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Today, the Supreme Court of Canada denounced the federal government’s plans to reform the Senate by unilaterally imposing term limits for senators and by holding non-binding “consultative” elections for the selection of future senators. The Court also decried the proposal that, by use of the general amending formula, the Senate could be abolished. The decision, Reference re Senate Reform, 2014 SCC 32, was rendered by “the Court” without any one of the eight justices who heard the appeal identified as the author of the reasons for judgment. In making these pronouncements, the Court did no more than its job: it upheld the Constitution of the country and held the federal government (and provincial governments) to the letter, spirit and intent of the supreme law of the land. For that, we all owe the Court a debt of gratitude.

The federal government referred a series of questions to the Court. These were:

1. In relation to each of the following proposed limits to the tenure of Senators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982, to make amendments to section 29 of the Constitution Act, 1867 providing for

(a) a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform Act;

(b) a fixed term of ten years or more for Senators;

(c) a fixed term of eight years or less for Senators;

(d) a fixed term of the life of two or three Parliaments for Senators;

(e) a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution Act, 2006 (Senate tenure);

(f) limits to the terms for Senators appointed after October 14, 2008 as set out in subclause 4(1) of Bill C-7, the Senate Reform Act; and

(g) retrospective limits to the terms for Senators appointed before October 14, 2008?

2. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867, or section 44 of the Constitution Act, 1982, to enact legislation that provides a means of consulting the population of each province and territory as to its preferences for potential nominees for appointment to the Senate pursuant to a national process as was set out in Bill C-20, the Senate Appointment Consultations Act?

3. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867, or section 44 of the Constitution Act, 1982, to establish a framework setting out a basis for provincial and territorial legislatures to enact legislation to consult their population as to their preferences for potential nominees for appointment to the Senate as set out in the schedule to Bill C-7, the Senate Reform Act?

4. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982, to repeal subsections 23(3) and (4) of the Constitution Act, 1867 regarding property qualifications for Senators?

5. Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act, 1982, by one of the following methods:

(a) by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside of the Constitution Acts, 1867 to 1982 but that is still part of the Constitution of Canada;

(b) by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or

(c) by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(1)(b) and (c) of the Constitution Act, 1982?

6. If the general amending procedure set out in section 38 of the Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent procedure set out in section 41 of the Constitution Act, 1982 apply?

The Court responded as follows:

Questions 1, 2, 3 and 5 are answered in the negative. Question 4 is answered in the affirmative with respect to s. 23(4). A full repeal of s. 23(3) requires a resolution of the legislative assembly of Quebec, pursuant to s. 43 of the Constitution Act, 1982. Question 6 is answered in the affirmative.

On the important issue of whether consultative elections could be used to assist the Prime Minister in choosing future senators, the Court noted that the government’s position that such elections would involve a formal amendment to the Constitution “privileges form over substance” (para. 52). The Court noted that such consultative elections would have the effect of fundamentally restricting the architecture of the federal Parliament. The Senate was intended to be an appointed (as opposed to democratically elected) legislative body that would be complementary to the elected House of Commons and would serve as a place of sober second thought. It was never intended to be a body with democratic legitimacy {paras. 60-61]:

The proposed consultative elections would fundamentally modify the constitutional architecture we have just described and, by extension, would constitute an amendment to the Constitution. They 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.

Federal legislation providing for the consultative election of Senators would have the practical effect of subjecting Senators to the political pressures of the electoral process and of endowing them with a popular mandate. Senators selected from among the listed nominees would become popular representatives. They would have won a “true electoral contest” (Quebec Senate Reference, at para. 71), during which they would presumably have laid out a campaign platform and made electoral promises: Pelletier, “Réponses suggérées”, at pp. 470-71. They would join the Senate after acquiring the mandate and legitimacy that flow from popular election.

The Court found that the express provisions of Part V of the Constitution Act, 1982 prohibited the sorts of unilateral constitutional amendments that were being contemplated by the government of Canada. To achieve such an amendment, the general amending formula needed to be used (2/3 of the provinces having at least 50% of the population of Canada).

Similarly, with respect to senatorial tenure, the Court found that a change to fixed term limits for senators would engage the general amending formula. Consistent with the concept of being a body of second sober thought, senatorial appointment is intended to provide independence to the senators. A term limit impairs the security of tenure and thereby undermines that independence [para. 79]:

As discussed above, the Senate’s fundamental nature and role is that of a complementary legislative body of sober second thought. The current duration of senatorial terms is directly linked to this conception of the Senate. Senators are appointed roughly for the duration of their active professional lives. This security of tenure is intended to allow Senators to function with independence in conducting legislative review. This Court stated in the Upper House Reference that, “[a]t some point, a reduction of the term of office might impair the functioning of the Senate in providing what Sir John A. Macdonald described as ‘the sober second thought in legislation’”: p. 76. A significant change to senatorial tenure would thus affect the Senate’s fundamental nature and role. It could only be achieved under the general amending procedure and falls outside the scope of the unilateral federal amending procedure.

Insofar as the proposal to simply abolish the Senate on the basis of the general amending formula, the Court dismissed the Attorney General for Canada’s argument as again putting “form over substance”. The Court concluded {para. 110]:

The review of constitutional amendments by an upper house is an essential component of the Part V amending procedures. The Senate has a role to play in all of the Part V amending procedures, except for the unilateral provincial procedure. The process of constitutional amendment in a unicameral system would be qualitatively different from the current process. There would be one less player in the process, one less mechanism of review. It would be necessary to decide whether the amending procedure can function as currently drafted in a unicameral system, or whether it should be modified to provide for a new mechanism of review that occupies the role formerly played by the upper chamber. These issues relate to the functioning of the constitutional amendment formula and, as such, unanimous consent of Parliament and of all the provinces is required under s. 41(e) of the Constitution Act, 1982.

The only issue that the federal government gained any ground was in relation to the antiquated requirement that senators hold real property in the province from which they are appointed.

In one of my first posts on this blog, “Abolition of the Senate – Simplistic, but is it Wise?” , I stated:

In the end, I agree with Minister Poilievre — in part. I agree that “the status quo is not acceptable”. I agree that the Senate must change. I disagree that it should simply vanish. Simply because it would be really, really hard to reform does not justify abolition. I think we owe it to all Canadians to keep on trying until we get it right

I remain of that point of view. I am deeply grateful to the principled and careful manner with which the Supreme Court of Canada has handled this issue, speaking as one authoritative Court and with clear, unambiguous directions as to how these sorts of reforms should be undertaken. I think that Canadians, be they politicians or just citizens, need to roll up their sleeves and get on with the task. We will be stronger for it in the end.

I remain,

Constitutionally yours,

Arthur Grant