Mathew Englander (mathew5000) wrote,
Mathew Englander
mathew5000

Senate Reform Reference case: chart of the participants’ positions on each issue

This week, the Supreme Court of Canada will hear a reference case about the procedures necessary to effect Senate reform. This is the first time the SCC will take an in-depth look at the meaning of Part V of the Constitution Act, 1982, which sets out the procedure for amending the Constitution of Canada.

What follows is a chart of the position taken on each question, by each participant in the reference case, based on the written arguments (factums) filed with the Court. The Court retained John Hunter, Q.C., and Daniel Jutras as amici curiae (friends of the court); they submitted a joint factum but, as noted below, took different positions on one of the points in issue. The other participants are: the attorneys general of all provinces and all territories except Yukon; Senator Serge Joyal; Senator Anne Cools; the Fédération des communautés francophones et acadienne du Canada (FCFA); and the Société de l'Acadie du Nouveau-Brunswick Inc. (SANB).

The reference case was initiated by the federal government, which submitted six questions to the Supreme Court of Canada for its opinion. In the chart below, I have put my own abbreviated paraphrase of each question; the complete questions can be found here (or if you prefer a PDF: English / French).

The oral argument will be heard by the Supreme Court of Canada on Tuesday, Wednesday, and Thursday (November 12 to 14, 2013) and the live webcast should be available here.

In a later post I will have further explanation and commentary.


Q1 [Whether section 44 of Part V (amendments enacted by Parliament unilaterally) authorizes various types of amendment concerning senatorial tenure]


Yes on all subquestions


No on all subquestions


Yes on (a), (b);
No on (c);
Mixed on (d);
Yes, with proviso, on (e), (f), (g)


Yes on (b);
No on the other subquestions


No on (a), (b), (c), (d);
Takes no position on (e), (f), (g)


Takes no position

AG Canada

Amici curiae

AG Nfld & Lab

AG PEI

AG Nova Scotia

AG New Brunswick

AG Manitoba

AG Alberta

AG BC

AG Nunavut

Serge Joyal

Anne Cools

FCFA

AG Ontario

AG Sask

AG Quebec

AG NWT

SANB



Q2 [Whether Parliament may enact legislation for consultative non-binding senatorial elections, as in Bill C-20]

Q3 [Whether Parliament may establish a framework for provincial legislatures to hold consultative non-binding senatorial elections, as in Bill C-7]


Yes on both Q2 and Q3


No on both Q2 and Q3


Takes no position

AG Canada

One amicus curiae

AG Sask

AG Alberta

One amicus curiae

AG Nfld & Lab

AG PEI

AG Nova Scotia

AG New Brunswick

AG Quebec

AG Ontario

AG Manitoba

AG BC

AG Nunavut

Serge Joyal

Anne Cools

FCFA

SANB

AG NWT



Q4 [Whether section 44 of Part V allows repeal of the $4,000 property qualifications for senators]


Yes


Yes, with a proviso about subsection 23(6)


No, with respect to subsection 23(6)


No


Takes no position

AG Canada

AG PEI

AG Nova Scotia

AG New Brunswick

AG Ontario

AG Manitoba

AG Sask

AG BC

Amici curiae

Serge Joyal

AG Quebec

AG Nfld & Lab

AG Alberta

AG Nunavut

AG NWT

Anne Cools

FCFA

SANB



Q5 [Whether an amendment under section 38 of Part V (the 7/50 formula) can abolish the Senate]

Q6 [Whether section 41 of Part V (the unanimity formula) applies to an amendment abolishing the Senate]


Yes on Q5


No on Q5;
Yes on Q6


No on Q5;
Yes on Q6 with a proviso


No on Q5;
No on Q6


Takes no position

AG Canada

AG Sask

AG Alberta

AG BC

Amici curiae

AG Nfld & Lab

AG Nova Scotia

AG New Brunswick

AG Quebec

AG Ontario

AG Manitoba

AG Nunavut

Anne Cools

FCFA

AG NWT

Serge Joyal

AG PEI

SANB

Note: I have AG NWT and Senator Serge Joyal listed together under the heading “No on Q5; Yes on Q6 with a proviso” but the two participants do not have the same proviso in the answer to Question 6. The Northwest Territories AG gives this answer to Question 6: “YES, with the added condition that the federal government must consider and represent the best interests of the Northwest Territories.” Senator Joyal gives this answer: “yes, but only after accommodating the interests of the Aboriginal Peoples of Canada.”

Tags: amendment of the constitution of canada, constitutional amendment, constitutional law, politics, senate of canada, senate reform, supreme court of canada
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