December 12th, 2013

Senate Reform reference case — background


The Supreme Court of Canada heard a case last month whose result will affect the next century of Canadian history. The issue is the interpretation of Part V of the Constitution Act, 1982, the procedures for amending the Constitution of Canada.

The six questions to be decided in this reference case relate to Senate reform. The SCC is being asked whether certain proposals for Senate reform can be implemented by the federal Parliament unilaterally (Questions 1 to 4), and whether the Senate could be abolished under the “7/50 formula” (Questions 5 and 6). But the SCC’s opinion will have ramifications on any major future constitutional amendment proposal (not just Senate reform), because this case will determine the interpretive approach toward the constitutional amendment procedures that were added to the Constitution in 1982. The federal government argues that the Court’s interpretation of Part V should stick close to the plain meaning of the text. Most provincial governments and other participants in the case are arguing that the Court should consider the constitutional history and the entire context, including “unwritten principles” of our constitutional system, thus giving effect in its interpretation to the underlying purposes of Part V.

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