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Supreme Court of Canada clarifies legal framework for changes to Senate.

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In Reference Concerning Reform of the Senate, the Governor in Council referred the following questions to 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 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 theConstitution 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 theConstitution 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 theConstitution 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 theConstitution 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 theConstitution Act, 1982 apply?

The S.C.C. held (unanimously): 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 Court" wrote as follows (at paras. 3-4, 111):

“ … 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.

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.



The majority of the changes to the Senate which are contemplated in the Reference can only be achieved through amendments to the Constitution, with substantial federal-provincial consensus. 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), Constitution Act, 1982). A full repeal of the property qualifications requires the consent of the legislative assembly of Quebec (s. 43, Constitution Act, 1982). As for Senate abolition, it requires the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces (s. 41(e), Constitution Act, 1982)."

Note: This summary is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.


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