Reference re Senate Reform

The federal government's plan to introduce consultative elections and term limits for senators required constitutional amendment under the general (7/50) procedure. Abolition would require unanimous consent.

The Harper government referred several Senate reform proposals — consultative elections, fixed terms, removal of property qualification, abolition — asking which Part V amending procedure each required.

Which Part V procedure governs each Senate reform proposal?

Consultative elections and term limits: 7/50. Property qualification removal: Quebec's consent if the QC-specific clause is altered, otherwise s.44. Abolition: unanimous consent.

Constitutional amendments must respect both the explicit text and the implicit constitutional architecture. Changes that alter the fundamental nature and role of an institution engage Part V's general procedure even if the text is silent. Abolition triggers unanimous consent under s.41(e) because removing the Senate would alter the amending formula itself.

The Court emphasised that the Constitution is more than its text. The Senate's role as a chamber of sober second thought is part of the constitutional architecture. Consultative elections would fundamentally alter that role even if the appointment-by-Governor-General mechanism remained nominally intact.

Restated the relationship between text and architecture in constitutional amendment. Halted ad hoc Senate reform. Influences debate over electoral reform and other institutional change.

Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704.

McLachlin CJ, LeBel J, Abella J, Rothstein J, Cromwell J, Moldaver J, Karakatsanis J, Wagner J