The Supreme Court of Canada will hear arguments about a complicated set of questions concerning Senate reform this week. The federal government has asked the Court whether Parliament is free to amend the Constitution to introduce changes like implementing term limits or consultative elections for the appointment of new senators, or whether the constitutional amending formula requires substantial provincial consent. The other major issue the Court will decide is whether abolishing the Senate entirely requires unanimous consent of the provinces.

This primer will explore the options and major points of contention facing the Court with respect to each of these issues.

First, it is important to understand what the Constitution has to say about changes relating to the Senate. Part V of the Constitution Act, 1982, outlines different amending formula. The “general” formula requires that major amendments be subject to approval via:

s. 38(a) resolutions of the Senate and the House of Commons; and

(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least 50 per cent of the population of all the provinces.

This is known as the “7/50” rule (seven provinces being two-thirds of the total).

Section. 42 outlines a number of specific issues requiring the use of the 7/50 rule. In relation to the Senate, these are:

s. 42 (b) the powers of the Senate and the method of selecting Senators;

(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;

Complicating matters, section 44 allows for Parliament exclusively to make laws “in relation to the executive government of Canada or the Senate and the House of Commons.”

The Court will have to determine what the above provisions mean for each of the questions posed to it in the reference. Let’s explore.

Term Limits

The questions before the 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 10 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?

Where the federal and provincial governments stand

The federal government argues that Parliament enjoys exclusive authority to impose term limits on senators. Ontario and Saskatchewan argue that Parliament can enact term limits provided they are not so short as to alter the ability of the Senate to perform its traditional role (Ontario draws this line at term limits of nine years or more, Saskatchewan at 10 years or more). All the other provinces contend that any reform to impose term limits requires amendment via the 7/50 rule.

Major issues

The central issue the Court will face here is whether imposing term limits counts as changing “the powers of the Senate and the method of selecting Senators” under s. 41(b).

Most of the provinces argue that term limits would allow a prime minister who holds office for two to three terms of average length to effectively replace the entire Senate during his or her time in office. This, they argue, would have a profound effect on the ability of the Senate to discharge its normal duties of “sober second thought.”

These provinces rely heavily on the Supreme Court’s 1980 ruling in a reference on the Senate, Re: Authority of Parliament in relation to the Upper House, where it held that “… it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process.” According to the provinces, the “fundamental features” or “essential characteristics” of the Senate means the same thing as the Senate’s “powers” listed under 42(b). The Quebec Court of Appeal, which rendered its own decision in a reference on this question last month, adopted the same view.

However, it is an open question how much the Court should rely on its previous decision, which focused on a now-defunct section of the Constitution that has since been replaced by Part V of the Constitution Act, 1982, detailed above.

Simply put, the domestic amending formula did not exist when the Court rendered its 1980 decision, and the plain meaning of the text of the 1982 document should take priority. The federal government will rely heavily on the nature and scope of section 44, which gives it exclusive authority to amend the Constitution in relation to the Senate except for those matters listed above.

It is not particularly clear that term limits would actually affect the “method” of selecting senators. Nor would they, in any direct way, alter the “powers” of the Senate, at least if we regard powers as referring to the scope of its institutional or constitutional authority. The principal response to this is that term limits, particularly short ones or those with renewable terms, would create an upper house that is beholden to the prime minister in ways that the current Senate is not.

Potential outcomes

We should expect that the Supreme Court will likely eschew a narrow, textual interpretation here. The justices will certainly pay attention to the likely effects these changes have. It would not be surprising to see the Court adopt a position that refers to its 1980 ruling and mandate provincial consent for term limits. If the 7/50 rule is required, it would seem very unlikely that provinces would be on board with the idea of introducing term limits (and certainly not in the absence of other changes, such as elections).

Nevertheless, the positions adopted by Ontario and Saskatchewan offer a potential compromise idea that the justices will need to address: if longer term limits are unlikely to have the detrimental effects many of the provinces worry about, then is it realistic to say they fall under the scope of the Senate’s powers or method of senatorial selection? Furthermore, the Court should be concerned about an outcome that completely guts section 44: if Parliament does not have exclusively authority to introduce term limits, then what can it do alone vis-a-vis constitutional changes to the Senate?

Consultative Elections

The questions before the Court

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?

Where the federal and provincial governments stand

The federal government argues that Parliament should be able to establish a consultative elections process—set up by the provinces or by itself—from which the prime minister may select senators (technically, from which the prime minister can refer names to the governor general, who formally appoints them). Alberta and Saskatchewan essentially agree (provided the provinces are not precluded from instituting the consultative election process themselves). By contrast, the remaining provinces argue that even “advisory” elections would, indirectly, bind the prime minister’s selection and thereby requires an amendment under the 7/50 rule.

Major issues

The Court will have to decide whether an advisory process that does not formally bind the prime minister’s discretion nevertheless constitutes a change to the “method of selecting Senators” under s. 42(b).

This would appear to be more of an uphill battle for the federal government than the term limits issue. The democratic legitimacy associated with an electoral process would unquestionably place political pressure on any prime minister to select those who win such elections. The Quebec Court of Appeal determined “that considerable if not determinative weight would be given to the electoral result … In practice, if the Prime Minister were not to give effect to the electoral result, it is obvious that the whole exercise would have been a sham, and provinces would lose interest in keeping it in place.”

The main question the Court will confront is whether any of that should necessarily matter in law. Indeed, given the complete lack of transparency in the existing appointment process, would it be constitutionally off-limits for the prime minister to change the method he uses behind the scenes? If, instead of the traditional patronage-style appointments, the prime minister installed an advisory council to recommend names, would that constitute a change to the “method of selecting senators”? For that matter, would a prime minister who decided he would only appoint members of the Order of Canada to the Senate be unconstitutionally surrendering his discretion to the whims of the advisory council for the Order?

The answers to those questions likely depend on whether future prime ministers would feel bound by convention to following such practice.

Potential outcomes

The Court is unlikely to accept the rationale put forward by the federal government if it arrives at a conclusion that the proposed consultative elections bind the executive in every way but name. Would such a finding cause the Harper government to abandon its efforts to reform the Senate in any substantial way? The fact that the government sought for seven years to institute changes through ordinary legislation suggests it is uninterested in the intergovernmental negotiations or “mega-constitutional politics” necessary to achieve reform under a 7/50 rule. If the Supreme Court rules that provincial consent is required, Stephen Harper will have to decide which takes precedence: his desire for Senate reform or his reluctance to engage in constitutional negotiations.

Property Qualifications

Question before the Court

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?

Where the federal and provincial governments stand

All of the provinces agree that Parliament enjoys the authority to repeal provisions pertaining to property qualifications for Senates (except for Quebec, which has a separate provision given the province’s senatorial districts, and Newfoundland and Labrador, which declined to offer an opinion).

Major issues

This one is straightforward, unless the Court decides for some bizarre reason that section 44 really is meaningless. The Court will have to explain what measures ought to be taken with respect to subsection 23(6), which specifically implicates Quebec. The answer may be that any change to property qualifications for Senators from Quebec will require Quebec’s agreement via the bilateral amending formula outlined in s. 43 of the Constitution Act, 1982.

Potential outcomes

This should be the most straightforward reform proposal and, barring any surprises, one the federal government can pursue following the Court’s decision.

Abolition

Questions before the Court

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 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?

Where the federal and provincial governments stand

The federal government, Saskatchewan and Alberta say the Senate can be abolished using the 7/50 rule. The other provinces argue that unanimity is required.

Major issues

The Court will need to address the obvious fact that getting rid of the Senate would mean changes to the text of Part V of the Constitution Act, 1982, and that unanimity is therefore required by s. 41(e), which requires unanimity for changes to Part V. The federal government, Saskatchewan and Alberta argue such changes are only “incidental” to the removal of the Senate. In a previous post for Maclean’s, I outlined why that argument is deeply problematic.

Potential outcomes

Unless the Court is prepared to divorce its reasoning completely from the constitutional text, it will declare, as the Quebec Court of Appeal did, that unanimity is required to abolish the Senate. This will likely take Senate abolition off the table, as the likelihood of all provinces agreeing to abolish is low.

There has been some discussion of a national referendum on the issue, but even that is a considerable hurdle, given that going directly to the people but asking only about abolition (rather than including questions about reform) is unlikely. If a referendum includes questions about reform and abolition, a clear consensus is unlikely to materialize.

Other things to watch out for

Due to the controversy over the appointment of Marc Nadon to the Supreme Court, and the pending reference case concerning his eligibility, the Court is short-handed. It will be interesting to see whether the Court will seats eight judges or seven (to avoid the possibility of a tie).

The Court will likely strive for a unanimous opinion in a case this significant. Given the number of questions and some of the issues, that may be a challenge but would not be surprising.

Once the hearing is completed, a decision could very well take anywhere from six to 18 months, if past reference cases are any indication.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role, was published this year by UBC Press.