December 19th, 2013

Why everyone is wrong about senatorial-election legislation


The Canadian Senate is an unelected body. Senators are chosen by the prime minister. Under the Constitution, the Governor General appoints Senators, but by the constitutional convention of responsible government, the Governor General must take the prime minister’s advice concerning Senate appointments.

Amending the Constitution to make Senators democratically elected would require the participation of provincial legislative assemblies under the 7/50 formula. But can Parliament, by an ordinary statute, provide for the election of Senate nominees? In my view it can.

Questions 2 and 3 of the Senate Reform Reference ask the Supreme Court of Canada for its opinion whether the schemes of senatorial elections set out in Bill C-20 and Part 1 of Bill C-7 are valid. Neither of those bills would require the appointment of the winner of the election. Rather, the legislation can be read as suggesting that the PM recommend the election winner to the Governor General, for appointment to the Senate. Under both bills, however, the PM retains the power to recommend someone other than the election winner, and the Attorney General of Canada argued in court that because of this, the legislation is valid as an ordinary statute.

In my view, the legislation would be valid even if it did require require the PM to recommend the election winner for appointment to the Senate. (I would therefore go further than any of the participants in the reference case before the SCC.) Collapse )