth requirement in s. 23(4) of the Constitution Act could be repealed by Parliament under the unilateral federal amending procedure. However, a full repeal of the real property requirement in s. 23(3) requires the consent of Quebec's legislative assembly. A full repeal of that provision would also constitute an amendment in relation to s. 23(6), which contains a special arrangement applicable only to the province of Quebec.

Removing the net worth requirement of senators would not affect the independence of senators or otherwise affect the Senate's role as a complementary legislative chamber of sober second thought. Therefore, removing the net worth requirement did not engage the interests of the provinces. The repeal of s. 23(4) was the type of amendment that the framers of the Constitution Act, 1982 intended to capture under s. 44. It updated the constitutional framework relating to the Senate without affecting the institution's fundamental nature and role.

The removal of the real property requirement in s. 23(3), Constitution Act, 1867 would not alter the fundamental nature and role of the Senate. However, the removal of the real property requirement for Quebec's senators would constitute an amendment in relation to a special arrangement. It would thus attract the special arrangements procedure and require the consent of Quebec's National Assembly under s. 43, Constitution Act, 1982. Full repeal of s. 23(3) would render inoperative the option in s. 23(6) for Quebec senators to fulfill their real property qualification in their respective electoral divisions, effectively making it mandatory for them to reside in the electoral divisions for which they are appointed. However, the real property qualification in s. 23(3) could be partially removed by making the provision inapplicable to Senators from all provinces except those from Quebec.

Abolition of the Senate was not merely a matter of powers or members under s. 42(1)(b) and (c) of the Constitution Act, 1982. Rather, abolition of the Senate would fundamentally alter the constitutional architecture by removing the bicameral form of government that gives shape to the Constitution Act, 1867. This involves Part V, which requires the unanimous consent of Parliament and the provinces under s. 41(e), Constitution Act, 1982. To interpret s. 42 as embracing Senate abolition would depart from the ordinary meaning of its language and was not supported by the historical record. The mention of amendments in relation to the powers of the Senate and the number of senators for each province presupposes the continuing existence of a Senate and makes no room for an indirect abolition of the Senate. Within the scope of s. 42, it is possible to make significant changes to the powers of the Senate and the number of senators, but not strip the senate of its powers and reduce its number of members to zero.

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