Apologies for the recent silence. There was no particularly good reason for it, either. Anyway, I’m back.
And there is a very good reason for that: the Québec Court of Appeal has released its opinion in response to a reference by the Québec government on the constitutionality of the Federal Government’s Senate reform plans, which involve the limitation of Senators’ terms to 9 years and, more importantly, the setting up of provincial elections the appointment of the winners of which a Prime Minister would be obliged to “consider” recommending to the Governor General. In Reference re Bill C-7 Concerning the Reform of the Senate, 2013 QCCA 1807 (the French opinion is here; English translation here), the Québec Court of Appeal holds that this project is unconstitutional if undertaken unilaterally by Parliament; it can only be implemented as a constitutional appointment pursuant to par. 42(1)(b) of the Constitution Act, 1982.
The Court starts off by explaining the importance of the Senate to the Fathers of Confederation. The constitution of Canada was meant to be, as the Preamble put it, “similar in principle to that of the United Kingdom,” and that meant, among other things, having an unelected Upper House of the legislature. The province of Canada had, in fact, experimented with an elected Upper House ― and Sir John A. Macdonald had not liked the experience. The appointed, undemocratic Senate was an essential part of the bargain struck in 1867. To this day, “it seems that the Senate and its members play a significant role in federal political life, and that the institution is not simply a mirror of the House of Commons” (par. 12). The Supreme Court has confirmed the Senate’s position as an entrenched, central part of the compromise that made Confederation possible, in Re: Authority of Parliament in relation to the Upper House, [1980] 1 SCR 54.
So much for the context. The relevant constitutional text consists of, on the one hand, par. 42(1)(b) and, on the other, s. 44 of the Constitution Act, 1982. The former provides that an amendment according to what is usually referred to as the 7/50 procedure, requiring the consent of 7 provinces representing between them at least half of the Canada’s population, is necessary to effect “[a]n amendment to the Constitution of Canada in relation to” any of a number of “matters,” among which are “the powers of the Senate and the method of selecting Senators.” As for s. 44, it provides that “[s]ubject to sections 41 and 42, 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.” Also relevant are s. 24 of the Constitution Act, 1867, which provides that Senators are “summon[ed]” by the Governor General, and par. 41(a) of the Constitution Act, 1982, which requires the unanimous consent of the provinces to amendments “in relation to … the office of the … Governor General.” Québec argued that the proposed Senate reform came within the terms of par. 42(1)(b) as affecting “the method of selecting Senators” and/or par. 41(a) as affecting the office of the Governor General. The Court accepted the former claim, and rejected the latter.
S. 42, it said, should not be interpreted restrictively, as an exception to a more general principle contained in s. 44. These provisions are of equal importance. Amendments relating with the “internal management” of the Senate fall under s. 44; those that have to do with the Senate’s “role[s] within the federal legislative structure, in particular those of ensuring provincial and regional representation and examining bills with sober second thought,” under s. 42 (par. 34).
Crucially, Parliament cannot get around the entrenchment of s. 42 by legislating so as to leave in place the formal provisions of the Constitution while changing the way it operates in practice. For one thing, this would contradict “the principle of supremacy of the Constitution” (par. 43). For another, it would subvert the compromise that made possible the Patriation of the 1981/82, which, so far as the Senate was concerned, had consisted in kicking the can down the road, and postponing any amendments ― to be effected at some later date pursuant to the new amending formula. Finally, s. 42 must be interpreted in light not only of the legal formalities, but also of the political realities of the constitution:
section 42 cannot be read as reflecting a consensus between the federal and provincial governments in 1982 to preserve the formalism but not the reality with respect to the matters set out therein, including the method of selecting senators. … [W]hat interest would the provinces have had when the Constitution Act, 1982 was adopted to protect a juridical reality that, even then, was inconsistent with political reality?
The political reality is that “the method of selecting Senators,” as it existed in 1982, included no electoral process. “The method of selecting Senators” refers not only to their final appointment by the Governor General, but to the entire process leading to that appointment. That process would be modified by the federal government’s reform project. Therefore that project requires a constitutional amendment.
That amendment need not be unanimously supported by the provinces, however, because it does not affect “the office of the Governor General”. While the Governor General is responsible for the final appointment of the Senators as a matter of law, “[i]n reality, the appointment of senators became the exclusive prerogative of the Prime Minister who was then in office whenever a vacancy occurred” (par. 55). The federal government’s reform project would have affected not the Governor General’s (purely formal) role in the process, but the Prime Minister’s. And “to assimilate an amendment of the powers of the Prime Minister with those of the Governor General for the purposes of paragraph 41(a) of the Constitution Act, 1982 would limit Parliament’s powers because of a constitutional convention. Such a limitation does not exist, or at a minimum, does not concern the courts” (par. 58). Conventions exist in a separate, non-justiciable realm. They can be modified by the behaviour of political actors; therefore, a fortiori, they can be modified by statute, without the need for a constitutional amendment.
If this all sounds familiar, it might be because you’ve read Fabien Gélinas’s and my paper on “Constitutional Conventions and Senate Reform,” in which we argued that the amending formula of the Constitution Act, 1982, must be understood in light of the constitutional conventions which determine the practical operation of the constitution. This means, on the one hand, that the “method of selecting Senators” means discretionary decision-making by the Prime Minister and no electoral process, and on the other, that “the office of the Governor General” does not in fact include the power to choose Senators. As a result, the federal government’s reform project comes within the scope of par. 42(1)(b), but not 41(a).
I am very happy with this opinion. I hope that the Supreme Court, which is set to hear the arguments on the federal government’s own Senate reform reference in a few weeks, comes to similar conclusions (and perhaps even spares a few words for us)!
Double Aspect 
I’m curious on what your position is on bicameralism. I’ve noted your paper seems somewhat critical of an upper house creating havoc with the lower house. Certainly that is what happened in 1975 in Australia, but in general, with the concentration of power in the office of the Prime Minister, the Senate represents at least some sort of check on a majority government’s legislative dominance.
I am concerned that the increasing shrillness of the abolition crowd is happening in a vacuum, without any consideration for how abolishing the upper house could accelerate the marginalization of the House of Commons.
I think the point that we make in the paper is simply that making the Senate more powerful by conferring on it a democratic legitimacy which it now lacks will change the operation of the principle of responsible government as we know it and as it has always existed in Canada (and in the UK, to whose constitution ours is “similar in principle”). Whether that is or is not a good idea is a separate question, which we do not address.
One could certainly argue that the risk of confrontation between the Senate and the House of Commons is worth taking to counter the power of the PM. One could also look at the United States and conclude that the risk is not just of confrontation but of paralysis, and that we should try to use other mechanisms to achieve this end. My personal hunch is probably on the latter side, but it is no more than a hunch for now.
I do not quite see, however, how abolishing the Senate would marginalize the House of Commons…
I agree that a “legitimized” Senate would destabilize the legislative settlement that has governed Canada since Confederation. I am not, in fact, an advocate of the Triple-E Senate precisely because I think it leads down a road that lead to crises like the now never-ending wars between the two houses of the US Congress, or in our case, something like the Australian Constitutional Crisis.
At the same time we, like the United States and Australia, are a federal state. It was at least partially the intent of the Fathers of Confederation, as a tip to concerns from the Maritimes over Ontario and Quebec’s dominance, to create an upper house that would act as a regional counterbalance to the House of Commons.
Obviously a lot has changed since 1867, but the underlying notion that the Provinces should have some sort of representation in Ottawa doesn’t seem principally unsound. In general, the Senate has moderated its own behavior, though one could argue that since the later Mulroney years it has become more proactive. Perhaps that is why we are where we are now, though my (admittedly slim) reading of the history of Senate reform suggests that there were those dissatisfied with the upper house and how it was constituted almost from the beginning of Confederation.
As to my reference about the marginalization of the House of Commons, well that has already happened. It has been a decades long project, but slowly the independence of backbenchers, then committees and finally now many members of Cabinet has been bled away, with the Prime Minister and Opposition leaders being, by and large, the beneficiaries. To get rid of the one substantial check on a Prime Minister’s legislative power without dealing with the marginalization of the House of Commons strikes me as putting the cart before the horse.
I don’t think the Senate is actually doing anything for regional representation, or ever has. I know what the Fathers of Confederation were trying to achieve, but I think they failed, miserably, much as the Framers of the US Constitution failed, miserably, with their scheme of presidential election. What we have instead is a convention (or something close to it) which mandates the representation of as many provinces as at all possible in the cabinet, even at the cost of drawing ministers from the Senate rather than the House of Commons. But for the Senate to really represent provincial or regional interests, it would probably have to actually represent provincial governments or legislatures, as the US Senate originally did and the German Bundesrat does.
As for the House of Comments, I agree, but doubt that the Senate, as it is, is a “substantial check on a Prime Minister’s power,” and it seems to me that there ought to be more effective ways of accomplishing that worthy goal. They would require reform which, in turn, would require a certain amount of self-abnegation by a PM, but then so would appointing independent-minded senators who could one day stand in his way.