–Michael Pal, University of Toronto
While the Canadian constitutional model has proven to be an influential one, the unelected federal Senate is the dirty little secret at its heart. Last week by way of the reference procedure the federal government sought the Supreme Court’s guidance on the constitutionality of various options for Senate reform. This is the latest iteration of the long-running quest to ensure the Senate fulfills its original purposes of providing regional representation and “sober second thought”.
True to its roots in the Prairie-populist Reform movement of the 1990s that was highly critical of the upper house, the Conservative government has long been committed to Senate reform. The government’s most recent bill would introduce a 9-year term limit on Senators and procedures for the Prime Minister to appoint Senators who have won elections in each province.
Senate reform matters because the unelected Senate has nearly co-equal powers with the House of Commons, though it cannot introduce money bills and the government of the day does not require the confidence of the upper house. Senate seats are allocated by a historical formula that has long aggrieved Western Canada and achieves neither the equality of sub-national units on the American model nor representation by population. The Senate’s lack of democratic legitimacy means it rarely exercises its full powers.
The overarching questions for the Supreme Court to answer are what Senate reforms can Parliament implement unilaterally and what changes require provincial consent under Canada’s procedures for constitutional amendment?
Parliament may exclusively amend the constitution “in relation to the executive government of Canada or the Senate and House of Commons” (s. 44 of the Constitution Act, 1982). Section 42 (1) (b) and (c) requires the consent of Parliament and 7 provinces constituting 50% of the country’s population (the 7/50 formula) for changes to:
1) the powers of the Senate;
2) the method of selecting Senators;
3) the distribution of Senate seats and,
4) residence qualifications.
If Parliament is barred from imposing term limits and elections pursuant to its exclusive jurisdiction in s. 44, then the anachronism that is the unelected Senate will endure. The 7/50 formula poses a nearly insurmountable hurdle given opposing interests among the provinces.
What is the Court likely to conclude? Implementing term limits would seem to be within Parliament’s exclusive authority, as it is not listed in s. 42. The reference asks specifically about terms of 8, 9 or 10 years, as well as one lasting the length of two Parliaments. In the abstract, it is possible that the term of each Senator could be so abbreviated as to affect the “powers of the Senate”. But it is hard to see how the term limits contemplated in the reference could trigger the 7/50 formula.
The procedure for the Prime Minister to select Senators who have won provincial elections is on shakier ground and will be the most difficult issue facing the Court. Provincial consent is needed to alter the “method of selecting” Senators.
The Prime Minister’s expansive discretion to appoint Senators, through the formal procedure of advising the Governor-General, is fettered only by residence and property qualifications. The nomination of candidates elected in a province can be seen as the use of this existing discretion. The Prime Minister has already appointed victors of Senate elections in Alberta. This interpretation would suggest that no provincial consent is needed because the method of selecting Senators has not been altered. Bill C-7 states that the Prime Minister “must consider” election winners (s. 3). He is not obliged to appoint them.
A case exists, however, that elections would be a drastic change in the “method of selecting” Senators and therefore 7/50 applies. Discretion over the appointments would be so limited as to be non-existent. The Prime Minister would not in practice be able to appoint anyone other than the victorious candidate. The appointment power would still formally lie with the Governor General on the advice of the Prime Minister and cabinet, but provincial voters would decide.
Complicating matters is the status of Supreme Court’s 1980 Upper House Reference. The Court opined that amending the “fundamental features” or “essential characteristics” of the Senate would require provincial consent. This decision was based on the constitution as it existed prior to the introduction of the amending formulas in the Constitution Act 1982.
The 1980 Reference was likely superseded by the 1982 amendments. If still operative, however, it would limit Parliament’s powers under s. 44 by requiring provincial consent beyond the instances specifically listed in the amending formula. Senate appointment through elections would seem to run afoul of the reasoning in the 1980 case because they impose fundamental or essential changes. The Court will have to decide if its earlier decision is still binding.
The reference also includes a question regarding the ability of Parliament to exclusively amend the constitution to eliminate the property qualification. Currently, Senators must possess property in excess of $4000. As residence qualifications were included in s. 42 in the list of items to which the 7/50 formula applies, but property qualifications were not, this would appear a clear textual signal that Parliament can take this action on its own.
The final question posed by the government is whether the 7/50 formula or unanimity pursuant to s. 41 is required for abolishing the Senate. Section 41 contemplates the Senate only indirectly. Section 41 (b) requires unanimous consent to alter the guarantee that no province may have fewer seats in the House of Common than it has Senators. One could contend that s. 41 contains a complete list of amendments for which unanimity is required and Senate abolition is not one of them. One could also argue that the drafters of s. 41 presumed the Senate would exist, due to its mention in s. 41 (b) and elsewhere in the constitution, thereby implying unanimous consent should be obtained. The Court’s opinion on this point will likely be academic. Even the lowest standard, the 7/50 formula, cannot realistically be met.
Some clarity on these questions will be welcome. But these piecemeal reforms are not necessarily desirable even if constitutionally doable. Elected Senators will have a greater desire to flex their muscles on policy commensurate with their enhanced democratic legitimacy. Yet the government has not proposed any method of reconciling conflicts between the House and a newly active Senate. Further, without altering the distribution of seats, Alberta and British Columbia will continue to have less influence than they should. Abolition might be preferable to many in the West than an unrepresentative but more assertive Senate.
The failure of attempts at comprehensive constitutional reform in the Meech Lake (1987) and Charlottetown Accords (1992) have taught a generation of federal politicians to avoid constitutional negotiation with the provinces. The Senate reference demonstrates the limits of seeking incremental reform rather than comprehensive constitutional negotiations. It raises the lurking question of how to respond to legitimate grievances about federal institutions when the constitution requires a degree of agreement that is predictably elusive. This is Canada’s constitutional dilemma post-Charlottetown.
Suggested Citation: Michael Pal, Reforming Canada’s Senate, Int’l J. Const. L. Blog, February 17, 2013, available at: http://www.iconnectblog.com/2013/02/reforming-canadas-senate.
 David S. Law and Mila Versteeg. “The Declining Influence of the United States Constitution” New York University Law Review 87.3 (2012): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1923556; Sujit Choudhry, “Does the World Need More Canada? The politics of the Canadian Model in Constitutional Politics and Political Theory” (2007) 5 ICON http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1005666.
 Supreme Court Act, RSC 1985, c S-26, s. 53: http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-s-26/latest/rsc-1985-c-s-26.html#sec53subsec1 .
http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5101177&File=30; for a detailed summary of the bill and analysis of its implications beyond the scope of this post see Sebastian Spano, “Legislative Summary of Bill C-7”, Library of Parliament: http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?source=library_prb&ls=C7&Parl=41&Ses=1&Language=E&Mode=1#a32.
 See the differing opinions of legal scholars on an earlier version of the bill here: http://www.parl.gc.ca/Content/SEN/Committee/391/refo/04eva-e.htm?Language=E&Parl=39&Ses=1&comm_id=599.
 Constitution Act, 1867, s. 24: http://laws-lois.justice.gc.ca/eng/Const//page-2.html#docCont.
 Constitution Act, 1867, s. 23: http://laws-lois.justice.gc.ca/eng/Const//page-2.html#docCont.
 Authority of Parliament in relation to the Upper House (Re), 1 SCR 54: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/5637/index.do.
 Spano summarizes this debate and the views of various experts: http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?source=library_prb&ls=C7&Parl=41&Ses=1&Language=E&Mode=1#a32.