—Richard Albert, Boston College Law School
Yesterday, the Supreme Court of Canada announced that it will issue its advisory opinion on Senate Reform next week on Friday, April 25.
The Court’s advisory opinion has been long awaited. The Court is expected to advise the Government of Canada on what is constitutionally required to reform and/or abolish the Senate. The Court will answer up to six questions referred by the Minister of Justice last February 2013. (I say “up to six” because the Court may decline to answer some questions, as it has done in the past.)
In this short post, I review the questions posed to the Court and provide a few internet links for readers in search of more resources.
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?
For readers interested in learning more about this subject, here is a short fact sheet prepared by the Minister of State for Democratic Reform, here is a helpful guide to the debate on Senate Reform, and here are some thoughts about how the Supreme Court could rule next week.
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