Mathew Englander (mathew5000) wrote,
Mathew Englander

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.

In my view, Part V should be interpreted by following the plain meaning of what it actually says. The living tree doctrine may be a good approach for human rights guarantees such as the Canadian Charter of Rights and Freedoms, and it may also be relevant in interpreting constitutional provisions that date from lifetimes ago and fail to account for major societal changes (e.g. the Same-Sex Marriage Reference), but different considerations apply to a precisely worded code, dating from just 30 years ago, setting out procedures for formal constitutional change. I shall succinctly set out the historical background before looking at the specific questions being asked of the SCC.

Amending powers before Patriation

The Senate of Canada was created by the U.K. Parliament with the British North America Act, 1867 (the “BNA Act”), which served as the constitution of the Dominion of Canada.

From 1867 to 1949, amendments to the BNA Act could be made only by the Imperial Parliament at Westminster (London), even though Canada had become an independent sovereign state by the 1930s.

In 1949, the Canadian Parliament acquired a limited power to amend the constitution, when the U.K. Parliament enacted s. 91(1) of the BNA Act. The Canadian Parliament used this power five times between 1949 and 1982. For example, in 1965, the Canadian Parliament amended the BNA Act to require Senators to retire at age 75 (previously Senators held office for life).

In 1978, the federal government of Pierre Trudeau released a White Paper (A Time for Action), which proposed that Parliament would use the s. 91(1) power to replace the Senate with a House of the Federation, whose members would be chosen by MPs and by members of the provincial legislatures.

Some people (particularly in the governments of the provinces) objected that Parliament did not have the power to make such major changes to the Senate. Thus the question was referred to the Supreme Court of Canada (“SCC”), which heard a reference case in 1979 on whether major Senate reform could be effected by Parliament alone under the 1949 amending power, or would it require an amendment by the U.K. Parliament. The Court found, in the Upper House Reference, that the 1949 amending power authorized Parliament merely to make housekeeping amendments to the BNA Act. The SCC concluded: “it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal process.” In the 2013 reference case, the SCC will have to determine whether that remains an accurate statement of the law, or did the 1982 amending procedures broaden the scope of constitutional amendments that Parliament can enact unilaterally as compared to its 1949 amending power.

The current amending procedures

On April 17, 1982, the Canada Act 1982 came into force, which terminated finally the power of the U.K. Parliament to legislate for Canada, and enacted a set of domestic procedures for amending the Constitution of Canada, found in Part V of the Constitution Act, 1982. (The 1982 “Patriation package” also included the Canadian Charter of Rights and Freedoms. The original BNA Act was renamed the Constitution Act, 1867 and remains an important part of the Constitution of Canada.)

There are five amending formulas in Part V. Which formula to use depends on the nature of the amendment. Certain constitutional amendments would require unanimity: resolutions of the House of Commons, the Senate, and every provincial legislative assembly. Other types of amendment require resolutions of the House of Commons, the Senate, and the legislative assemblies of two-thirds of the provinces together having at least 50% of the population of all the provinces (the “7/50 formula” or “general procedure”). A third formula allows the federal Parliament to make certain constitutional amendments unilaterally. It is those three amending formulas that are most relevant to the SCC reference.

Senate Reform proposals of the present government

After taking office in 2006, the Conservative government introduced two Senate Reform bills in Parliament, one to limit senatorial tenure to eight years, the other to provide for “consultations” with voters on their preferences among senatorial candidates.

These bills were never passed, but versions of them have been reintroduced, with some alterations, over the years. Most recently, Bill C-7, was introduced and debated in the House of Commons; Part 1 of this bill related to senatorial selection while Part 2 related to senatorial tenure.

Reference cases in the Quebec Court of Appeal and the Supreme Court of Canada

In May 2012, the Government of Quebec submitted a reference case to the Quebec Court of Appeal questioning the validity of the federal government’s Bill C-7.

In February 2013 the federal government submitted its own reference case to the SCC, and asked the Quebec Court of Appeal to suspend the hearing of its reference, pending the SCC case, but the Quebec Court of Appeal declined to do this and heard the case in September 2013.

Summary of the Quebec Court of Appeal’s opinion

On October 24, 2013, the Quebec Court of Appeal released its decision. The five judges hearing the case were unanimous.

The QCA emphasized (at paragraphs 4, 6, and 17) the importance of the Senate to “Canada’s founding fathers” who drafted the British North America Act, 1867. Consequently, the QCA held that paragraphs 42(1)(b) and 42(1)(c) of the Constitution Act, 1982 ought to be interpreted broadly:
[32] The four matters set out in section 42 must therefore be given an autonomous interpretation that reflects the importance of the Senate in the pre-confederation compromise. This interpretation should also reflect the historical reality surrounding the adoption of section 42 in 1982, the numerous unsuccessful attempts up to then to abolish, modify or replace the upper house, as well as the Reference re the Upper House.
[33] A teleological interpretative approach must be adopted. Thus, it would be wrong to say that section 44 contains the rule of general application while section 42 enumerates exceptions to Parliament’s power to act unilaterally. The latter provision should not be interpreted so restrictively.
The QCA proceeded (at paragraph 39) to find that the four characteristics of the Senate mentioned in paragraphs 42(1)(b) and (c) are a codification of the SCC’s 1979 Upper House Reference opinion.

In relation to the federal government’s plan for consultative senatorial elections, the QCA’s key holdings are at paragraphs 42 to 44. The QCA held that Parliament cannot legislate “by adopting an ordinary statute relating to the matters for which section 42 recognizes a provincial interest, on the condition it does not formally amend the written text of the Constitution.” The QCA suggested that this type of legislation (which changes the method of selecting senators but does not alter the text of the Constitution) would not comply with the “spirit” of the Constitution.

The QCA interpreted the phrase “the method of selecting Senators” in paragraph 42(1)(b) as referring to the current method of selecting senators, including the process leading to appointment, rather than just the formal power of appointment vested in the Governor General (paragraph 50).

Question 1 of the QCA reference asked the Court whether Bill C-7 was an amendment to the Constitution of Canada in relation to the office of the Governor General, so that its adoption would require unanimity of the provinces pursuant to paragraph 41(a) of the Constitution Act, 1982. The QCA found that nothing in Bill C-7 would have affected the Regal Office or the power of the Governor General to summon persons to the Senate (paragraph 56). The Governor General is (and would continue to be) bound by constitutional convention to exercise the appointment power only on the advice of the Prime Minister of Canada; constitutional conventions are not justiciable but rather can evolve without the necessity for formal amendment (paragraphs 53 to 59). Therefore the QCA answered “no” to Question 1.

Question 2 of the QCA reference asked the Court whether Bill C-7 was an amendment to the Constitution of Canada in relation to the method of selecting Senators, so that it could be adopted only under the 7/50 formula pursuant to paragraph 42(1)(b) of the Constitution Act, 1982. The QCA found, after analysing the preamble of Bill C-7 as well as its legislative framework, that the purpose of the bill was not simply to create a consultative process, but to make the Senate a truly democratic institution (paragraphs 65 to 68). At paragraphs 75 and 85, the QCA held that Bill C-7 was an attempt to significantly amend the current method of selecting senators (which the QCA described as “an appointive process until 75, the age of retirement”), and an attempt to circumvent the applicable amending procedure (the 7/50 formula). Therefore the QCA answered “yes” to Question 2.

The QCA proceeded to deal with the part of Bill C-7 relating to senatorial tenure (setting a nine-year non-renewable term), and found that this aspect of Bill C-7 appears to be an accessory to the part relating to senatorial elections, and therefore the outcome of both parts would be the same (paragraph 79). Furthermore, the QCA held that an amendment to the duration of a Senator’s term could affect both the powers of the Senate and the method of selecting senators (paragraph 82). Therefore, section 44 does not permit Parliament to change the length of a senatorial mandate; such an amendment falls under paragraph 42(1)(b) of the Constitution Act, 1982 and therefore could be made only by the 7/50 formula (paragraphs 83 and 84).

Question 3 of the QCA reference asked the Court whether Bill C-7 was an amendment to the Constitution of Canada relating to the fundamental characteristics and the role of the Senate, so that it could be adopted only under the 7/50 formula pursuant to subsection 38(1) of the Constitution Act, 1982. The QCA held that the matters set out in subsection 42(1) are the only characteristics of the Senate requiring the agreement of the provinces before being amended (paragraph 87), namely its powers and the method of selecting its members (paragraph 42(1)(b) of the Constitution Act, 1982), and the number of senators per province and their residence qualifications (paragraph 42(1)(c)). To consider that there exist other characteristics of the Senate protected implicitly by section 38 would go against a coherent interpretation of Part V, the QCA held (paragraph 88). Therefore the QCA answered “no” to Question 3.

Although the Quebec Court of Appeal had not been asked which amending procedure would be necessary for abolition of the Senate, the court decided the question nevertheless, holding (at paragraph 29) that the unanimity formula (section 41) would apply because abolishing the Senate would amend the Constitution’s amending procedures.

Supreme Court of Canada reference

In an article in Constitutional Forum, Peter J. Carver writes:
If you are going to go to the trouble of asking the Supreme Court of Canada to rule on a major government initiative, you might as well ask the Justices a whole host of questions and give them a raft of alternatives. That at least seems to be the Harper government’s philosophy. One might say they have gone well past the point of wanting to engage in a dialogue with the Court, to that of looking for a rambling after-dinner conversation.
Whereas the QCA reference was closely focused on the constitutional validity of Bill C-7, the six questions (including various subquestions) asked in the SCC reference go beyond the specific measures in Bill C-7. The SCC reference also asks about measures that appeared in previous bills introduced by the government, as well as measures that have not appeared in the government’s proposed legislation. The SCC reference even asks about what formula would apply to an amendment abolishing the Senate, although the Harper Government’s position is that reforming the Senate would be preferable to abolition.

The factums (written argument) of all participants in the SCC case were filed before the QCA rendered its opinion in the Quebec reference, but the oral argument occurred afterward, so some lawyers mentioned the QCA judgment in their oral submissions to the SCC.

In a previous blog entry I set out charts of the participants’ positions on each issue in the reference. The factums are available on the SCC’s web site here, and you can stream the video of the hearing from the SCC web site here or from CPAC here. The hearing was live-tweeted by Carissima Mathen here and here. Some detailed, useful notes on the hearings by Leonid Sirota have been posted here.

In future blog entries, I will delve into the reference questions in more detail, providing my opinion and analysis.
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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