The Senate Reference: Reform is not for the faint of heart

By Jasmine T. Akbarali April 28, 201428 April 2014

The Supreme Court of Canada has sent a clear message to the federal government: meaningful senate reform requires consultation with, and agreement of, the provinces (or most of them).

The Senate Reference: Reform is not for the faint of heart

Jasmine T. Akbarali, Partner, Lerners LLP

The Court has refused to allow the interests of the stakeholders in the federation to give way to expediency.  If the federal government wants to bring about meaningful Senate reform, it will have to undertake a significant and substantive process involving dialogue with the provinces.  (One can hear a collective groan among the Canadian populace at the thought of constitutional negotiations.)

Here is how the Court arrived at its decision.

The six questions on the Senate reference fundamentally distilled to four issues:

  • Could the federal government institute a process of consultative elections in respect of the appointment of senators?
  • Could the federal government unilaterally impose term limits for senators?
  • Could the federal government unilaterally revoke the property qualifications for senators? 
  • How could the senate be abolished?  The Court was clear that its role was to set out the parameters within which such contemplated change could be implemented, not to opine on the desirability of it.

The Court found the general approach to the constitutional interpretation has to “be informed by the foundational principles of the Constitution” including federalism, democracy, the protection of minorities, constitutionalism and the rule of law.  Constitutional documents are interpreted in a “broad and purposive manner and placed in their proper linguistic, philosophic and historical context.”

The reference required the Court to focus on Part V of the Constitution Act, 1982, which lays out the amending formulae.  The Court found its “underlying purpose was to constrain unilateral federal powers to effect constitutional change.” The formulae “consecrate the principle of ‘the constitutional equality of provinces as equal partners in Confederation’” and are designed to “foster dialogue between the federal government and the provinces on matters of constitutional change, and to protect Canada’s constitutional status quo until such time as reforms are agreed upon.”

This respect for the importance of all of the stakeholders in the Canadian constitution underlies the entire decision. 

The Court found that consultative elections would fundamentally alter the architecture of the Constitution, and as such, would constitute an amendment to the Constitution.  The Constitution Act, 1867 created an elected lower house and an appointed upper house deliberately, so that the Senate could be a complementary legislative chamber of sober second thought, independent from the electoral process and the burdens of a popular mandate.  An elected Senate would weaken the Senate’s role of sober second thought “and would give it the democratic legitimacy to systematically block the House of Commons”. 

The Court concluded that elections would require agreement under the general amending formula (the “7/50” procedure). It found support for its conclusion in the wording of Part V, which specifically subjects the “method of selecting senators” to this formula.  The Court did not accept the argument of the Attorney General of Canada that consultative elections would not amend the Constitution because the results of the elections could be disregarded by a Prime Minister, noting “[a] legal analysis of the constitutional nature and effects of proposed legislation [to create a consultative elections process] cannot be premised on the assumption that the legislation will fail to bring about the changes it seeks to achieve”.

The Court concluded that term limits would also be subject to the general amending formula. Senatorial tenure is directly linked to independence of the Senate in conducting legislative review.  A significant change to senatorial tenure would affect the Senate’s fundamental nature and role.  This kind of change cannot be effected using the federal government’s unilateral amending power because it engages more than the federal government’s interest – the provinces are fundamentally affected by a change of this magnitude.  When the provinces’ interests are engaged, changes can only be achieved with their involvement. 

The Court did find a purpose for the unilateral amendment power of the federal government: it can be used to (mostly) do away with or modify the property qualifications for senators because these are not matters that engage provinces’ interests as they do not modify the fundamental nature or role of the Senate. The exception is Quebec, because a special arrangement exists in the Constitution with respect to the satisfaction of the real property requirements for Quebec senators.  Quebec’s consent is required to amend it.

Jasmine Akbarali is a partner in the Appeals Group at Lerners LLP. She can be reached at jakbarali@lerners.ca.

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