Amending Formula

This article was written by a law student for the general public.

A constitution includes the most fundamental values of a nation. Those values should be protected. One of the ways that a constitution is protected is by making it hard to change. If it was easy to change, the government could change the constitution when it wanted to act unconstitutionally.

However, a constitution should not be too difficult to change. Values change over time. Some things may not be as important as they once were, and other things that were not important may have become fundamental. A constitution should be able to respond and incorporate changes in keeping with the times.

A good constitution needs to find the right balance. It should not be too easy or too hard to change. When Canada’s Constitution was being updated in 1981-82, the people who were suggesting changes had to think about this balance. Before 1982, Canada could only change its Constitution by asking the British Parliament to do it. In order to "patriate" the Constitution, that is, to bring it home, Canada needed a way to change the Constitution on its own. It needed a formula or a way to make changes to its Constitution that would be acceptable to Britain and to the federal and provincial governments. By creating an acceptable amending formula, Canada would no longer need to rely on Britain.

The drafters of Canada’s revised Constitution created the amending formula. The amending formula comprise a series of procedures that are listed in sections 38 to 49 of the Constitution Act, 1982.[1] Creating the formula was not easy because all of the provinces wanted to make sure they got a say if and when the Constitution was to be changed.

In all, there are five different procedures for changing different aspects of constitutional law in Canada. These procedures are as follows.

The General Procedure

The general procedure is the standard way to change the Constitution. Unless the Constitution says that another formula must be used, the general formula is needed. The general formula is also needed for specific changes listed under section 42,[2] like changing what powers Senators have and how they are selected. This formula would also be used to establish new provinces.

To change the Constitution using the general formula, the change needs to be approved by 1) the House of Commons, 2) the Senate, and 3) a minimum number of provincial legislatures. There must be at least seven provinces that approve the change, representing at least 50% of the population of all the provinces combined. This is often called the 7/50 rule. This means that provinces with large populations will typically need to approve a change in order for the amendment to succeed. However, the change cannot happen without some support from provinces with smaller populations.

The Unanimity Procedure

Some things were thought to be so important to Canada that they could only be changed by having all of the provincial governments and the federal government give their consent. Section 41 describes the types of changes that need agreement from all governments.[3] This includes changing the role of the King or Queen, changing the use of English or French in Canada, or changing the amending procedures themselves. Because all governments need to agree on these issues to change them, it is very unlikely that these changes will ever be made.

Other Procedures

The other three amending procedures are used to make changes to the Constitution that do not affect all provinces. Typically, only the governments that are affected by the change need to agree. For example, if it is a change to a provincial constitution, only that province needs to agree to the change. If it is a change to how the federal government works, the federal Parliament alone can make that change. If it is a change that affects two or more provinces, like changing provincial boundaries, only those provinces and the federal Parliament need to agree.

Amendments since 1982

So far there has been very little use of the more arduous amending procedures in Canada (the general and unanimity procedures). There was one successful use of the general formula in 1983 to make some additions to the Aboriginal rights section of the Constitution. There were also two famous attempts to change the Constitution that failed: the Meech Lake Accord in 1987-1990 and the Charlottetown Accord in 1992. Both attempts proposed a number of changes to the Constitution that were negotiated by Canadian leaders. However, when it came time to ratify the proposed changes, both initiatives fell short.

None of the amending procedures require direct approval by the people of Canada. Some governments think that it is not a good idea to change the Constitution without having a public vote or referendum on it. Alberta[4] and BC[5] have now passed laws that require that a referendum must be held before they approve a change to the Constitution. Additionally, the federal government has a law called An Act respecting Constitutional Amendments, which requires support from Ontario, Quebec, BC, at least two of the Atlantic provinces, and at least two of the Prairie provinces before the federal government can propose an amendment.[6] These laws add an extra step needed before the Constitution is changed, which may make it even harder to change the Constitution.

Although there is a lot of debate about changing Canada’s Constitution, it is important to understand how it can be completed. So far, changing the Constitution has been very difficult. Whether there will be more changes in the future remains to be seen. For now, Canada's amending formula has made sure that the Constitution is well protected.

[1] http://www.canlii.org/en/ca/const/const1982.html#sec38

[2] http://www.canlii.org/en/ca/const/const1982.html#sec42

[3] http://www.canlii.org/en/ca/const/const1982.html#sec41

[4] Constitutional Referendum Act, RSA 2000, c C-25, http://canlii.ca/en/ab/laws/stat/rsa-2000-c-c-25

[5] Constitutional Amendment Approval Act, RSBC 1996, c 67, http://canlii.ca/en/bc/laws/stat/rsbc-1996-c-67

[6] An Act respecting Constitutional Amendments, SC 1996, c 1, http://canlii.ca/en/ca/laws/stat/sc-1996-c-1.

Senate Reform Update

This article was written by a law student for the general public.

Recent events have sparked interest in Senate reform:

Suspended Senators
Mike Duffy trial, including residency and expense scandals
Liberal leader Justin Trudeau’s removal of Senator’s from party caucus
Senatorial opposition to the Reform Act (among other legislation)
Low public opinion of the Senate[i]Since Confederation, countless revisions have been suggested to improve the utility of the Senate.[ii] Efforts have been stalled by the provinces’ inability to agree on the distribution of senators across the provinces, the purpose of the Senate, and reluctance of the federal government to engage with stakeholders on this agenda.In 2011 the Conservative Party of Canada introduced Bill C-7, The Senate Reform Act.[iii]This Act was based on two former pieces of legislation: Bill C-20, the Senate Appointment Consultations Act[iv] and Bill C-19, An Act to Amend the Constitution Act, 1867 (Senate tenure).[v] These Bills, if passed, would have established a nation-wide system through which voters would elect senators. Those elected would form a list from which the Prime Minister would then make appointments. It would also implement 8-year term appointments, rather than mandatory retirement at age 75. Questions regarding the constitutionality of issues raised in these Bills along with questions concerning, for instance, abolishing the Senate, were referred to the Supreme Court in 2013.
In 2014, the Supreme Court of Canada issued its decision in Reference re Senate Reform. The Court determined that any changes to the Senate “change our Constitution’s architecture” and therefore the provinces must be consulted.[vi] The federal government cannot unilaterally revise term limits, residency or property requirements, or implement mandatory nominations. In these cases, the general amending formula, or 7/50 formula, applies. Further, full abolition would require unanimous consent of the provinces.[vii]

Reactions to this reference have varied across the country. The following is a snapshot of provincial-territorial responses to the Supreme Court’s opinion:

Jurisdiction

Response

British Columbia
- The Government of British Columbia was supportive of the Court’s decision in the Reference.
- According to a press release, the Government is pleased that the 7/50 amending formula would be required to change the appointment process and term limits of Senators.[viii]
Alberta
- Alberta has argued that no one province should have a veto on reform.
- Alberta is the only province to successfully elect Senate nominees and continues to prioritize the election of Senators as a principal reform.[ix]
Saskatchewan
- Premier Brad Wall has expressed his support for abolition of the Upper Chamber in the past. As such, Wall was critical of the judgment.[x]
- Following the 2014 Supreme Court reference, the Government of Saskatchewan conceded that Canadians are “indeed stuck with an anachronistic, unelected, unaccountable Senate.”[xi]
Manitoba
- The Manitoba government argued prior to the reference that the federal government did not have the authority to unilaterally pursue Senate reform, including abolition.[xii]
- While there is a preference for abolition of the Senate altogether, elections are the next best option.
Ontario
- Premier Kathleen Wynne was pleased with the Supreme Court’s decision. The provinces, especially Ontario, need to be consulted on any changes made to the Senate.[xiii]
- The Premier and her government believe in the existence of the Senate as a site for sober second thought. Reform is more desirable than full abolition.
Quebec
- Quebec notes that the Senate was a “fundamental component of the federal compromise in 1867.”[xiv] Any changes to the institution would require a tailored approach with the francophone province.
- Premier Philippe Couillard has stated that abolition is against the political interests of his Quebec.[xv]
Nova Scotia
- Nova Scotia argues for the necessity of a second chamber and that it should be reformed – not abolished.
- The province has no problem with the federal government repealing the property qualifications.[xvi]
New Brunswick
- New Brunswick argues that it is not within the federal government’s authority to modify term limits or implement elections.[xvii]
- Similar to Nova Scotia, the province agrees the federal government is able to constitutionally repeal property qualifications.
Newfoundland/

Labrador
- According to the province’s factum, the changes proposed by the federal government were fundamental and thus require provincial consultation.[xviii]
Prince Edward Island
- Prince Edward Island took the position that the federal government could not make changes to the Senate without provincial consent. As such, the province was pleased with the reference.
- Former Premier Robert Ghiz suggested that reform is not a priority following the reference.[xix]
[i] Most (69%) Canadians Disagree that the Senate of Canada Performs a Necessary and Useful Political Function Ipsos Reid (2 January 2014).

[ii] Bruce Hicks, “Can a Middle Ground be Found on Senate Numbers?” (2007) 16.1 Constitutional Forum 21 at 21.

[iii] Bill C-7, An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits (the “Senate Reform Act”), 1st Sess, 41st Parl, 2011 (First reading 21 June 2011).

[iv] Bill C-20, An Act to provide for consultations with electors on their preferences for appointments to the Senate (the “Senate Appointment Consultations Act”), 2nd Sess, 39th Parl, 2007 (This bill did not become law before the 39th Parliament ended on 7 September 2008).

[v] Bill C-19, An Act to amend the Constitution Act, 1867 (Senate tenure), 2nd Sess, 39th Parl, 2007 (Thisbill did not become law before the 39th Parliament ended on 7 September 2008).

[vi] Reference re Senate Reform, [2014] 1 SCR.

[vii] Ibid.

[viii] Ministry of Justice, Government of British Columbia, News Release, 2014JAG0109-000533, “Statement by Attorney General and Minister of Justice Suzanne Anton on the Senate reference case” (25 April 2014).

[ix] Government of Alberta, News Release, “Alberta continues to lead Senate reform efforts” (30 August 2013).

[x] Government of Saskatchewan, News Release, “Statement from Premier Brad Wall” (25 April 2014).

[xi] Ibid.

[xii] Government of Manitoba, News Release, “Government of Manitoba introduces motion to abolish the Senate” (26 November 2013).

[xiii] Office of the Premier, Government of Ontario, News Release, “Premier’s Statement on the Supreme Court of Canada’s Ruling on Senate Reform” (25 April 2014).

[xiv] Québec’s Place Within the Senate, Intergovernmental Affairs Secretariat, Government of Quebec.

[xv] Chloe Fedio, “NDP Leader Tom Mulcair says he’ll seek mandate for Senate abolition” CBC News Online (10 June 2015).

[xvi] Reference re Senate Reform, [2014] 1 SCR 704 (Factum Attorney General of Nova Scotia).

[xvii] Reference re Senate Reform, [2014] 1 SCR 704 (Factum Attorney General of New Brunswick).

[xviii] Reference re Senate Reform, [2014] 1 SCR 704 (Factum Attorney General of Newfoundland and Labrador).

[xix] Teresa Wright, “Senate ruling good news for P.E.I., says Ghiz” The Guardian Online (25 April 2014).

Reference re Supreme Court Act: Defining Appointments to Canada's Highest Court

Introduction

On March 21, 2014, the Supreme Court of Canada (SCC) released Reference Re Supreme Court (Supreme Court Reference),[1] a decision about who is eligible to be appointed to the three Supreme Court seats reserved for Quebec judges or lawyers. The question arose when the federal government’s appointment of Justice Marc Nadon to a vacant seat at the Supreme Court was constitutionally challenged. At the time of his appointment, Justice Nadon was not practicing law in Quebec as a lawyer or judge. Rather, he was a justice of the Federal Court of Appeal which is a Federal court and therefore, he was not considered a member of the Quebec bar. To determine if his appointment was constitutional, the Supreme Court examined the wording of sections 5 and 6 of the Supreme Court Act that sets out the qualifications for Supreme Court judges.

But the Supreme Court Reference accomplished more than providing an answer to the constitutionality of a particular appointment of one judicial candidate. It helped define how changes to the composition of the Supreme Court can be made. The answers provided by the Supreme Court to the questions posed clarified its constitutional status and reaffirmed that its composition, including the eligibility of justices for appointment, can only be achieved through the amending formula.

Facts

Justice Marc Nadon served as a justice in the Federal Courts for over twenty years. Admitted to the Barreau de Quebec (Quebec Bar) in 1974, he practiced law in both Quebec and England until his appointment to the Canadian Federal Court Trial Division in 1993. When Justice Morris Fish retired from the Supreme Court in August 2013, the Conservative government chose Justice Nadon to replace him, and he assumed his new position on October 7, 2013.[2]

That day, constitutional lawyer Rocco Galati officially challenged Justice Nadon’s appointment at the Federal Court.[3] He argued that Nadon was neither a member of one of the superior courts of Quebec nor a current member of the Bar of Quebec as required by the Supreme Court Act and that his appointment was therefore unconstitutional. The Government of Quebec took a similar position.[4] In response to the controversy, Justice Nadon stated that he would not hear cases until the Supreme Court decided on the constitutionality of his appointment.[5]

To remedy the situation, Parliament amended the Supreme Court Act in the Economic Action Plan 2013 Act No. 2 so that the requirement that those eligible for appointment be existing members of the Bar was expanded to include former members of the Bar as well as current ones.[6] Justice Nadon’s appointment could then be considered constitutional. The government argued that this was the “most expeditious and most efficient way … to guarantee that federal court judges can be considered in the process of filling upcoming Supreme Court vacancies.”[7] Challengers Galati and the Quebec government, however, opposed the amendments, stating that the Supreme Court is part of Canada’s constitutional framework and eligibility requirements cannot be amended by the government acting alone.[8]The federal government then referred the case to the Supreme Court as a reference question for clarification of both the Nadon appointment and Supreme Court appointments in general.

Issues

The issues examined by the Supreme Court were as follows:

1. Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to sections 5 and 6 of the Supreme Court Act?

2. Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled Economic Action Plan 2013 Act, No. 2?[9]

The Decision in Brief

Six of the seven members of the Supreme Court responded in the negative to question 1: The Supreme Court Act requires that the three Quebec judges chosen must either be currently sitting on the Court of Appeal or Superior Court of Quebec, or have been members of the Barreau du Québec (Quebec Bar) for at least 10 years. The seventh member, Justice Moldaver, dissented.

The Court answered Question 2 in the affirmative, but only in part. It ruled that the government can make changes pertaining to the maintenance of the Courts, but it cannot enact legislation that would fundamentally change the Supreme Court or its structure, as it did in clause 472 of the Economic Action Plan 2013 Act.

Overall, the majority of the Court ruled that to be eligible for appointment to the Supreme Court, an individual must be a current member of the Quebec bar. The only way this eligibility criterion can be changed is through constitutional amendment.

Analysis

Who from Quebec is Eligible for Supreme Court Appointment?

Six of the seven members of the Supreme Court agreed that Nadon, a justice of the Federal Court, was not eligible for appointment to the Supreme Court even though he had been a past member of the Quebec bar. Section 6 of the Supreme Court Act states that “[a]t least three of the judges [of the Supreme Court of Canada] shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.”[10]

The Court examined the plain, textual meaning of section 6, that judges be selected “from among” members of the Quebec bar (implying “current” members). They believed this interpretation was consistent with the intention of the drafters of section 6 which was to preserve and protect Quebec’s civil law code.[11]Having civil law experts on the Supreme Court ensures that Quebec’s legal traditions will be preserved and, in turn, enhances Quebecers’ confidence in the Supreme Court.[12]

The Court also examined the wording of section 5 of the Supreme Court Act. It explains who among all of Canada’s judges may be appointed to the Supreme Court: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.”[13] Section 6 discusses the qualification of appointees from Quebec. “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province if, at any time, they were an advocate of at least 10 years standing at the bar of that Province.”[14] The Court concluded that while sections 5 and 6 are linked and should be read together, the wording of section 6, limiting the appointments of Quebec judges, is more important to consider than the wording in section 5. Those eligible for appointment therefore must be current members of the Bar.[15]

Justice Moldaver, however, disagreed, ruling that judges are eligible for appointment if they were a member of the Quebec bar for 10 years at any time in their legal career. He also argued that sections 5 and 6 are inextricably linked, which affects the way in which they are read. He stated that reading section 6 without section 5 –which is the general appointment process - is absurd.[16] Choosing to consider section 6 (the Quebec qualifications) over section 5 could result in a “newly-minted member of one day’s standing at the Quebec bar [being] eligible for a Quebec seat on this Court,” an undesirable result.[17] In Justice Moldaver’s opinion, Justice Nadon’s appointment could stand because both current and former members of the Quebec bar of at least 10 years standing, and current and former judges of the Quebec superior courts, are eligible for appointment to a Supreme Court seat reserved for Quebec.[18]

Can Parliament Enact Legislation that Modifies the Supreme Court of Canada?

The majority of the Supreme Court ruled that Parliament cannot unilaterally change the Court’s composition or essential features. By legislating changes to the Supreme Court Act via clauses 471 and 472 in the Economic Action Plan 2013 Act, No. 2, the Court ruled that Parliament had indeed changed the Court’s composition or essential features:

1. Clause 471 stated that a person may be appointed a judge if, at any time, they were a barrister or advocate of at least 10 years standing at the bar of a province;[19] and

2. Clause 472 modified the Supreme Court Act so that a candidate does not need to be an active 10-year member of the Quebec bar to be considered for a SCC appointment.[20]

Clause 472 was problematic for the Court. At issue was whether the Supreme Court Act was constitutionally protected. The government argued that the Act is not part of section 52 of the Constitution Act, 1982, a clause outlining which documents are constitutionally protected. Therefore, the Act is not “entrenched,” or protected, by the Constitution and Parliament can make changes to the Court outside of the amending formula unless or until the Act becomes entrenched.[21]

The Court disagreed with the government’s interpretation stating that any substantive change to the Supreme Court’s eligibility requirements as stated in the Supreme Court Act amends the Constitution and therefore triggers the Constitution’s amending formula. In other words, any changes to be made to the eligibility requirements to the Supreme Court require use of the amending formula because eligibility is constitutional. Therefore, the new substantive addition to the Supreme Court Act, section 6.1 (originally clause 472 of the Economic Action Plan 2013 Act, No. 2) is unconstitutional – it was a change made unilaterally by Parliament and did not include consent of the provinces as is required for constitutional change. In this decision, the Court declared for the first time that, at a minimum, sections 5 and 6 of the Supreme Court Act are part of the Constitution.[22]

Notably, Justice Moldaver did not answer question 2 because he ruled that no change to the Supreme Court Act was necessary to appoint Nadon, and so the question was moot: in his opinion, the second question did nothing more than restate the law as it exists.[23]

Significance of the Ruling

The Court’s opinion in the Supreme Court Reference denied Justice Marc Nadon's candidacy for the vacant Supreme Court seat. He returned to his former position atthe Federal Court of Appeal. But what does the ruling mean in the broader constitutional context? The Supreme Court Reference clarifies the constitutionally-protected interests of two entities, the Supreme Court of Canada and the provinces and territories.

First, it confirmed that substantial changes to the structure of the Supreme Court are constitutionally protected and can only be changed using the Constitution’s amending formula. This means the independence of the Supreme Court is protected from a federal government that may try to change the Court to suit its political interests, and that the majority of Canada’s provinces must consent to any substantive changes.

Second, the decision upholds an important component of federalism by protecting the fundamental role of the provinces and territories in changing aspects of the Constitution such as eligibility for appointment to the Supreme Court. Legal scholar Ian Peach suggests that the Supreme Court Reference will come to be known as “much more than a simple decision about the validity of a particular judicial appointment… [It is an] important milestone in the evolution of our constitutional jurisprudence.”[24]

[1] Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] SCJ No 21 (CanLII) . <https://www.canlii.org/en/ca/scc/doc/2014/2014scc21/2014scc21.html?searchUrlHash=AAAAAQAXc3VwcmVtZSBjb3VydCByZWZlcmVuY2UAAAAAAQ>.

[2] Aaron Wherry, “The Hot Mess of the Nadon Appointment” Macleans (21 March 2014), online: Rogers Digital Media.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Supreme Court Reference, supra note 1 at para 11.

[7] House of Commons Debates (Hansard), 41st Parl, 2nd Sess, No 6 (21 November 2013) at 0850 (Peter McKay).

[8] “The Nadon Reference: 16 Possible Outcomes,” Administrative Law Matters (17 March 2014), online: < http://administrativelawmatters.blogspot.ca/2014/03/the-nadon-reference-16-possible-outcomes.html.>.

[9] Supreme Court Reference, supra note 1 at para 7.

[10] Supreme Court Act, RSC 1985, c S-26, ss 5-6 (CanLII) . <https://www.canlii.org/en/ca/scc/doc/2014/2014scc21/2014scc21.html?searchUrlHash=AAAAAQAXc3VwcmVtZSBjb3VydCByZWZlcmVuY2UAAAAAAQ>.

[11]Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed (Scarborough: Thomson, 2007) at 2.3. Quebec’s civil law is different from the common law practiced in the other provinces and territories in that it is mainly written down, or “codified,” whereas the common law uses past rulings to determine the direction the law will take.

[12] Supreme Court Reference, supra note 1 at para 18.

[13] SCA, supra note 10, s 5.

[14] Ibid, s 6.

[15] Supreme Court Reference, supra note 1 at para 56.

[16] Ibid at para 123.

[17] Ibid.

[18] Ian Peach, “Reference re Supreme Court Act, ss 5 and 6 - Expanding the Constitution of Canada,”Const Forum Const, vol 23.3 (12 July 2014), online: Centre for Constitutional Studies.

[19] SCA, supra note 10, s 5.1

[20] Ibid, s 6.1

[21] Peach, supra note 18.

[22] Ibid.

[23] Supreme Court Reference, supra note 1 at para 111.

[24] Ibid.

Senate Term Limits: Perspectives on Reform

Introduction

Can the Federal government unilaterally impose term limits on members of the Senate? Does such a drastic change in our parliamentary institutions demand a formal constitutional amendment agreed by 7 provinces representing 50% of the population?

Perhaps not.

This summer, the Federal government will propose a series of reforms to the Canadian Senate, the Upper House of Parliament. Chief among these reforms will be a proposal to change the tenure of Senators; in other words to set limitations on the term, or length of time that they can serve as a Senator.

This is the third attempt by the Conservative government of Prime Minister Stephen Harper to reform the Senate. With both the House of Commons and Senate now firmly in the control of the Conservatives it seems likely that this time, the proposed reforms will be approved by Parliament.

Senate reform has long been a key policy issue for both the Conservative Party and the Reform Party that preceded it. While the proposed changes announced by the government fall far short of the so-called “Triple E”[1] Senate, advocated by former Reform Party leader Preston Manning, they would still represent the most fundamental changes to Parliament in our country’s history.

But can Parliament impose a term limit on Senators without re-opening a “constitutional can of worms”? The Federal government, as well as leading legal scholars, believe it can. The government argues the Constitution gives it the necessary power to make these changes without the support of the Provincial governments.

This article will examine the issue of Senate term limits and whether the Federal government does indeed have the power to impose them without provincial approval.[2]

What is required to make changes to the Senate?

a) Term Limits and the Constitution Act, 1982

The Constitution Act of 1982 states, that:

Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons[3].

A plain reading of this statement appears to indicate that Parliament - that is, the House of Commons, the Senate and the Governor General - can make changes to the Senate without the need for a formal constitutional amendment.

However, The Constitution Act of 1982 also sets out what changes to the Senate would require use of the Amending Formula, that is , approval by at least 7 provinces representing at least 50% of the population[4]. These changes are:

a) Changes to the powers of the Senate ;

b) the method for selecting Senators;

c) the number of members representing each province; and

d) senator residency qualifications[5]

This list is important not so much for what it contains but for what it does not: there is no mention of Senate tenure. Therefore it follows that the federal government can arguably institute term limits for Senators unilaterally.

The Federal government bases its ability to institute term limits unilaterally on this interpretation of the Constitution. Although the Supreme Court has never ruled on this issue, the majority of Canadian legal scholars agree with the Federal government’s position that the Constitution does give Parliament the ability to institute term limits on Senators unilaterally[6].

Nevertheless, it is at least arguable that these elements of the Constitution should be read in the context of the Upper House Reference, a previous decision of the Supreme Court dealing with Senate reform.

b) Term Limits and the Upper House Reference, 1980

The Upper House Reference was the result of the Federal government requesting clarification from the Supreme Court of Canada on its power to unilaterally change the Senate[7]. The Court ruled that Parliament could not enact any changes that would alter “the fundamental features, or essential characteristics given to the Senate as a means of ensuring regional and provincial representation in the Federal legislative process” without the approval of the Provinces.[8]

In order to determine what constitutes these “essential characteristics” the Court looked to the preamble to the Constitution Act, 1867 which states that we “shall have a constitution similar in principle to that of the United Kingdom”.[9] The Court took this to mean that we should have an unelected Upper House appointed for life.[10]

At first glance, this approach appears to hinder any attempts to institute term limits; and yet, the Court ruled that the unilateral federal decision to enact a mandatory retirement age of 75 did not impair the essential characteristics of the Senate[11]. The Court declined to rule specifically on further term limits as no proposed term had been included in the reference questions; however, it did say that at some point a term limit could be so short as to impair the functioning of the Senate in providing “sober second thought in legislating”.[12] The Court did not specify what particular length of term would be short enough to interfere with the Senate's role.

There is some debate as to the continuing relevance of this decision. The decision was issued in 1980 and many leading legal scholars argue that the Constitution Act of 1982 has superseded this decision entirely. These scholars assert that those essential characteristics of the Senate the Supreme Court referred to were specifically listed in the new Constitution[13]. Because Senate tenure is not included, it follows that it should not be considered an essential characteristic.

However, others argue that the list of essential characteristics of the Senate contained in the Constitution is not exhaustive and that it is still necessary to interpret the Constitution in light of the Supreme Court decision in the Upper House Reference[14]. This was the approach taken by the Senate Committee that was tasked with examining Senate Reform in 2007. They interpreted the Upper House Reference to mean that the following three critical elements must be protected to meet the constitutional requirement that the essential characteristics of the Senate be maintained:

independence;
a capacity to provide sober second thought; and
the means to ensure provincial and regional representation[15].

The Committee felt that the term limits set out in the most recent attempt by the Federal government at Senate reform fell short of meeting these elements. The crux of their concern centred on the length of the term which, at eight years, they felt was too short. The recommendation of the Committee in their report was for a term length of no less than 15 years[16].

It is unclear whether the Supreme Court would agree with the Committee that 15 years should be the minimum term for Senators, given their broad comments about term limits in the Upper House Reference.

Given this interpretation of the Upper House Reference and the recommendations of the Senate Committee, it does appear that Senate term limits instituted unilaterally by the Federal government would be constitutionally valid. The major remaining issue to be determined then is appropriate term length.

Conclusion

Senate reform promises to remain an important issue in Canada. The Federal government has pledged to aggressively pursue the issue in the coming Parliament. With majorities in both the House of Commons and the Senate, the Conservative government is now ideally placed to successfully enact legislation to that end. Given these developments, Canadians should understand the Constitutional issues that surround attempts to reform the Senate.

The Federal government makes a compelling argument that the power it has through the Constitution Act, 1982 gives it the authority to enact term limits without provincial support. This argument has strong support from the Canadian legal community. There is an equally strong argument that the Supreme Court’s decision in the Upper House Reference is still a relevant tool in interpreting Parliamentary powers over Senate reform, if only with respect to the length of term limits.

The Conservative government of Stephen Harper has been trying to reform the Senate since forming government in 2006. Twice it has failed. Now, with the backing of Parliament and the legal community, it appears that, for Stephen Harper, the third time may be the charm.

In the news:

No rift within Tory caucus in Senate: Senators

Senate reform ruffles some Conservative feathers

No need for top court’s advice on Senate reform: Tories