Executive summary?
Since 2006, the federal government has been trying to reform the Senate. It has
chosen the wrong path. Imposing term limits and electing senators would require
provincial consent, which will not materialize. Even if the federal government
could secure agreement on those two changes, it would make subsequent reform
impossible and render the federal Parliament dysfunctional. Smaller provinces
would not consent to giving up seats in a new empowered Senate and there would
be no mechanism for breaking deadlocks between the House of Commons and the
Senate. Instead, if one is interested in coherent, practical reforms to the Senate, the
federal and provincial governments should first consider a constitutional amendment
to limit the considerable powers of the Senate. This would be far less controversial and
would provide a real test on whether there is appetite for Senate reform. If provincial
consent could be secured on this change, it would then be possible to deal with the
other issues (elections, terms and number of seats per province). All of these issues
become far less contentious once the Senate’s powers are reduced and it is clear that
the preeminent house of Parliament is the House of Commons.
Acknowledgements?
The author would like to thank Sunil Johal, Michael Pal and Noah Zon for the
helpful comments on an earlier draft of this paper. The author would also like to
thank Leslie Seidle, whose contribution, insights and historical knowledge proved
invaluable throughout the process.
A Viable Path to Senate Reform?
by Matthew Mendelsohn
April 2013
www.mowatcentre.ca
©2013 ISBN 978-1-927350-46-1
a viable path to senate reform? | April 2013 | 1
A Viable Path to
Senate Reform?
by Matthew Mendelsohn
There is a near consensus on two facts about Senate reform: that the Senate is
in need of fundamental reform, and that such reform is exceedingly difficult to
achieve. Many have been searching for some middle ground between doing nothing
and undertaking a major overhaul of the body, which would require constitutional
amendments. The federal government has argued that its approach achieves this
middle ground, claiming that its proposals to introduce a form of Senate elections
and term limits do not require the consent of the provinces.
In fact, the federal government’s approach would certainly make our democratic
institutions worse, not better. It would lead to a dysfunctional federal parliament, a
skewing of political power away from Ontario and Western Canada, and make real
democratic reform to the Senate even more difficult to achieve. It would certainly
alter the fundamental character of the Senate and Parliament.
While the current federal approach does not represent an improvement over the
status quo, neither is the status quo viable indefinitely. At some point, we must look
at what to do about the anachronism that is the Senate. Undertaking that process in
a serious way will require constitutional change and provincial consent.
This Mowat Note sketches out how such a process might occur in a credible,
coherent manner – and in a way that could lead to healthier, better functioning
federal democratic institutions. The federal approach has been backward,
beginning with the issues of mode of selection (elections) and length of term in
office. Dealing with those issues first makes coherent reform impossible. Instead,
those issues should only be addressed following other changes.
The first step toward fundamental Senate reform should be to seek agreement
on a constitutional amendment to reduce the Senate’s now considerable
legislative authority. If this amendment could be secured with provincial consent,
success could pave the way to obtaining the necessary provincial consent for
other important changes – including the outdated method of selection, term of
appointment and distribution of Senate seats among the provinces – all of which
become far less contentious once the Senate’s powers have been limited and it is
clear that the House of Commons is the pre-eminent chamber of Parliament.
2 | MOWAT CENTRE
Background on the Federal Government’s
Current Approach
Since 2006, the federal government has, on successive occasions, introduced
legislation intended to reduce senators’ terms and – more controversially – to
introduce an elective process prior to their appointment. The bills have been
drafted as federal legislation, not as constitutional amendments to be subsequently
adopted by provincial legislatures.1 A number of legal scholars and provincial political
leaders have criticized the attempt to introduce an elective process for senators as, in
effect, a change to the method of selection which, under the constitutional amending
formula, requires the approval of seven provinces representing at least 50 percent of
the total provincial population (the “7/50 formula”).2 Although the federal government
has repeatedly claimed that the proposed changes can be passed by Parliament
acting on its own, most reject this claim. This disagreement has produced a legal
challenge from the Quebec government3 and opposition from some other provincial
governments, including Ontario.
The federal government initially sponsored two bills: Bill S-4, on Senate tenure,
was introduced in the Senate on May 30, 2006; Bill C-43, the Senate Appointments
Consultation Act, was introduced in the House of Commons on December 13,
“Although the federal government
has repeatedly claimed that the
proposed changes can be passed by
Parliament acting on its own, most
reject this claim”
2006. In the Senate, where the Liberal party still held a
majority, a special committee held extensive hearings
on the subject matter of Bill S-4. The witnesses included
Prime Minister Harper, the first Canadian prime
minister to appear before a Senate committee. He
referred to the bill as “a modest reform” and added: “As
yet another step in fulfilling our commitment to make
the Senate more effective and more democratic, the government...will introduce a
bill in the House to create a process to choose elected senators.”4
Although some other witnesses raised concerns about the government’s claim
that senators’ terms could be reduced to eight years by Parliament acting alone, the
weight of expert opinion during the Senate committee’s hearings leaned the other
way. In its report, the committee stated that “[o]ur discussions with constitutional
scholars and legal experts have yielded, for most members of the Committee,
convincing arguments that the government has chosen the correct approach to
making this change.”5 There was nevertheless considerable discussion about
the proposed eight-year term. The bill did not specify whether a senator could be
a viable path to senate reform? | April 2013 | 3
appointed for more than one term. Some witnesses and senators suggested that the
possibility of renewal could lead some senators to carry out their duties in a less
independent manner than if their term were not renewable.
The central purpose of Bill C-43 was to establish a legal framework for consulting
the electorate of a province or territory on potential Senate appointments.
According to the sponsoring minister, this would generally take place at the
same time as elections for the House of Commons. In an innovative move, it was
stipulated that electors would rank Senate candidates using the single transferable
vote (STV), a semi-proportional electoral system used for elections to the Australian
Senate. Bill C-43 did not receive second reading during the parliamentary session
in which it was introduced. In the following session, the proposed legislation was
reintroduced as Bill C-20; it was studied by a legislative committee but the latter did
not report before Parliament was dissolved in September 2008. In April 2010, the
Senatorial Selection Act was introduced in the Senate. It made no progress prior to
the March 2011 dissolution of Parliament.6
The latest legislation, Bill C-7,7 stipulates that, once the legislation comes into force,
senators will be appointed for a single nine-year term (the possibility of renewal, left
open in Bill S-4, is thus removed). The move from an eight- to a nine-year term was
in part a response to the concern that, with eight-year terms, a prime minister who
served two full four-year terms could have appointed every single senator.8 On the
election of nominees, Bill C-7 is quite different from the initial bill. The elections
would be held at the same time as a provincial or territorial general election, or a
municipal election; they would be conducted by provincial or territorial election
officials (not Elections Canada, as was the case in Bill C-43). As for the electoral
system, STV has been replaced by simple plurality: voters would be entitled to vote
for as many candidates as there are nominees to be elected; if only one nominee
is to be elected, the candidate with the largest number of votes is elected; if more
than one nominee were to be chosen, the required number of candidates would be
elected starting with the person with the most votes, followed by the one with the
next-highest number of votes, and so on.9
Reactions to the Federal Approach
Since the first legislation was introduced more than six years ago, the various bills
have met with significant opposition on Parliament Hill. Many Liberal senators
and MPs have been unrelenting critics, highlighting the incoherent federal
approach, but offering no real alternative to the status quo, except improvements
4 | MOWAT CENTRE
to the appointment process. New Democratic Party MPs have repeated the party’s
official mantra that the Senate should be abolished. This is useful political and
communication positioning that allows the NDP to avoid support for the status quo
without endorsing an elected Senate. But it is not a credible substantive position,
given the constitutional difficulties in abolishing the Senate.
Even some Conservative senators are reportedly opposed to the more modest
aspect of the proposed legislation, namely the reduction in senators’ terms.10
Conservative Senator Hugh Segal has called for a referendum on the abolition
of the Senate, hoping for any path toward a reformed, legitimate Senate. But the
federal government likely understands its chosen path is not viable. Although
the government has had a majority in the House of Commons since the May
2011 general election, Bill C-7 has not even received second reading (required
before committee study can begin).11 It was debated on seven occasions between
September 11, 2011 and February 27, 2012, but has not been called for debate since.
A number of the country’s leading legal scholars and political scientists have
challenged the federal government’s claim that these potentially significant
changes can be effected through federal legislation. For example, Ronald Watts,
an internationally recognized scholar of comparative federalism, has written:
“The effort to avoid [the amendment procedure requiring substantial provincial
government consent] by reforming the Senate on the sly through the devious use
of ordinary legislation constitutes an anti-constitutional process.”12 John Whyte, a
leading constitutional scholar and former senior provincial official, has suggested
that even making changes on matters not explicitly reserved for 7/50 consent may
be unconstitutional. He draws on the Supreme Court’s 1979 response to the federal
government reference submitted following provincial government opposition to
Bill C-60 which proposed Senate reform as part of a constitutional reform package.13
Commenting on Bill S-4, Whyte has suggested that an eight-year term could alter
the fundamental character of the Senate – something the Supreme Court stated in
1979 was not within the power of Parliament.14
Gordon Gibson, one of the most longstanding advocates of Senate reform (he was
part of a pioneering Canada West Foundation task force that advocated Senate
election as long ago as 1981), believes the enterprise is misguided politically. In
his view, “merely making [the Senate] elected would be a disaster.” He explains:
“Election would confer democratic legitimacy. And then the Atlantic provinces
would turn the Senate into a one-way conveyor belt of money from the richer parts
of Canada. Plus, a ‘democratic’ Senate would feel empowered to block the House,
a viable path to senate reform? | April 2013 | 5
yielding blackmail and/or deadlock.”15 All of these points are perfectly valid and
no one has offered any refutation of Gibson’s indictment, reprieved publicly by
Stéphane Dion as well.16
Critique of the Federal Approach
Looking broadly at the federal government’s approach, it is sometimes challenging
to present a fully coherent critique because the reforms themselves are not
coherent. First, the government does not seem to have decided whether its
initiatives represent significant change or not. On the one hand, it claims its legislation
would permit the prime minister to do what he is already empowered to do – to consult
prior to recommending to the governor general that X or Y person be appointed to
the Senate. In addition, the legislation would permit provincial governments to hold
elections to select nominees to fill Senate vacancies, something they are already
entitled to do. In fact, Alberta passed such legislation as long ago as 1989 and,starting
the same year,has held several “Senate elections.”17 So,in one way,the legislation changes
nothing: it authorizes provinces to do what they are already allowed to do and permits the
prime minister to do what he is already permitted to do.
However, on the other hand, the government has presented its legislation as a “means
to enable the Senate to better reflect the democratic values of Canadians and respond
to the needs of Canada’s regions,”18 and as the first step in fundamental Senate reform.
This incoherence may in fact be part of the government’s strategy, making it difficult
to articulate an overall critique because it is not clear what one should analyze: the
legislation itself or what the government has said it would do following its adoption.
In fact, if the legislation ever became law, it would bring about a de facto change in
the way senators are appointed. Although the prime minister would in theory retain
some discretion in Senate
appointments – the elections are
supposedly consultative – going
against the result of a Senate
vote in a particular province
is not really a viable option. It
is hard to imagine that after
a costly election featuring
“In one way, the legislation changes
nothing: it authorizes provinces to
do what they are already allowed
to do and permits the Prime
Minister to do what he is already
permitted to do”
campaigning, fundraising, and televised debates, the prime minister would say “I
don’t like the outcome, so I’m not appointing the winner.” This would make a sham
of the Senate election and undermine the process indefinitely.
6 | MOWAT CENTRE
We must therefore conclude that the “consultations” are in fact elections and should
be considered as such. This is their intent. Indeed, Prime Minister Harper confirmed as
much in 2010 when he said, ``If a province holds a genuine, democratic election for the
Senate, I will appoint the winner of that election to the Senate of Canada.”19
“the ‘consultations’ are in
fact elections and should be
considered as such.
This is their intent. Indeed,
Prime Minister Harper
confirmed as much”
Transforming the Senate into an elected body, without other changes,
would be disastrous. The Senate in most respects has equal powers
to the House of Commons. The only reason it does not exercise its
considerable powers is that it has no legitimacy to do so because it is
an appointed body. Once some senators are elected, they would feel
emboldened to exercise their legitimate powers. This would almost
certainly produce deadlock at some point between the two chambers,
with no mechanism for resolving conflicts.
Real reform would become virtually impossible. The distribution of Senate seats
among the provinces is heavily skewed toward Atlantic Canada and away from
Ontario and Western Canada. For example, New Brunswick has 10 senators, while
British Columbia – with more than five times the population – has six seats. Under
the current convention, where the Senate plays a very secondary role in legislation,
the uneven and unprincipled distribution of seats is not much of a problem.
However, if the Senate were to become elected and hence democratically legitimate,
the distribution of seats would create an enormous power imbalance. Smaller
provinces would be very unlikely ever to give up their new-found power.
Some commentators informally suggest that the federal government knows the
legislation is unconstitutional and has only introduced it to appease certain parts of
its base. According to this analysis, if the legislation is struck down by the courts, the
government can throw up its hands, say it has tried, and then dispense with the issue
for the foreseeable future. It is certainly plausible that this is the strategic objective.
In the meantime, the government has decided to move forward at this juncture by
asking for a reading from the Supreme Court of Canada, which may provide some
clarity on whether the federal government’s initiative is in fact constitutional.
The Supreme Court reference
In its reference to the Supreme Court, the federal government has asked for
answers to an extensive series of questions.20 Some of the questions refer to the
relevant sections of Bill C-7 or one of the federal government’s previous Senate
a viable path to senate reform? | April 2013 | 7
bills. On term limits, the court has been asked whether the following potential
changes, among others, could be enacted by Parliament alone: a fixed term of nine
years, a fixed term of 10 or more years, a fixed term of eight years or less, a fixed
term of the life of two or three parliaments, and a renewable term for senators. On
what the reference refers to as “Senate appointment consultations,” the court is
asked whether it is constitutional for Parliament to enact legislation providing for:
1) a national process to consult the population “as to its preferences for potential
nominees for appointment to the Senate as was set out in Bill C-20,” and 2) “a
framework setting out the basis” for provincial and territorial legislation to consult
their populations on potential Senate nominees.
The reference goes beyond the matters covered by the federal government’s bills
of the past several years. First, the court has also been asked whether the property
qualification for senators (set at $4,000 at Confederation and unchanged since) may
be repealed by Parliament acting alone. Second, and more significant, the Court
has been referred a number of questions about potential abolition of the Senate. In
essence, the Supreme Court (unless it declines to answer the questions because of
lack of context)21 will need to stipulate whether abolition could be undertaken under
the 7/50 amending formula or
that the unanimous consent
of all provincial legislative
assemblies is needed, which the
reference raises as a possibility.
The federal government’s
stated purpose in seeking the
reference is “to accelerate the
pace of Senate reform and to
lay the foundation for further
reform of the Senate.” Even
“Under the current convention,
where the Senate plays a very
secondary role in legislation, the
uneven distribution of seats is not
much of a problem. However, if the
Senate were to become elected and
hence democratically legitimate, the
distribution of seats would create
an enormous power imbalance.”
though the government has asked that the reference be dealt with on a priority
basis,22 the Court’s response is unlikely to come before early 2014. In the meantime,
Bill C-7 will go nowhere. But this should not put an end to public discussion of which
issues regarding the Senate are the most pressing and how they could be addressed.
Indeed, this may be a good time to consider another approach to tackling the
interrelated elements of Senate reform.
8 | MOWAT CENTRE
An Alternative Process: Limiting the
Senate’s Powers
There are four central questions when it comes to fundamental Senate reform,
not just two: First, how will senators be selected (election or some other way)? And
second, how long will they serve? These are the two that have attracted federal
attention and they are relatively easy. Although people may have some good
natured disagreements, most democrats would agree that “appointment for life”
is not a good system and that, all else being equal, popular election is the most
legitimate method for choosing legislators. These two questions have dominated
recent debate.
But it is the third and fourth questions that are difficult: How many senators should
each province have? And what powers should the Senate have? The government
intends to leave these matters to some later process.
Fundamental Senate reform requires a constitutional amendment approved by
at least two-thirds of the provinces that represent 50 percent or more of the total
provincial population.23 The federal government has suggested that its approach
could help us get to that level of consent. The argument runs as follows: If the
terms are shortened and a significant number of senators are elected, senators
will be emboldened. They will claim the same legitimacy as members of the
House of Commons – perhaps more because they will have been elected by an
entire province. This eventuality, the argument continues, ought to lead provincial
governments to deal with the thorny questions of the
“This magic won’t come about, and
the Prime Minister’s ‘frank hope’ is
an insufficient foundation on which
to roll the dice on an incoherent
Senate reform strategy. “
number of senators per province and the powers of
the Senate.
The Prime Minister likely understands that a half
reformed Senate is much worse than the status quo –
both for the coherence of a functioning Parliament, but
also for democracy, given the under-representation
of many provinces, particularly Ontario, Alberta, and B.C. Indeed, in his Senate
committee appearance, Prime Minister Harper stated that “it is my frank hope that
[the process for electing Senate candidates] would force the provinces and others to,
at some point in the future, seriously address other questions of Senate reform.”24
a viable path to senate reform? | April 2013 | 9
This magic won’t come about, and the Prime Minister’s “frank hope” is an
insufficient foundation on which to roll the dice on an incoherent Senate reform
strategy. The interests of the provinces are too divergent on the key question
of how many senators each of them should have. Why should B.C. accept an
empowered, legitimate Senate when its population is so underrepresented in the
second chamber? And why would the Maritime provinces ever agree to give up
Senate seats in a newly empowered body? They wouldn’t, and so the path chosen
by the federal government is not a credible approach to achieving larger, legitimate,
coherent Senate reform. If one is truly interested in exploring whether fundamental
Senate reform can be achieved, there is an alternative approach. It requires
changing the order in which the four questions are addressed.
The federal government could first turn to the powers of the Senate. Almost
150 years after Canada’s founding, the Senate retains legislative powers coequal with those of the House of Commons, with the exception that money bills
cannot be introduced in the second chamber. This arrangement, a key part of the
Confederation compromise, was linked to the Senate’s intended role in protecting
sectional and minority interests.25 It also reflected the constitutional arrangement
in the United Kingdom at the time. Although the legislative authority of the House
of Lords was reduced to a suspensive veto in 1911 (which was shortened in 1949),
there was no move to amend the Senate’s powers in a similar way. Today, the only
thing that prevents the Senate from exercising its power is that it understands that it
does not have the democratic legitimacy to do so.
When Senate reform took its place on the Canadian public agenda in the 1970s,
most proposals recommended limits on the Senate’s powers, usually in the form of
a suspensive veto.26 In fact, a constitutional amendment to that effect came close to
being adopted in the mid-1980s.
In the 1984 general election, the Progressive Conservatives, led by Brian Mulroney,
won a majority in the House of Commons. In early 1985, a disagreement between
the government and the Senate (where the Liberals had a majority) emerged over a
$19 million borrowing bill. Liberal senators debated the bill for a number of weeks,
claiming the government had given insufficient information about how the money
would be spent. Perhaps fearing that such delays would become frequent, the
federal government drafted a constitutional amendment that would have given the
Senate a suspensive veto of 30 days over money bills and 45 days for all other bills.
Following a meeting of senior federal and provincial officials, the Prime Minister
10 | MOWAT CENTRE
received letters of support from the premiers of all provinces except Quebec
(Premier Lévesque indicated the Quebec government was unwilling to participate
in the amending process but was not opposed to the substance of the amendment)
and Manitoba (the NDP government preferred abolition). In Ontario, Frank Miller’s
Conservatives were reduced to a minority in the May 1985 election. 19 days later,
David Peterson (whose Liberals had signed an agreement with the NDP) became
Premier. He declined to support the amendment, so the measure died.
Governments again turned their attention to the Senate issue during the
negotiations that led to the 1992 Charlottetown constitutional accord. That
“Once the powers of the Senate were
limited, provinces would be much
less resistant to dealing with the
other questions.“
agreement provided for full-fledged Senate reform,
including election and an equal number of senators for
each province. On powers, the first ministers endorsed
the same suspensive veto (30 days) for money bills as in
the 1985 amendment. On other legislation, the accord
provided for two deadlock-breaking procedures. First,
if the Senate had not disposed of legislation adopted by the House of Commons
within 30 days of its being received, a joint sitting of the House and Senate could be
convened (at which the majority party in the House would in most cases prevail).
Second, a reconciliation committee with an equal number of members from each
house could be nominated to consider a bill and report it back to both houses with
or without amendments.
The 1985 amendment likely makes more sense today as a starting point than the
more complex 1992 process, which fit into a broader package of constitutional
reforms. Regardless, both approaches recognized that dealing with the Senate’s
virtual co-equal powers to the House of Commons was a necessary step to ensure a
functional parliament. Limiting the Senate’s powers is also a necessary first step to
get provinces to agree to other reforms.
If the topic of the Senate’s powers were raised in present circumstances, there
might be general agreement across the country to limit the Senate’s considerable
powers. Inter-regional rivalries would not likely get in the way of a measure that
would confirm the role of the House of Commons as the locus of responsible
government and the chamber that drives the national agenda. Moreover, public
opinion would almost certainly be on the side of those proposing such a reform.
Once the powers of the Senate were limited, Ontario and some other provinces –
including Alberta and B.C. that, despite some public positioning, have grave doubts
a viable path to senate reform? | April 2013 | 11
about the federal approach – would be much less resistant to dealing with the other
questions. Ontario would have less concern about elections that would enhance
the legitimacy of senators because the powers of the Senate would be significantly
curtailed. Ontario would also be more comfortable with a Senate with more equal
provincial representation because there would be less risk that a coalition of the
smaller provinces, now significantly over-represented in the Senate, could thwart
legislation adopted by the House of Commons. Quebec, which has long resisted
moves that would undermine the political influence of the provincial government,
might be inclined to go along because there would be less likelihood that the Senate
would become a significant counterweight to the role of provincial governments
within the federation. There is no reason to imagine that the western provinces
would object to limits on the Senate’s powers.
CONCLUSION
The current federal approach to Senate reform is neither serious nor coherent,
but we should sympathize with the federal government and appreciate their desire
to reform the Senate. This Mowat Note suggests another path: a simple, targeted
constitutional amendment to limit the Senate’s considerable powers.
The proposal has a number of strengths. First, it explicitly acknowledges that
fundamental, legitimate Senate reform cannot be achieved through half-measures
that run counter to the intent of the constitutional amending formula by shutting
out provincial governments and that do not take account of the implications for the
functioning of our parliamentary system.
Second, it proposes a sequential approach, one that has not been tried before and
one that does not accept that we cannot make constitutional changes to the Senate
except through an all-or-nothing exercise.27 It allows us to determine whether there
is really provincial consensus for reform by testing whether a relatively simple and
uncontroversial amendment to limit the Senate’s powers can be secured, following
which more contentious issues could be more easily tackled.
Third, this proposal invites an open and democratic debate that addresses first
principles such as the Senate’s role. Such debate would likely begin by recognizing
that the Senate’s role is not as a confidence chamber with the power to thwart
governments and legislation but as body to bring to light matters of concern to
particular regions or minorities, as well as a chamber of sober second thought to
improve upon legislation.
12 | MOWAT CENTRE
Such debate is vitally important if the reforms that might eventually come about are
to be generally acceptable to Canadians. A debate on modernizing our Parliament
would be most welcome, but it must be undertaken openly and honestly, something
which is absent in current Senate reform discussions.
a viable path to senate reform? | April 2013 | 13
Appendix
Federal Government’s Reference
Questions
The federal government has referred the following questions to the Supreme Court
for a constitutional opinion:28
Senate Term Limits
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:
1. a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the
Senate Reform Act;
2. a fixed term of ten years or more for Senators;
3. a fixed term of eight years or less for Senators;
4. a fixed term of the life of two or three Parliaments for Senators;
5. a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution
Act, 2006 (Senate tenure);
6. 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
7. retrospective limits to the terms for Senators appointed before October 14,
2008?
Senate Appointment Consultations: National Process
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?
Senate Appointment Consultations: Provincial Processes
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?
14 | MOWAT CENTRE
Property Qualifications
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?
Senate Abolition
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:
1. 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;
2. by amending or repealing some or all of the references to the Senate in the
Constitution of Canada; or
3. 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 in section 38 of the Constitution Act, 1982 is
not sufficient to abolish the Senate, does the unanimous consent provision set out in
section 41 of the Constitution Act, 1982 apply?
a viable path to senate reform? | April 2013 | 15
Endnotes
1
The federal government claims that the legislative changes it has introduced fall
under section 44 of the Constitution Act, 1982, which provides that “Parliament
may exclusively make laws amending the Constitution of Canada in relation to the
executive government of Canada or the Senate and House of Commons.”
2
Section 42, Constitution Act, 1982. Changes to the following also require the
same level of consent: the powers of the Senate, the number of members by
which a province is entitled to be represented in the Senate and the residence
qualifications of senators.
3
In 2012 the Quebec government launched a legal challenge with regard to the
constitutionality of the proposed federal legislation.
4
Proceedings of the Special Senate Committee on Senate Reform, September 7,
2006, 2:8.
5
Special Senate Committee on Senate Reform, Report on the subject-matter of Bill
S-4, An Act to amend the Constitution Act, 1867 (Senate tenure), October 2006, 28.
6
For a detailed review of the various bills introduced by the Harper government,
see Sebastian Spano, “Bill C-7: An Act respecting the selection of senators
and amending the Constitution Act, 1867 in respect of Senate term limits,”
(Library of Parliament, June 27, 2011); http://www.parl.gc.ca/Content/LOP/
LegislativeSummaries/41/1/c7-e.pdf (accessed February 28, 2013).
7
House of Commons, Bill C-7, An Act respecting the selection of senators and
amending the Constitution Act, 1867 in respect of Senate term limits (First Reading
June 21, 2011); at: http://www.parl.gc.ca/HousePublications/Publication.aspx?Langu
age=E&Mode=1&DocId=5101177 (accessed March 1, 2013).
8
It could still be possible that the entire Senate would have been appointed by
the same prime minister, but the likelihood of this is lower with nine-year terms.
The concern about eight-year terms was expressed most cogently by former
Liberal leader Stéphane Dion, “The Senate Reform Bill: A Constitutional Danger
for Canada.” Inroads Journal, 2012; https://stephanedion.liberal.ca/files/2013/02/
St%C3%A9phane-Dion-In-Roads-EN.pdf?cda6c1.
9
Bill C-7 provides that such elections may be held even if there is not currently a
vacancy for the province/territory. The person’s ‘election’ as a Senate nominee
remains valid for six years. For further details, see Spano, “Bill C-7...”
10
John Ibbitson and Jane Taber. “Friendly Fire Erupts as Tory Senators Balk at
Harper’s Term-limit Plan.” The Globe and Mail, September 10, 2012; http://m.
theglobeandmail.com/news/politics/ottawa-notebook/friendly-fire-erupts-as-torysenators-balk-at-harpers-term-limit-plan/article2062153/?service=mobile.
16 | MOWAT CENTRE
11
John Ibbitson, “Why Is Senate Reform Stalled? Ask the PM.” The Globe and Mail,
August 11, 2012; http://www.theglobeandmail.com/commentary/columnists/whyis-senate-reform-stalled-ask-the-pm/article4476208/.
See also, Hansard status of Bill: http://www.parl.gc.ca/LegisInfo/BillDetails.
aspx?billId=5093616.
12
Ronald L. Watts, “Bill C-20: Faulty Procedure and Inadequate Solution,” in Jennifer
Smith, ed., The Democratic Dilemma: Reforming the Canadian Senate (Montreal
and Kingston: McGill-Queen’s University Press, 2009), 60.
13
Reference re: Authority of Parliament in relation to the Upper House, [1980] 1
S.C.R. 54.
14
John D. Whyte, “Senate Reform: What Does the Constitution say?” in Smith, ed.,
The Democratic Dilemma, 103.
15
Gordon Gibson, “Never mind the Senate, Let’s repair the House instead,” The
Globe and Mail, February 25, 2013, A15. At present, the four Atlantic provinces have
30 of the 105 Senate seats.
16
See his speech in the House of Commons posted on his facebook page: http://
www.facebook.com/notes/st%C3%A9phane-dion/senate-reform-debate-30-septe
mber-2011/10150849275625716
17
Subsequent elections were held in 1998 and 2004. Stan Waters, who came first
in the 1989 vote, was appointed to the Senate in June 1990. Bert Brown, elected as
a ‘senator-in-waiting in 1998 and 2004, was appointed in 2007. British Columbia
adopted a Senatorial Selection Act in 1990. However, it had a sunset clause and
subsequently lapsed. The current B.C. government introduced similar legislation
in February 2013, but Attorney General Shirley Bond indicated that it was not
intended to pass the bill in the current session; “B.C. introduces bill to elect its
own Senate nominees,” Canadian Press, February 28, 2013. Saskatchewan adopted
legislation along similar lines in 2009. =
18
Federal government press release, “Canada’s New Government takes step in
Senate Reform.” http://www.lgs.gc.ca/eng/content/canadas-new-governmenttakes-step-senate-reform
19
“Harper renews call for Senate reform,” Canadian Press, August 10, 2010; http://
www.cbc.ca/news/canada/story/2010/08/09/harper-senate-reform.html.
20
For the full list of questions and the government’s justification for pursuing
the reference, see: “Fact Sheet – Reference to the Supreme Court of Canada on
Senate Reform”; at: http://www.democraticreform.gc.ca/eng/content/fact-sheetreference-supreme-court-canada-senate-reform (accessed February 21, 2013).
21
In the Upper House reference cited above, the Supreme Court declined to answer
a number of questions “in the absence of a factual background.”
a viable path to senate reform? | April 2013 | 17
22
Bill Curry, “Ottawa wants Supreme Court’s study of Senate reform fast-tracked,”
The Globe and Mail, February 20, 2013; http://www.theglobeandmail.com/news/
politics/ottawa-wants-supreme-courts-study-of-senate-reform-fast-tracked/
article8771220/.
23
In fact, if legislation on the amending procedure adopted by Parliament in 1996
(part of the federal government’s response to the 1995 Quebec referendum
on sovereignty) were respected, a higher threshold would be needed: Quebec,
Ontario, British Columbia, Alberta, one of Manitoba or Saskatchewan and two
Atlantic provinces would have to agree to the amendments; An act respecting
constitutional amendments, S,C. 1996 c. 1.
24
Proceedings of the Special Senate Committee on Senate Reform, September 7,
2006, 2:18.
25
David E. Smith, The Canadian Senate in Bicameral Perspective (Toronto:
University of Toronto Press, 2003), 36.
26
For a review of past Senate reform proposals, see Jack Stilborn, “Forty Years of Not
Reforming the Canadian Senate – Taking Stock,” in Serge Joyal (ed.), Protecting
Canadian Democracy: The Senate You Never Knew (Montreal and Kingston:
McGill-Queen’s University Press, 2003), 31-66.
27
For a call to look at Senate reform through a new lens, see F. Leslie Seidle,
“Expanding the Democratic Reform Agenda,” Policy Options, October 2004, 48-53.
28
“Fact Sheet – Reference to the Supreme Court of Canada on Senate Reform”; at:
http://www.democraticreform.gc.ca/eng/content/fact-sheet-reference-supremecourt-canada-senate-reform (accessed February 21, 2013).
About the Author
Matthew Mendelsohn is the Director of the Mowat Centre
and an associate professor in the School of Public Policy &
Governance at the University of Toronto. He has served as
a Deputy Minister in the Ontario Government and a senior
policy advisor in the Privy Council Office in the federal
government. He was a member of the Department of Political
Studies at Queen’s University from 1994-2004.
About the Mowat Centre
The Mowat Centre is an independent public policy research
centre located at the School of Public Policy & Governance at
the University of Toronto. The Mowat Centre is Ontario’s nonpartisan, evidence-based voice on public policy. It undertakes
collaborative applied policy research, proposes innovative
research-driven recommendations, and engages in public
dialogue on Canada’s most important national issues.
The Mowat Centre
720 Spadina Avenue, Suite 218 Toronto, ON M5S 2T9
Tel: 416.978.7858
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[email protected]
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