The Façade and the Edifice

This is my much-delayed post on the Supreme Court’s opinion, issued last Friday, in Reference re Senate Reform2014 SCC 32. Although the Court’s conclusions, all of which I had correctly predicted the day before, were not really a surprise, its reasoning was somewhat unexpected. It is also rather vague and difficult to understand. This may have been the price to pay for a unanimous decision, an attempt to paper over some underlying disagreements between the judges about the best approach to take. But the Court’s reasoning might also signal a new departure, a shift in Canadian constitutional law and theory. 

As everybody knows by now, the Supreme Court held that the introduction of term limits for Senators and of “consultative” elections to the Senate require the consent of seven provinces with more than half of Canada’s population, while the abolition of the Senate requires the unanimous consent of all the provinces. The requirement that Senators own a property worth at least 4000$ can be abolished by Parliament acting alone, except with respect to Québec, which has to consent to the modification of the special rule pursuant to which its Senators must own property within specific districts in the province.

After throat-clearing describing the Senate’s roles as a legislative chamber of “sober second thought,” and one in which both the regions of Canada and minorities, not well represented in the House of Commons, could have a voice, the substantive part of the Court’s opinion begins with a discussion of the nature of the Canadian constitution and constitutional amendment. And this is where it gets interesting.

The constitution, says the Supreme Court, includes not only texts (both those referred to in subs. 52(2) of the Constitution Act, 1982 and others), but also an “architecture,” which has to do with the way in which its components interact and complement each other. This architecture might be similar or related to the underlying constitutional principles which the Court identified in Reference re Secession of Québec, [1998] 2 SCR 217, in that like the principles, it informs constitutional interpretation. But it is a more multi-faceted concept than that of underlying principles. The “architecture” consists of “the assumptions that underlie the text and the manner in which the constitutional provisions are inteded to interact with one another” (par. 26). And, crucially, since the constitution does not only consist of text but also of its “architecture,” “amendments to the Constitution are not confined to textual changes. They include changes to the Constitution’s architecture” (par. 27).

Another, seemingly separate, consideration in understanding and applying the rules regarding constitutional amendment codified in the Constitution Act, 1982, is “the principle that constitutional change that engages provincial interests requires both the consent of Parliament and a significant degree of provincial consent” (par. 29). The

amending formula [is] designed to foster dialogue between the federal government and the provinces on matters of constitutional change, and to protect Canada’s constitutional status quo until such time as reforms are agreed upon (par. 31).

Therefore, the “7/50” amending formula (requiring the consent of two thirds of the provinces with at least half of Canada’s population), which balances flexibility and the need for consensus, is the default option. Other amending formulae are exceptions. The Court provides a few remarks on those. It observes that s. 43 of the Constitution Act, 1982, requiring federal and provincial consent, is applicable to “special arrangements” for one or several provinces, which must assent to any change to such arrangements (par. 44). The Court also notes that the unilateral amendment procedures in ss. 44 and 45 are applicable only to those changes to, respectively, the federal and the provincial constitutions which “do not engage the interests of the other level of government” (par. 48). The Court adds that

[n]either level of government acting alone can alter the fundamental nature and role of the institutions provided for in the Constitution. This said, those institutions can be maintained and even changed to some extent under ss. 44 and 45, provided that their fundamental nature and role remain intact (par. 48).

The opinion then moves on to the specific questions asked in the reference. The first set of questions concerned “consultative” elections to the Senate, the results of which the Prime Minister would be obliged to “consider”, while theoretically retaining the discretion not to recommend their winners for appointment to the Senate. The federal government argued that such elections were permissible, since their introduction did not alter the constitutional text. But that argument, says the Court, “privileges form over substance” (par. 52):

 While the provisions regarding the appointment of Senators would remain textually untouched, the Senate’s fundamental nature and role as a complementary legislative body of sober second thought would be significantly altered.

This would “amend the constitution … by fundamentally altering its architecture” (par. 54). That architecture includes the Senate’s relative independence from partisan politics, and also its role as “complementary” rather than a competitor to the elected House of Commons. Elections “would give it the democratic legitimacy to systematically block the House of Commons, contrary to its constitutional design” (par. 60). Although the Court does not explicitly mention the constitutional convention which obliges the Senate to yield to the Commons’ will, the reference is unmistakable.

Remarkably, it is only after this discussion of “architecture” that the Court turns to the constitutional text, which it says “support[s]” its conclusions, and whose “words … are guides to identifying the aspects of our system of government that form part of the protected content of the Constitution” (par. 64). The “plain meaning” (par. 67) of these words ― specifically, the term “method of selecting Senators” in par. 42(1)(b) of the Constitution Act, 1982 ― covers “consultative” elections, because they describe not only the formal mechanism whereby Senators are appointed by the Governor General, but also the “selection” of the persons thus appointed.

The second question the Court had to consider envisioned the introduction of term limits of varying length for Senators. Here, it begins with text, observing that s. 42 does not refer to term limits, but also asserting that “7/50”, not unilateral amendment, is the default procedure even for changes to the Senate not mentioned in s. 42:

Changes that engage the interests of the provinces in the Senate as an institution forming an integral part of the federal system can only be achieved under the general amending procedure (par. 75).

The Court takes the view that the imposition of term limits would fundamentally change the Senate, by limiting the Senators’ independence and thus undermining their capacity for “sober second thought.” Although a very long fixed term would conceivably be equivalent to the current system of appointment until the age of 75 in this respect, it is impossible for a court to decide what length would be sufficient; “this is at heart a matter of policy.” And thus

[t]he very process of subjectively identifying a term long enough to leave intact the Senate’s independence engages the interests of the provinces and requires their input” (par. 82).

Property qualifications, by contrast, do not engage provincial interests. Their removal would not interfere with the Senate’s role or the Senators’ independence, and can (except with respect to Québec, as explained above), be achieved unilaterally.

The final question of the reference concerned the outright abolition of the Senate. Here again, “architecture” becomes arguably the dominant factor in the analysis. Although the Court also finds that the abolition of the Senate would amend the amending formula itself, requiring unanimous provincial consent, this is not the first consideration it mentions. What comes first is the assertion that

abolition of the Senate would fundamentally alter our constitutional architecture — by removing the bicameral form of government that gives shape to the Constitution Act, 1867 (par. 97).

The Court also observes that the abolition of the Senate was not contemplated in 1982, so that it cannot be construed as a mere reduction ― to nothing ― of its “powers” and membership, as the federal government argued.

I will try to have some more specific comments on the Court’s opinion, but here are three quick ones. First, as I noted in earlier posts on this case, the Supreme Court has consistently resisted attempts at unilateral constitutional reform, whether by the federal government (starting 35 years ago in Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, then in the Patriation Reference, and now again), or by a province (in the Secession Reference). Whatever else it thinks of the constitution, the Court clearly believes it is one that requires consensus. Second, beyond that, it is still not really clear what the constitution is. In particular, it is not clear just what the “constitutional architecture” the Court relies on is. However, as I suggest above, it seems to include (at least some) constitutional conventions. Yet the Court simply did not address the serious (although in my view not insuperable) theoretical and practical difficulties with incorporating conventions into constitutional law. Third, and most broadly, the court seems to have given a remarkably bold answer to the question I asked in my analysis of the oral argument ― what to make of the constitution? ― or, more precisely, of the constitutional text. The text, its opinion suggests, is no more than a façade. We can look at it, of course, and it can give us useful hints of what lies behind it. But the real architecture of the constitutional edifice is hidden from our view. And if there is a door through which one can pass to observe it, it is only the Supreme Court that has the key.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

5 thoughts on “The Façade and the Edifice”

  1. I would love to see the notion of “constitutional architecture” delved into more. So are you saying that the Supreme Court has now asserted another class of constitutional edifice, and that because of the vagueness of the ruling, anyone other than the court can never really know with certainty the precise dimensions and makeup of this “constitutional architecture”?

    If I’m reading that right, I’m not sure what to make of it. To be sure, the Westminster constitution and its descendants are pretty darned muddy, and I doubt anyone has or ever could come up with a comprehensive and all-encompassing list of aspects of the constitution, still, one could look at the edifice, whether in the UK, or a federation like Australia and Canada and have some sense of its size and extent, now we are suddenly plunged into a constitutional situation where the Supreme Court becomes not just the gatekeeper, but puts the curtain up so we can’t know the precise form of what is behind the gates.

    All in all, I agree with decision. The Court has once again underlined the fundamental principle of a federal form of government, and it was never going to give license to any part of Confederation to wantonly override the other. But golly, this seems to be fodder for a whole new generation of constitutional theorists trying to pierce the veil.

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