Reference re Senate Reform

Reference re Senate Reform
Collection
Supreme Court Judgments
Date
2014-04-25
Neutral citation
2014 SCC 32
Report
[2014] 1 SCR 704
Case number
35203
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Canada
Subjects
Constitutional law
Notes
SCC Case Information: 35203
Decision Content
SUPREME COURT OF CANADA
Citation: Reference re Senate Reform, 2014 SCC 32
Date: 20140425
Docket: 35203
IN THE MATTER OF a Reference by the Governor in Council concerning
reform of the Senate, as set out in Order in Council P.C. 2013-70,
dated February 1, 2013
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 112)
The Court
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
reference re senate reform
IN THE MATTER OF a Reference by the Governor in Council concerning reform of the Senate, as set out in Order in Council P.C. 2013‑70, dated February 1, 2013
Indexed as: Reference re Senate Reform
2014 SCC 32
File No.: 35203.
2013: November 12, 13, 14; 2014: April 25.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
reference by governor in council
Constitutional law — Canadian institutions — Senate — Constitutional amendment — Whether Parliament can unilaterally set fixed terms for Senators — Whether Parliament can unilaterally implement framework for consultative elections for appointments to Senate — Whether Parliament can unilaterally repeal ss. 23(3) and 23(4) of Constitution Act, 1867 requiring that Senators must own land worth $4,000 in province for which they are appointed and have net worth of at least $4,000 — Whether constitutional amendment abolishing Senate may be accomplished by general amending procedure or whether unanimous consent procedure applies — Constitution Act, 1982, ss. 38(1) (2), 41 (e), 42(1) (b), (c), 43 , 44 .
Pursuant to s. 53 of the Supreme Court Act , the Governor in Council referred the following questions to this Court:
1. In relation to each of the following proposed limits to the tenure of Senators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982 , to make amendments to section 29 of the Constitution Act, 1867 providing for
(a) a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform Act;
(b) a fixed term of ten years or more for Senators;
(c) a fixed term of eight years or less for Senators;
(d) a fixed term of the life of two or three Parliaments for Senators;
(e) a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution Act, 2006 (Senate tenure);
(f) limits to the terms for Senators appointed after October 14, 2008 as set out in subclause 4(1) of Bill C-7, the Senate Reform Act; and
(g) retrospective limits to the terms for Senators appointed before October 14, 2008?
2. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867 , or section 44 of the Constitution Act, 1982 , to enact legislation that provides a means of consulting the population of each province and territory as to its preferences for potential nominees for appointment to the Senate pursuant to a national process as was set out in Bill C-20, the Senate Appointment Consultations Act?
3. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867 , or section 44 of the Constitution Act, 1982 , to establish a framework setting out a basis for provincial and territorial legislatures to enact legislation to consult their population as to their preferences for potential nominees for appointment to the Senate as set out in the schedule to Bill C-7, the Senate Reform Act?
4. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982 , to repeal subsections 23(3) and (4) of the Constitution Act, 1867 regarding property qualifications for Senators?
5. Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act, 1982 , by one of the following methods:
(a) by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside of the Constitution Acts, 1867 to 1982 but that is still part of the Constitution of Canada;
(b) by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or
(c) by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(1) (b) and (c) of the Constitution Act, 1982 ?
6. If the general amending procedure set out in section 38 of the Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent procedure set out in section 41 of the Constitution Act, 1982 apply?
Held: Questions 1, 2, 3 and 5 are answered in the negative. Question 4 is answered in the affirmative with respect to s. 23(4) . A full repeal of s. 23(3) requires a resolution of the legislative assembly of Quebec, pursuant to s. 43 of the Constitution Act, 1982 . Question 6 is answered in the affirmative. The implementation of consultative elections and senatorial term limits requires consent of the Senate, the House of Commons, and the legislative assemblies of at least seven provinces representing, in the aggregate, half of the population of all the provinces (s. 38 and s. 42(1) (b)). The abolition of the Senate requires the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces (s. 41 (e)).
The Senate is one of Canada’s foundational political institutions. It lies at the heart of the agreements that gave birth to the Canadian federation. Despite ongoing criticism and failed attempts at reform, the Senate has remained largely unchanged since its creation. The statute that created the Senate — the Constitution Act, 1867 — forms part of the Constitution of Canada and can only be amended in accordance with the Constitution’s procedures for amendment (s. 52(2) and (3) , Constitution Act, 1982 ). The concept of an “amendment to the Constitution of Canada”, within the meaning of Part V of the Constitution Act, 1982 , is informed by the nature of the Constitution, its underlying principles and its rules of interpretation. The Constitution should not be viewed as a mere collection of discrete textual provisions. It has an architecture, a basic structure. By extension, amendments to the Constitution are not confined to textual changes. They include changes to the Constitution’s architecture, that modify the meaning of the constitutional text.
Part V reflects the political consensus that the provinces must have a say in constitutional changes that engage their interests. It contains four categories of amending procedures. The first is the general amending procedure — the “7/50” procedure — (s. 38 , complemented by s. 42), which requires a substantial degree of consensus between Parliament and the provincial legislatures. The second is the unanimous consent procedure (s. 41 ), which applies to certain changes deemed fundamental by the framers of the Constitution Act, 1982 . The third is the special arrangements procedure (s. 43 ), which applies to amendments in relation to provisions of the Constitution that apply to some, but not all, of the provinces. The fourth is made up of the unilateral federal and provincial procedures, which allow unilateral amendment of aspects of government institutions that engage purely federal or provincial interests (ss. 44 and 45 ).
Question 1: Senatorial Tenure
A change in the duration of senatorial terms would amend the Constitution of Canada, by requiring a modification to the text of s. 29 of the Constitution Act, 1867 . The language of s. 42 of the Constitution Act, 1982 does not encompass changes to the duration of senatorial terms. However, it does not follow that all changes to the Senate that fall outside of s. 42 come within the scope of s. 44 . The unilateral federal amendment procedure is limited. It is not a broad procedure that encompasses all constitutional changes to the Senate which are not expressly included within another procedure in Part V. The history, language, and structure of Part V indicate that s. 38 , rather than s. 44 , is the general procedure for constitutional amendment. Changes that engage the interests of the provinces in the Senate as an institution forming an integral part of the federal system can only be achieved under the general amending procedure. Section 44 , as an exception to the general procedure, encompasses measures that maintain or change the Senate without altering its fundamental nature and role.
The imposition of fixed terms for Senators engages the interests of the provinces by changing the fundamental nature or role of the Senate. Senators are appointed roughly for the duration of their active professional lives. This security of tenure is intended to allow Senators to function with independence in conducting legislative review. The imposition of fixed senatorial terms is a significant change to senatorial tenure. Fixed terms provide a weaker security of tenure. They imply a finite time in office and necessarily offer a lesser degree of protection from the potential consequences of freely speaking one’s mind on the legislative proposals of the House of Commons. The imposition of fixed terms, even lengthy ones, constitutes a change that engages the interests of the provinces as stakeholders in Canada’s constitutional design and falls within the rule of general application for constitutional change — the 7/50 procedure in s. 38 .
Questions 2 and 3: Consultative Elections
Introducing a process of consultative elections for the nomination of Senators would change our Constitution’s architecture, by endowing Senators with a popular mandate which is inconsistent with the Senate’s fundamental nature and role as a complementary legislative chamber of sober second thought. The view that the consultative election proposals would amend the Constitution of Canada is supported by the language of Part V of the Constitution Act, 1982 . The words employed in Part V are guides to identifying the aspects of our system of government that form part of the protected content of the Constitution. Section 42(1) (b) provides that the general amending procedure (s. 38(1) ) applies to constitutional amendments in relation to “the method of selecting Senators”. This broad wording includes more than the formal appointment of Senators by the Governor General and covers the implementation of consultative elections. By employing this language, the framers of the Constitution Act, 1982 extended the constitutional protection provided by the general amending procedure to the entire process by which Senators are “selected”. Consequently, the implementation of consultative elections falls within the scope of s. 42(1) (b) and is subject to the general amending procedure, without the provincial right to “opt out”. It cannot be achieved under the unilateral federal amending procedure. Section 44 is expressly made “subject to” s. 42 — the categories of amendment captured by s. 42 are removed from the scope of s. 44 .
Question 4: Property Qualifications
The requirement that Senators have a personal net worth of at least $4,000 (s. 23(4) , Constitution Act, 1867 ) can be repealed by Parliament under the unilateral federal amending procedure. It is precisely the type of amendment that the framers of the Constitution Act, 1982 intended to capture under s. 44 . It updates the constitutional framework relating to the Senate without affecting the institution’s fundamental nature and role. Similarly, the removal of the real property requirement that Senators own land worth at least $4,000 in the province for which they are appointed (s. 23(3) , Constitution Act, 1867 ) would not alter the fundamental nature and role of the Senate. However, a full repeal of s. 23(3) would render inoperative the option in s. 23(6) for Quebec Senators to fulfill their real property qualification in their respective electoral divisions, effectively making it mandatory for them to reside in the electoral divisions for which they are appointed. It would constitute an amendment in relation to s. 23(6) , which contains a special arrangement applicable to a single province, and consequently would fall within the scope of the special arrangement procedure. The consent of Quebec’s National Assembly is required pursuant to s. 43 of the Constitution Act, 1982 .
Questions 5 and 6: Abolition of the Senate
Abolition of the Senate is not merely a matter relating to its “powers” or its “members” under s. 42(1) (b) and (c) of the Constitution Act, 1982 . This provision captures Senate reform, which implies the continued existence of the Senate. Outright abolition falls beyond its scope. To interpret s. 42 as embracing Senate abolition would depart from the ordinary meaning of its language and is not supported by the historical record. The mention of amendments in relation to the powers of the Senate and the number of Senators for each province presupposes the continuing existence of a Senate and makes no room for an indirect abolition of the Senate. Within the scope of s. 42 , it is possible to make significant changes to the powers of the Senate and the number of Senators. But it is outside the scope of s. 42 to altogether strip the Senate of its powers and reduce the number of Senators to zero. The abolition of the upper chamber would entail a significant structural modification of Part V. Amendments to the Constitution of Canada are subject to review by the Senate. The Senate can veto amendments brought under s. 44 and can delay the adoption of amendments made pursuant to ss. 38 , 41 , 42 , and 43 by up to 180 days. The elimination of bicameralism would render this mechanism of review inoperative and effectively change the dynamics of the constitutional amendment process. The constitutional structure of Part V as a whole would be fundamentally altered. Abolition of the Senate would therefore fundamentally alter our constitutional architecture — by removing the bicameral form of government that gives shape to the Constitution Act, 1867 — and would amend Part V, which requires the unanimous consent of Parliament and the provinces under s. 41 (e) of the Constitution Act, 1982 .
Cases Cited
Referred to: Projet de loi fédéral relatif au Sénat (Re), 2013 QCCA 1807 (CanLII); Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912; Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Edwards v. Attorney‑General for Canada, [1930] A.C. 124; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837.
Statutes and Regulations Cited
Bill C‑7, An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits, 1st Sess., 41st Parl., 2011, cl. 3, Sch., cl. 1.
Bill C‑20, An Act to provide for consultations with electors on their preferences for appointments to the Senate, 2nd Sess., 39th Parl., 2007.
Bill C‑60, An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters, 3rd Sess., 30th Parl., 1978, cls. 62 to 70.
Bill S‑4, An Act to amend the Constitution Act, 1867 (Senate tenure), 1st Sess., 39th Parl., 2006.
Constitution Act, 1867 , preamble, ss. 17 , 22 , 23(3) , (4) , (5) , (6) , 24 , 29 , 32 , 35 , 37 , 53 , 91(1) , 92(1) .
Constitution Act, 1965, S.C. 1965, c. 4, s. 1.
Constitution Act, 1982 , Part V, ss. 38, 41, 42, 43, 44, 45, 47, 52.
Supreme Court Act, R.S.C. 1985, c. S‑26, s. 53 .
Authors Cited
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 5e éd. Cowansville, Qué.: Yvon Blais, 2008.
Cameron, Jamie. “To Amend the Process of Amendment”, in Gérald‑A. Beaudoin et al., Federalism for the Future: Essential Reforms. Montréal: Wilson & Lafleur, 1998, 315.
Canada. Constitutional Accord: Canadian Patriation Plan. Ottawa, 1981.
Canada. Constitutional Conference: Proceedings. Ottawa: Information Canada, 1971.
Canada. Department of Justice. The Amendment of the Constitution of Canada. Ottawa: Queen’s Printer, 1965 (Minister: Guy Favreau).
Canada. Legislature. Parliamentary Debates on the subject of the Confederation of the British North American Provinces, 3rd Sess., 8th Provincial Parliament of Canada. Quebec: Hunter, Rose & Co., 1865.
Canada. Minister of State for Federal‑Provincial Relations. Constitutional Reform: House of the Federation. Ottawa: Government of Canada, 1978 (Minister: Marc Lalonde).
Canada. Senate and House of Commons. Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 53, 1st Sess., 32nd Parl., February 4, 1981, pp. 50, 67‑68.
Canada. Senate and House of Commons. The Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada: Final Report. Ottawa: Queen’s Printer, 1972 (Joint Chairs: Gildas L. Molgat and Mark MacGuigan).
Canada. Standing Senate Committee on Legal and Constitutional Affairs. Report on Certain Aspects of the Canadian Constitution. Ottawa: Minister of Supply and Services, 1980 (Sub‑committee Chair: Maurice Lamontagne).
Canada. Task Force on Canadian Unity. A Future Together: Observations and Recommendations. Ottawa: Minister of Supply and Services, 1979 (Co‑chairs: Jean‑Luc Pepin and John P. Robarts).
Canada. The Canadian Constitution 1980: Proposed Resolution respecting the Constitution of Canada. Ottawa: Government of Canada, 1980.
Cheffins, Ronald I. “The Constitution Act, 1982 and the Amending Formula: Political and Legal Implications” (1982), 4 S.C.L.R. 43.
Côté, Charles‑Emmanuel. “L’inconstitutionnalité du projet d’élections fédérales sénatoriales” (2010), 3 R.Q.D.C. 81.
Cyr, Hugo. “L’absurdité du critère scriptural pour qualifier la constitution” (2012), 6 J.P.P.L. 293.
Desserud, Don. “Whither 91.1? The Constitutionality of Bill C‑19: An Act to Limit Senate Tenure”, in Jennifer Smith, ed., The Democratic Dilemma: Reforming the Canadian Senate. Montréal and Kingston: McGill‑Queen’s University Press, 2009, 63.
Heard, Andrew. “Constitutional Doubts about Bill C‑20 and Senatorial Elections”, in Jennifer Smith, ed., The Democratic Dilemma: Reforming the Canadian Senate. Montréal and Kingston: McGill‑Queen’s University Press, 2009, 81.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 1. Toronto: Carswell, 2007 (updated 2013, release 1).
McCormick, Peter, Ernest C. Manning and Gordon Gibson. Regional Representation: The Canadian Partnership. Calgary: Canada West Foundation, 1981.
Monahan, Patrick J., and Byron Shaw. Constitutional Law, 4th ed. Toronto: Irwin Law, 2013.
Newman, Warren J. “Defining the ‘Constitution of Canada’ Since 1982: The Scope of the Legislative Powers of Constitutional Amendment under Sections 44 and 45 of the Constitution Act, 1982 ” (2003), 22 S.C.L.R. (2d) 423.
Newman, Warren J. “Living with the Amending Procedures: Prospects for Future Constitutional Reform in Canada” (2007), 37 S.C.L.R. (2d) 383.
Pelletier, Benoît. La modification constitutionnelle au Canada. Scarborough, Ont.: Carswell, 1996.
Pelletier, Benoît. “Réponses suggérées aux questions soulevées par le renvoi à la Cour suprême du Canada concernant la réforme du Sénat” (2013), 43 R.G.D. 445.
Pinard, Danielle. “The Canadian Senate: An Upper House Criticized Yet Condemned to Survive Unchanged?”, in Jörg Luther, Paolo Passaglia and Rolando Tarchi, eds., A World of Second Chambers: Handbook for Constitutional Studies on Bicameralism. Milan: Giuffrè, 2006, 459.
Scott, Stephen A. “Pussycat, Pussycat or Patriation and the New Constitutional Amendment Processes” (1982), 20 U.W.O. L. Rev. 247.
Smith, David E. The Canadian Senate in Bicameral Perspective. Toronto: University of Toronto Press, 2003.
Tremblay, Guy. “La portée élargie de la procédure bilatérale de modification de la Constitution du Canada” (2011), 41 R.G.D. 417.
Walters, Mark D. “The Constitutional Form and Reform of the Senate: Thoughts on the Constitutionality of Bill C‑7” (2013), 7 J.P.P.L. 37.
Walters, Mark D. “Written Constitutions and Unwritten Constitutionalism”, in Grant Huscroft, ed., Expounding the Constitution: Essays in Constitutional Theory. New York: Cambridge University Press, 2008, 245.
Whyte, John D. “Senate Reform: What Does the Constitution Say?”, in Jennifer Smith, ed., The Democratic Dilemma: Reforming the Canadian Senate. Montréal and Kingston: McGill‑Queen’s University Press, 2009, 97.
Woehrling, José. “Le recours à la procédure de modification de l’article 43 de la Loi constitutionnelle de 1982 pour satisfaire certaines revendications constitutionnelles du Québec”, in Pierre Thibault, Benoît Pelletier and Louis Perret, eds., Essays in Honour of Gérald‑A. Beaudoin: The Challenges of Constitutionalism. Cowansville, Qué.: Yvon Blais, 2002, 449.
REFERENCE by the Governor in Council concerning reform of the Senate, as set out in Order in Council P.C. 2013‑70, dated February 1, 2013. Questions 1, 2, 3 and 5 are answered in the negative. Question 4 is answered in the affirmative with respect to s. 23(4) . A full repeal of s. 23(3) requires a resolution of the legislative assembly of Quebec, pursuant to s. 43 of the Constitution Act, 1982 . Question 6 is answered in the affirmative.
Robert J. Frater, Christopher M. Rupar and Warren J. Newman, for the Attorney General of Canada.
Michel Y. Hélie and Josh Hunter, for the intervener the Attorney General of Ontario.
Jean‑Yves Bernard and Jean‑François Beaupré, for the intervener the Attorney General of Quebec.
Edward A. Gores, Q.C., for the intervener the Attorney General of Nova Scotia.
Denis Thériault and David D. Eidt, for the intervener the Attorney General of New Brunswick.
Heather S. Leonoff, Q.C., and Charles Murray, for the intervener the Attorney General of Manitoba.
Nancy E. Brown, for the intervener the Attorney General of British Columbia.
D. Spencer Campbell, Q.C., Rosemary S. Scott, Q.C., and Jonathan M. Coady, for the intervener the Attorney General of Prince Edward Island.
Graeme G. Mitchell, Q.C., and J. Thomson Irvine, for the intervener the Attorney General for Saskatchewan.
Margaret Unsworth, Q.C., Randy Steele and Donald Padget, for the intervener the Attorney General of Alberta.
Philip Osborne and Barbara G. Barrowman, for the intervener the Attorney General of Newfoundland and Labrador.
Bradley E. Patzer and Anne F. Walker, for the intervener the Attorney General of the Northwest Territories.
Norman M. Tarnow and Adrienne E. Silk, for the intervener the Attorney General of Nunavut.
The Honourable Serge Joyal, P.C., on his own behalf.
Nicholas Peter McHaffie and Paul Beaudry, for the intervener the Honourable Anne C. Cools.
Sébastien Grammond, Mark C. Power, Jennifer Klinck and Perri Ravon, for the intervener Fédération des communautés francophones et acadienne du Canada.
Serge Rousselle, for the intervener Société de l’Acadie du Nouveau‑Brunswick Inc.
Daniel Jutras, John J. L. Hunter, Q.C., Brent B. Olthuis, Claire E. Hunter and Kate Glover, for the amicus curiae.
The following is the opinion of
The Court —
I. Introduction
[1] The Senate is one of Canada’s foundational political institutions. It lies at the heart of the agreements that gave birth to the Canadian federation. Yet from its first sittings, voices have called for reform of the Senate and even, on occasion, for its outright abolition.
[2] The Government of Canada now asks this Court, under s. 53 of the Supreme Court Act, R.S.C. 1985, c. S-26 , to answer essentially four questions: (1) Can Parliament unilaterally implement a framework for consultative elections for appointments to the Senate? (2) Can Parliament unilaterally set fixed terms for Senators? (3) Can Parliament unilaterally remove from the Constitution Act, 1867 the requirement that Senators must own land worth $4,000 in the province for which they are appointed and have a net worth of at least $4,000? and (4) What degree of provincial consent is required to abolish the Senate?
[3] We conclude that Parliament cannot unilaterally achieve most of the proposed changes to the Senate, which require the consent of at least seven provinces representing, in the aggregate, at least half of the population of all the provinces. We further conclude that abolition of the Senate requires the consent of all of the provinces. Abolition of the Senate would fundamentally change Canada’s constitutional structure, including its procedures for amending the Constitution, and can only be done with unanimous federal-provincial consensus.
[4] This said, our conclusions are tied to the specific questions that were put before the Court. Our role is not to speculate on the full range of possible changes to the Senate. Rather, the proper role of this Court in the ongoing debate regarding the future of the Senate is to determine the legal framework for implementing the specific changes contemplated in the questions put to us. The desirability of these changes is not a question for the Court; it is an issue for Canadians and their legislatures.
II. The Reference Questions
[5] On February 1, 2013, the Governor in Council issued Order in Council P.C. 2013-70, which referred the following questions to this Court, under s. 53 of the Supreme Court Act :
1. In relation to each of the following proposed limits to the tenure of Senators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982 , to make amendments to section 29 of the Constitution Act, 1867 providing for
(a) a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform Act;
(b) a fixed term of ten years or more for Senators;
(c) a fixed term of eight years or less for Senators;
(d) a fixed term of the life of two or three Parliaments for Senators;
(e) a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution Act, 2006 (Senate tenure);
(f) limits to the terms for Senators appointed after October 14, 2008 as set out in subclause 4(1) of Bill C-7, the Senate Reform Act; and
(g) retrospective limits to the terms for Senators appointed before October 14, 2008?
2. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867 , or section 44 of the Constitution Act, 1982 , to enact legislation that provides a means of consulting the population of each province and territory as to its preferences for potential nominees for appointment to the Senate pursuant to a national process as was set out in Bill C-20, the Senate Appointment Consultations Act?
3. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867 , or section 44 of the Constitution Act, 1982 , to establish a framework setting out a basis for provincial and territorial legislatures to enact legislation to consult their population as to their preferences for potential nominees for appointment to the Senate as set out in the schedule to Bill C-7, the Senate Reform Act?
4. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982 , to repeal subsections 23(3) and (4) of the Constitution Act, 1867 regarding property qualifications for Senators?
5. Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act, 1982 , by one of the following methods:
(a) by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside of the Constitution Acts, 1867 to 1982 but that is still part of the Constitution of Canada;
(b) by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or
(c) by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(1) (b) and (c) of the Constitution Act, 1982 ?
6. If the general amending procedure set out in section 38 of the Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent procedure set out in section 41 of the Constitution Act, 1982 apply?
[6] To illustrate the content of the proposed changes, the questions refer to Bills S-4, C-20, and C-7. While Bills S-4 and C-20 were tabled respectively in 2006 and 2007, Bill C-7 was given first reading on June 21, 2011. All three bills died on the Order Paper.
[7] Bill S-4 would replace the current senatorial term of office — which lasts until the attainment of the age of 75 — with renewable eight-year terms.
[8] Bills C-20 and C-7 each set out a detailed framework for consultative elections of “nominees” for Senate office. Under Bill C-20, the names of the winners of national consultative elections would be submitted to the Prime Minister of Canada, for consideration by him or her when recommending nominees to the Governor General for vacant Senate seats.
[9] Similarly, Bill C-7 provides that Senators would sit for a non-renewable nine-year term and sets out a model statute for provincial and territorial legislation creating consultative elections. It provides that the Prime Minister “must” consider names from the lists of successful candidates: cl. 3. Its appended model statute states the principle that Senators “should be chosen” from among those candidates: cl. 1 of the Schedule.
[10] This Court is not the first to consider the questions posed by the Reference. When Parliament introduced Bill C-7, the Government of Quebec asked the Quebec Court of Appeal to advise whether the proposed changes to the Senate could be achieved unilaterally by Parliament.
[11] The Court of Appeal held that Parliament could not unilaterally change the terms for Senators or introduce consultative elections for the appointment of Senators: Projet de loi fédéral relatif au Sénat (Re), 2013 QCCA 1807 (CanLII) (the “Quebec Senate Reference”). Rather, it found that these changes fall under s. 42 of the Constitution Act, 1982 and require the consent of the legislative assemblies of at least two-thirds of the provinces that represent, in the aggregate, at least half of the population of all the provinces. In its view, the framers of the Constitution Act, 1982 intended to constitutionally entrench the status quo with respect to the Senate until the day when broad federal-provincial consensus could be obtained on the matter of Senate reform.
[12] Although the Court of Appeal was not directly asked to consider how the Senate could be abolished, it expressed the view that abolition would require unanimous provincial consent: para. 29. It reasoned that abolition of the Senate would amend by implication the procedures for constitutional amendment in Part V of the Constitution Act, 1982 , something which can only be done with unanimous provincial consent under s. 41(e) of the Act.
III. The Senate
[13] It is appropriate to briefly introduce the institution at the heart of this Reference.
[14] The framers of the Constitution Act, 1867 sought to adapt the British form of government to a new country, in order to have a “Constitution similar in Principle to that of the United Kingdom”: preamble. They wanted to preserve the British structure of a lower legislative chamber composed of elected representatives, an upper legislative chamber made up of elites appointed by the Crown, and the Crown as head of state.
[15] The upper legislative chamber, which the framers named the Senate, was modeled on the British House of Lords, but adapted to Canadian realities. As in the United Kingdom, it was intended to provide “sober second thought” on the legislation adopted by the popular representatives in the House of Commons: John A. Macdonald, Province of Canada, Legislative Assembly, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, 3rd Sess., 8th Prov. Parl. (the “1865 Debates”), February 6, 1865, at p. 35. However, it played the additional role of providing a distinct form of representation for the regions that had joined Confederation and ceded a significant portion of their legislative powers to the new federal Parliament: Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, at paras. 164-66, per LeBel J. While representation in the House of Commons was proportional to the population of the new Canadian provinces, each region was provided equal representation in the Senate irrespective of population. This was intended to assure the regions that their voices would continue to be heard in the legislative process even though they might become minorities within the overall population of Canada: George Brown, 1865 Debates, February 8, 1865, at p. 88; D. Pinard, “The Canadian Senate: An Upper House Criticized Yet Condemned to Survive Unchanged?”, in J. Luther, P. Passaglia and R. Tarchi, eds., A World of Second Chambers: Handbook for Constitutional Studies on Bicameralism (2006), 459, at p. 462.
[16] Over time, the Senate also came to represent various groups that were under-represented in the House of Commons. It served as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process: B. Pelletier, “Réponses suggérées aux questions soulevées par le renvoi à la Cour suprême du Canada concernant la réforme du Sénat” (2013), 43 R.G.D. 445 (« Réponses suggérées »), at pp. 485-86.
[17] Although the product of consensus, the Senate rapidly attracted criticism and reform proposals. Some felt that it failed to provide “sober second thought” and reflected the same partisan spirit as the House of Commons. Others criticized it for failing to provide meaningful representation of the interests of the provinces as originally intended, and contended that it lacked democratic legitimacy.
[18] In the years immediately preceding patriation of the Constitution, proposals for reform focused mainly on three aspects: (i) modifying the distribution of seats in the Senate;[1] (ii) circumscribing the powers of the Senate;[2] and (iii) changing the way in which Senators are selected for appointment.[3] These proposals assumed the continued existence of an upper chamber, but sought to improve its contribution to the legislative process.
[19] In 1978, the federal government tabled a bill to comprehensively reform the Senate by readjusting the distribution of seats between the regions; removing the Senate’s absolute veto over most legislation and replacing it with an ability to delay the adoption of legislation; and giving the House of Commons and the provincial legislatures the power to select Senators: Constitutional Amendment Act, 1978 (Bill C-60), June 20, 1978, cls. 62 to 70. The bill was not adopted and, in 1980, this Court concluded that Parliament did not have the power under the Constitution as it then stood to unilaterally modify the fundamental features of the Senate or to abolish it: Reference re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54 (“Upper House Reference”).
[20] Despite ongoing criticism and failed attempts at reform, the Senate has remained largely unchanged since its creation. The question before us now is not whether the Senate should be reformed or what reforms would be preferable, but rather how the specific changes set out in the Reference can be accomplished under the Constitution. This brings us to the issue of constitutional amendment in Canada.
IV. The Part V Amending Procedures
[21] The statute that created the Senate — the Constitution Act, 1867 — forms part of the Constitution of Canada and can only be amended in accordance with the Constitution’s procedures for amendment: s. 52(2) and (3) , Constitution Act, 1982 . Consequently, we must determine whether the changes contemplated in the Reference amend the Constitution and, if so, which amendment procedures are applicable.
[22] Before answering these questions, we discuss constitutional amendment in Canada generally. We examine in turn the nature and content of the Constitution of Canada, the concept of constitutional amendment, and the Constitution’s procedures for amendment.
A. The Constitution of Canada
[23] The Constitution of Canada is “a comprehensive set of rules and principles” that provides “an exhaustive legal framework for our system of government”: Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (“Secession Reference”), at para. 32. It defines the powers of the constituent elements of Canada’s system of government — the executive, the legislatures, and the courts — as well as the division of powers between the federal and provincial governments: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (“Provincial Court Judges Reference”), at para. 108. And it governs the state’s relationship with the individual. Governmental power cannot lawfully be exercised, unless it conforms to the Constitution: s. 52(1) , Constitution Act, 1982 ; Secession Reference, at paras. 70-78; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 (“Supreme Court Act Reference”), at para. 89.
[24] The Constitution of Canada is defined in s. 52(2) of the Constitution Act, 1982 as follows:
52. . . .
(2) The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).
The documents listed in the Schedule to the Constitution Act, 1982 as forming part of the Constitution include the Constitution Act, 1867 . Section 52 does not provide an exhaustive definition of the content of the Constitution of Canada: Supreme Court Act Reference, at paras. 97-100; Secession Reference, at para. 32.
[25] The Constitution implements a structure of government and must be understood by reference to “the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning”: Secession Reference, at para. 32; see generally H. Cyr, “L’absurdité du critère scriptural pour qualifier la constitution” (2012), 6 J.P.P.L. 293. The rules of constitutional interpretation require that constitutional documents be interpreted in