Mathew Englander (mathew5000) wrote,
Mathew Englander

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.)

Framing the issue

The Attorney General of Canada’s factum frames the issue, on Questions 2 and 3, as whether the legislation would change the method of selecting Senators. In my view, the issue ought to be framed as whether the legislation is consistent with the Constitution Act, 1867.

The key point is that Part V of the Constitution Act, 1982 sets the conditions for amendments to the Constitution of Canada, and only for amendments to the Constitution of Canada — Part V has nothing to say about ordinary legislation that is merely relevant to the Constitution.

Looking at the provisions of Part V, you see that each of sections 38, 41, 42, 43, and 47 begins with the same seven words: “An amendment to the Constitution of Canada”. The term “Constitution of Canada” is defined in subsection 52(2) of the Constitution Act, 1982 to include a specific, listed set of statutes and orders. Thus, when the term “Constitution of Canada” appears in Part V, it is not referring to just any kind of law or practice that can be described as constitutional in the broadest sense. Rather, the term “Constitution of Canada” has a precise meaning, and “an amendment to the Constitution of Canada” is, obviously, an amendment to some component of the Constitution of Canada.

This is not particularly complex, but confusion can arise because of different meanings of the word “constitutional” with a lower-case c, and the legally-defined term “Constitution of Canada”, with a capital C. For example, political scientists might speak of a novel judicial interpretation of constitutional provisions as being a type of “informal constitutional amendment”. But legally, an “amendment to the Constitution of Canada” is formal and explicit. A process of “informal constitutional amendment”, in the political-science sense, does not formally amend the Constitution of Canada and therefore is not subject to the requirements of Part V.

(This major semantic distinction between “Constitution” and “constitution” is analogous to the difference in meaning between “Parliament” and “parliament”. With a capital P, “Parliament” means the Parliament of Canada, whereas with a lower-case p, the word “parliamentary” is often used in reference to provincial legislatures, or in phrases like “parliamentary procedure” that apply in many contexts other than the federal Parliament.)

Part V does not apply to an “implicit amendment” to the Constitution of Canada because there is no such thing as an implicit amendment to the Constitution of Canada! Under our constitutional framework since Patriation, the Constitution of Canada is a defined term and amendments to it must be expressly made.

A law that touches on constitutional matters (without expressly amending the Constitution) is valid if it is consistent with the Constitution.

Normally in constitutional litigation, there is no confusion on this point. Legislation is challenged on the basis that it is inconsistent with some provision of the Constitution and therefore of no force or effect (pursuant to subsection 52(1) of the Constitution Act, 1982).

For some reason, the validity of the senatorial-election legislation was argued differently. Instead of addressing whether the legislation was consistent with the Constitution, participants in the case, on both sides, addressed whether the legislation was a “change” in the method of selecting Senators. For example, Ontario’s factum says, at paragraph 47:
In substance, both Bill C-20 and Bill C-7 change the method of selection of Senators from an appointed system to an elected system. Both Bills therefore constitute an amendment in relation to the method of selecting Senators and require use of the general 7/50 amending procedure under paragraph 42(1)(b) of the Constitution Act, 1982. [emphasis in original]
On the other side, the federal AG argues that there is no change, but appears to concede that legislation which does change the method of selecting Senators would require provincial participation under the 7/50 formula, in paragraphs 139-140 of the factum of the federal AG:
There is no change to the manner in which persons are summoned to the Senate pursuant to s. 24 of the Constitution Act, 1867. The consultative nature of the process means that the Governor General retains the legal power to summon qualified persons to the Senate and the Prime Minister retains his conventionally-recognized discretion to recommend to the Governor General anyone who meets the basic qualifications, whether or not the person has been chosen in a consultative process.
This is not a change to the “method of selecting Senators” because the essential discretion of the Prime Minister is preserved, not removed. The consultation process injects an element of transparency and accountability to the process since the Prime Minister may pay a political price for passing over the winner of the nominee election. But absent outright removal of the Prime Minister’s authority to propose, or the Governor General’s to summon, or a transfer of the appointment power to the provinces, this is not a change to the “method of selecting.” [paragraphs 140–141, footnote omitted]
In unnecessarily framing the issue as whether there is a change to the method of selecting senators, the argument of the federal AG seems pretty weak. The whole point of the legislation is to infuse democracy into how senators are selected. It seems like a “change” to go from a system where the PM has free rein in choosing senators, to a system where an election is held and the results submitted to the PM (who must consider the election winner but would retain the power to choose someone else).

Why then do I believe the legislation is valid?

Because contrary to the position of the Attorney General of Ontario, and contrary to the concession apparently made by the Attorney General of Canada, Parliament is permitted to unilaterally “change” the method for selecting Senators as long as the change does not alter the Constitution of Canada, and remains consistent with the Constitution of Canada. It is worth setting out Section 42 in full:
42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):
(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;
(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
(d) subject to paragraph 41(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories; and
(f) notwithstanding any other law or practice, the establishment of new provinces.

(2) Subsections 38(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1).
Opponents of the federal government’s proposals tend to skip over the words “to the Constitution of Canada” in subsection 42(1). (See for example, the factums of the Attorney General of Quebec at paragraph 163, of the Attorney General of Ontario at paragraph 47, of the Attorney General of Nova Scotia at paragraph 47, and of the Attorney General of Manitoba at paragraph 25.)

But section 42 does not say any change in relation to the method of selecting Senators must be made in accordance with the 7/50 formula. The section says an amendment to the Constitution of Canada in relation to the method of selecting Senators is subject to the 7/50 formula. Section 42 says nothing about changes to the method of selecting Senators accomplished otherwise than by an amendment to the Constitution of Canada.

A look at the preceding section (section 41) illustrates this point. Section 41 sets out the type of constitutional amendments covered by the “unanimity” formula (requiring consent of the House of Commons and every province’s legislative assembly). The first sixteen words of sections 41 and 42 are identical: “An amendment to the Constitution of Canada in relation to the following matters may be made”. Section 41 continues by setting out the unanimity formula, while subsection 42(1) continues by referencing the 7/50 formula. When exactly the same words begin two consecutive provisions, those words should be interpreted identically in both provisions.

In section 41, one of the matters listed is “the use of the English or the French language” (subject to section 43, not relevant here).

Does that mean that any kind of legislation in relation to the use of English or French, such as a change to section 6 of the Consumer Packaging and Labelling Regulations, requires the assent of every province? Of course not. It is changes to the provisions of the Constitution of Canada in relation to the use of English or French across the country that are covered by paragraph 41(c).

Just as it would be untenable to interpret paragraph 41(c) as applying to legislation that changes the use of English or French but does not purport to amend the Constitution, it is untenable to interpret paragraph 42(1)(b) as applying to legislation that changes the method of selecting Senators but does not purport to amend the Constitution.

The federal AG’s strategic error

The Attorney General of Canada bases his argument on the discretion of the Prime Minister being preserved. Bill C-20 and Bill C-7 both contemplate non-binding votes on nominees for the Senate. Under Bill C-20, the Governor in Council was permitted (though not required) to order a “consultation of the electors” in conjunction with either a federal or provincial general election. The consultation would result in a “list of selected nominees” that the Chief Electoral Officer would submit to the Prime Minister and publish in the Canada Gazette, although there was no requirement for the Prime Minister to pay any attention to the list of selected nominees. Under Part 1 of Bill C-7, any province or territory could enact legislation providing for elections to select Senate nominees. Then, if the legislation meets certain conditions, the Prime Minister would have to “consider” those nominees when making recommendations to the Governor General on appointments to the Senate.

Several participants in the SCC reference noted that reading Bill C-7 in its entire context (particularly the preamble of the Bill, and sections 1 and 2 of the Schedule of the Bill), as well as considering extrinsic evidence like statements of Prime Minister Stephen Harper (who said “the government intends to table a [bill] to create an elected Senate”), the true purpose of the legislation was to transform the Senate into an elected chamber. During the hearing, some of the SCC judges questioned counsel as to whether, even though on paper the prime minister need merely “consider” the names, in reality would he or she not be forced to appoint the election winner, because the political fallout would be too great, if the PM refused to appoint the candidate democratically elected in an election held under a framework set out by federal legislation.

In my view, such questions demonstrate the strategic error made by counsel for the Attorney General in framing the issue. Properly framed, the issue is whether Bill C-7 is inconsistent with any provision of the Constitution of Canada (not whether Bill C-7 would result in an elected Senate).

The Constitution and responsible government

Because the Constitution of Canada does not even mention the prime minister’s role in senatorial appointments, in my view senatorial-election legislation would be valid even if it did require the prime minister to recommend to the Governor General that the election winner be appointed.

By the constitutional convention of responsible government, the Governor General is bound to follow the prime minister’s recommendations regarding senatorial appointments. But the constitutional convention is irrelevant to the court’s determination of whether the legislation is inconsistent with the Constitution of Canada. The important point to keep straight is, the Constitution of Canada is a defined term which does not include constitutional conventions.

In any event, a statute that required the prime minister to recommend, for a senatorial appointment, the winner of an election, would be perfectly consistent with the constitutional convention that the Governor General must take the advice of the prime minister on senatorial appointments. Also, this hypothetical statute would be consistent with sections 24, 26, and 32 of the Constitution Act, 1867, giving the Governor General the power to summon qualified persons to the Senate.

We know that currently, the real (de facto) power to choose senators lies with the prime minister, whose current discretion is unfettered (aside from the qualifications as to age, nationality, property, and residence mentioned in section 23 of the Constitution Act, 1867). Bill C-7 would slightly abridge the PM’s power by legally requiring the PM to consider the views of electors as to their preferred senator. The hypothetical statute that I am positing would entirely remove the PM’s de facto power to choose senators, transferring that power to electors. But in neither case would this conflict with the Constitution of Canada, which says nothing about the PM’s de facto power to choose senators. Under the Constitution, senators are appointed by the Governor General. That would not change under Bill C-20, under Bill C-7, or under my hypothetical statute. Nor would there be any change to the constitutional convention of responsible government under any of this legislation.

Some of the participants in the SCC reference described the constitutional convention in broader terms, asserting that the prime minister’s “unfettered discretion” is an element of the constitutional convention. See the factum of the amici curiae at paragraph 113, and the factum of the Attorney General of Newfoundland & Labrador, which states at paragraph 39:
By virtue of a longstanding constitutional convention, the Prime Minister exercises unfettered discretion to recommend to the Governor General the appointment of qualified persons to become Senators. The Governor General then accepts these recommendations and summons these qualified persons to the Senate pursuant to s. 24 of the Constitution Act, 1867.
That is incorrect. The PM’s discretion in recommending senatorial appointees has been unfettered until now only because no law has fettered it, not because of any constitutional convention. The absence of a law covering a certain subject does not produce a constitutional convention prohibiting any regulation of that subject. For example, before 2007 there were no legal restrictions on former ministers of the Crown entering into government contracts or making representations to the government on behalf of new clients. This changed with the enactment of the Conflict of Interest Act. But it would be absurd to say that this Act altered a constitutional convention whereby ministers of the Crown had an “unfettered” right to lobby government after they leave office.

(In any event, constitutional conventions by definition are not legally binding. A statute is legally valid even if it conflicts with a constitutional convention.)

The instrument setting out the Prime Minister’s power to recommend senatorial appointments is Order-in-Council P.C. 1935-3374, made October 25, 1935. It provides that recommendations of certain appointments, including the appointment of Senators, are “the special prerogative of the Prime Minister”. This 1935 order-in-council, which you can read in a nice PDF version from Library and Archives Canada, is the last in a series begun with an order-in-council of May 1, 1896 that was typically re-issued each time a new prime minister was sworn in, up to 1935. (See the appendix to an article by A.D.P. Heeney, citing remarks made in the House of Commons by Prime Minister William Lyon Mackenzie King.)

Suppose the 1935 order-in-council were amended, either by an Act of Parliament or a simple order-in-council, to provide that recommendations to the Governor General concerning the appointment of senators would henceforth be the prerogative of a different minister of the Crown, say the minister of finance, not the prime minister. Would such an amendment be valid? The logic of the argument made by the AG of Ontario, and other participants answering “no” on Questions 2 and 3, suggests that a constitutional amendment under the 7/50 formula would be needed even to transfer the prerogative of making senatorial recommendations to the minister of finance because it would be a change in the method of selecting senators. It is peculiar, however, to argue that this federal order-in-council, which is not part of the Constitution of Canada, cannot be amended except with the permission of seven provinces having 50% of the population of all the provinces.

Legislative history of paragraph 42(1)(b)

One argument made about the interpretation of paragraph 42(1)(b) is that the phrase “method of selecting Senators” is clearly broader than just the Governor General’s role in summoning Senators. For example, this is paragraph 51 of the Ontario AG’s factum:
If the drafters of paragraph 42(1)(b) had intended to limit it only to changes to the process of formal appointment by the Governor General, as the Attorney General of Canada suggests in his factum, they would have used language like that found in the analogous exception in the Fulton-Favreau formula: “the requirements of the Constitution of Canada for the summoning of persons to the Senate by the Governor General in the Queen’s name.” Instead, as Professor Côté notes, they chose the generic language of “in relation to … the method of selection of Senators.” That language captures not only directly creating an elected Senate by amending the Constitution to expressly provide for Senate elections, but also indirectly creating an elected Senate by enacting legislation which leaves the Governor General’s formal appointment power unchanged but in substance will create over time an elected Senate. [citations omitted]
This argument is easily refuted. The amendment procedures in Part V are drafted so as to remain meaningful and effective in respect of subsequent amendments, after an amendment has been made. So for example, suppose that next year, seven provincial legislatures and the federal Parliament agree on a constitutional amendment for Senate reform, and under the 7/50 formula they all adopt a resolution making various amendments to sections 21 through 36 of the Constitution Act, 1867, including removing mention of the Governor General’s power to “summon” senators. Paragraph 42(1)(b) would remain in place and still cover subsequent amendments after this one, in relation to “the method of selecting Senators”. That is the reason the drafters worded that provision this way; if paragraph 42(1)(b) said “the summoning of Senators”, that phrasing would become irrelevant after a constitutional amendment that changed the way Senators were appointed.


In a nutshell, my argument is this: by its wording, section 42 applies to an “amendment to the Constitution of Canada”. The Constitution of Canada is a term defined in section 52 of the Constitution Act, 1982. The Quebec Court of Appeal erred (in its opinion that I summarized last week) by finding that subsection 42(1) would apply to any change, by whatever means, in relation to the method of selecting Senators. The correct view is that Parliament can legislate on the method of selecting Senators so long as the legislation is consistent with the provisions of the Constitution. In particular, Parliament has legislative authority over the prime minister of Canada, and may by legislation impose obligations on him or her, including obligations relating to the prime minister’s recommendations on senatorial appointments. Parliament may thus amend or repeal Order-in-Council P.C. 1935-3374, for example. As the office of the prime minister is not mentioned in the Constitution Act, 1867, legislation imposing duties on the Prime Minister will be consistent with section 24 of that Act.

My argument here goes further than that of the Attorney General of Canada (or that of the three other participants in the SCC reference who advocated a Yes answer on Questions 2 and 3, namely the AG of Saskatchewan, the AG of Alberta, and the amicus curiae John J.L. Hunter). My argument does not depend on the voting process contemplated being described as a “consultation” or “plebiscite” rather than a true election. My argument does not depend on the prime minister retaining some discretion in the legislation, to reject a senatorial candidate who was elected by voters.

Some people might describe my argument as “arid legal formalism” (see the factum of the Ontario AG, at paragraph 22) or “the epitome of putting form over substance” (see the factum of the intervener Senator Anne C. Cools, at paragraph 118). But in fact, my argument — while adhering faithfully to the words in the Constitution — is fully consistent with the “living tree” or “contextual” approach to constitutional interpretation.

There is a clear analogy between the famous Persons Case and the issue of the validity of legislated senatorial elections. In 1929, the Judicial Committee of the Privy Council ruled women are ‘persons’ for the purposes of section 24 of what is now the Constitution Act, 1867, reversing the Supreme Court of Canada which had decided women were not eligible to be appointed as senators.

The Privy Council opinion (under the style of cause Edwards v. Attorney General of Canada) set out the “living tree doctrine” for interpreting the British North America Act (as it was then called): “The Act should be on all occasions interpreted in a large, liberal and comprehensive spirit, considering the magnitude of the subjects with which it purports to deal in very few words.”

Even though it was envisioned in 1867 that senators would all be men, and for several decades all senators in fact were men, there is no specific language in the Constitution prohibiting female senators. Therefore women are legally eligible to be summoned to the Senate.

Similarly, we may say the following:

Even though it was envisioned in 1867 that senators would be unelected, and for over a century all senators in fact were unelected, there is no specific language in the Constitution prohibiting the election of senators. Therefore Parliament may legislate a scheme whereby elected nominees would be summoned to the Senate.

At the time of Confederation, Canada’s “founding fathers” felt that having two elected chambers in Parliament would be too much democracy. They specifically chose to create a Senate appointed from those holding substantial property interests, so that the elected House of Commons could not run roughshod over the interests of the wealthy.

In modern times, we consider democracy to be of fundamental importance. The SCC has specifically recognized that democracy is one of four underlying principles that are the lifeblood of Canada’s constitution. It would be odd if the SCC now decided to ignore the express terms of the constitutional text, in order to frustrate the federal government’s proposal to make the Senate more democratic. Yet that is what the Quebec Court of Appeal did, and what the Attorneys General of Ontario, Quebec, and six other provinces are urging the SCC to do.

I find it particularly odd that the governments of the four Atlantic provinces take the position that senatorial elections cannot be legislated. Those four provinces are so greatly overrepresented in the Senate, compared to their share of the population, that any measure which might increase the perceived legitimacy of the Senate is particularly valuable to citizens of those provinces. (New Brunswick’s population, for example, is just one-sixth that of British Columbia, yet New Brunswick has more senators than B.C. has!) It would be one thing if the system up until now had involved some kind of provincial-government participation in the appointment of senators; then it would make sense for the provinces to oppose a unilateral change to that system. But that is not the present system. At present, and for pretty much all of Canadian history, the prime minister of the day has used senatorial appointments mostly to reward political allies and other loyal members of his own political party. You would think that it would be the prime minister and the federal government arguing to keep this system in place, advocating an interpretation of the Constitution that would make this system difficult to alter. But the opposite is true; the current Prime Minister is the one spearheading this reform, which would reduce his personal power in favour of electors voting for their province’s senator, while several provincial governments and other interveners argue in favour of protecting the prime minister’s unfettered and exclusive prerogative of selecting senators.

Maybe Prime Minister Harper has some ulterior political motive for taking his position, but still, I think that if most Canadians were aware of this case they would be disappointed that their provincial governments (except the governments of Alberta and Saskatchewan) were in court arguing against a plan for democratically elected senators.
Tags: amendment of the constitution of canada, constitutional amendment, constitutional law, democracy in canada, politics, senate elections, senate of canada, senate reform, supreme court of canada

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