Challenging Succession, Round 2

Yesterday, in Teskey v. Canada (Attorney General), 2014 ONCA 612, the Court of Appeal for Ontario rejected a Charter challenge to the Succession to the Throne Act, 2013, a law that purports to “assent[] to” the changes to the rules of royal succession laid out in a British bill (and agreed to by the heads of government of the Commonwealth). This decision upholds the one issued by the Superior Court of Justice last year, about which I wrote here. In my view, like that decision, that of the Court of Appeal may well reach the correct outcome, although its reasoning is deeply flawed. And to the extent that it is correct, it only strengthens a different challenge to the Succession to the Throne Act.

The appellant, who represented himself (as he had done at first instance), argued that the continued exclusion of Catholics from the line of succession, which the Succession to Throne Act does nothing to address, infringes the equality rights guaranteed by the Charter. But, like the Superior Court, the Court of Appeal concludes that the case

does not raise justiciable issues and that Mr. Teskey lack[s] standing to bring the application. The rules of succession are a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter, and Mr. Teskey does not have any personal interest in the issue raised (other than being a member of the Roman Catholic faith) and does not meet the test for public interest standing.

I agree with the Court on the matter of standing. Even under the relaxed public interest standing test, a claimant’s capacity to develop his argument in a manner that will be helpful to the court is a relevant consideration, and it’s not clear that Mr. Teskey had such a capacity; nor is it clear, as the Court says, what his interest in the issue is.

However, there are several problems with the Court’s reasoning. One is that, assuming that the Succession to the Throne Act is not subject to the Charter because succession rules “are incorporated into [the Constitution] and therefore cannot be trumped” by it, this is not a matter of “justiciability.” As I explain in my post on the decision at first instance,

[j]usticiability is a slippery concept, but it has to do with a court’s ability to answer the sort of question at issue in a case. The question here is the constitutionality of an Act of Parliament ― something the courts deal with all the time. Even if the Charter does not apply to that Act of Parliament, that does not mean that its constitutionality could not be called into question in a judicial proceeding, albeit on a different basis.

An issue that does go to justiciability, at least in a broad sense, is whether the Court can address a constitutional challenge to a statute which has not even been proclaimed into force. I’m not aware of any such case, and I have serious doubts about a court’s power to entertain such a challenge ― but here, the Court of Appeal does not even raise this question.

And then, there is the matter of the grounds for the Court’s assertion that the rules of succession are a part of the Constitution. The Court doesn’t explain why this is so ― yet these rules are certainly not an explicit part of any enactment which s. 52 of the Constitution Act, 1982 lists as being part of the Constitution.

The Court’s assertion is, however, probably correct because, I wrote last year, the “office of the Queen” entrenched by par. 41(a) of the Constitution Act, 1982, “arguably includes the rules on who can come to hold that office from time to time, at least in a case where, like with the monarchy, these rules are, arguably again, its defining characteristic.” Since then, the Supreme Court has held, in L’affaire Nadon, that the “composition” of the Supreme Court (entrenched by a different paragraph of s. 41) includes the eligibility criteria for judges, a conclusion which I think suggests (although probably does not require) that the phrase “the office of the Queen” should also be interpreted to include eligibility criteria.

But if the rules of succession to the throne are indeed “a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter,” it follows that, a fortiori, they cannot be amended by an ordinary act of parliament, such as the Succession to the Throne Act. If they are part of the constitution, they must be changed by a constitutional amendment. If I am right that they are part of the constitution by virtue of par. 41(a) of the Constitution Act, 1982, this amendment requires the unanimous consent of the provinces. I take it that Mr. Teskey did not make this argument, and that the Court could therefore not consider it, but it is at the heart of a challenge launched by a group of constitutional law professors in Québec. Like the Superior Court before it, the Court of Appeal has given that challenge additional ammunition. When it is finally heard ― not before next summer, apparently ― it will become clear that, just like with its Senate reform project, and the appointment of Justice Nadon, the federal government chose to take a shortcut to avoid formal constitutional amendment ― and has ended up violating the constitution.

Strange Property

Last week, a Conservative Member of Parliament proposed a constitutional amendment that would protect (some) property rights in Alberta. The amendment would add a section to the Canadian Charter of Rights and Freedoms, providing that

In Alberta, everyone has the right not to be deprived, by any Act of the Legislative Assembly, or by any action taken under authority of an Act of the Legislative Assembly, of the title, use, or enjoyment of real property, or of any right attached to real property, or of any improvement made to or upon real property, unless made whole by means of full, just and timely financial compensation.

In the last Parliament, identically worded amendments were proposed for Ontario and British Columbia. Emmett Macfarlane has blogged about Mr. Hillyer’s proposal, explaining the uncertainty about the amending formula that would have to be used to add this provision to the Charter and suggesting that

 it would seem undesirable to have a patchwork of different rights in different provinces across the country. The Charter project itself was intended as a national unity project. If we started adding different, province-specific rights, what might that do to our conceptions of Canadian citizenship?

However, as prof. Macfarlane points out, s. 16.1 of the Charter is a province-specific provision, applicable only in New Brunswick; so is subs. 16(2), while pursuant to s. 59 of the Constitution Act, 1982, par. 23(1)(a) of the Charter does not (yet?) apply in Québec. The Constitution Act, 1867 also has some asymmetrical rights-protecting provisions (notably paragraphs 93(1)-93(4) and section 133). Differences between provinces, which we might call horizontal asymmetries, are already a feature of the rights landscape in Canada (quite apart from provincial rights-protecting legislation, such as Québec’s Charter of Human Rights and Freedoms) ― which is not to say that it is a good idea to add to them.

Mr. Hillyer’s proposed amendment would create an asymmetry of another (and, if anything, more unusual) sort too, a vertical one, between the rights protected against the federal Parliament and a provincial legislature. The Charter generally protects rights equally against Parliament and provincial legislatures. The only exception again concerns language rights, which are only protected against Parliament (and the province of New Brunswick). I’m not sure there is any strong normative principle that would go against vertically asymmetrical rights protection, but thought the matter worth highlighting.

Mostly though, I want to raise some questions about the substance of the proposed amendment. You might think that, having lamented the absence of constitutional protections for property rights and economic liberty in Canada (most recently last week, here and here), I would be happy about an attempt to include property rights in the Charter. But I’m not happy about the way Mr. Hillyer’s proposal (and its predecessors) would do it.

The proposed amendment is very narrow: it would only protect real property from expropriation without compensation. In other words, while landowners would be assured of an indemnity for any interference with their property, those whose fortune, great or small, consists in property of other kinds (whether it is money in the bank, shares, or intellectual property rights) could be expropriated without compensation of any sort. This sort of protection for property rights would tend to benefit the well-off, while doing nothing at all for those to poor to own land, such as the offenders made to pay an arbitrary “victim surcharge” on top of other punishment imposed on them. Indeed, the proposed amendment would not even protect all the owners of real property equally. It does not limit the reasons for which property can be taken by the government, provided that compensation is paid. It allows, for instance, expropriations intended to transfer land to private developers, which ― at least in the United States ― tend to fall much more heavily on the poor than the well-off.

Property rights, and economic rights more generally, became the poor relation of Canadian constitutional law (and to a lesser extent even of the American constitutional law) in large part because of the perception that they were being or would be used to protect the rich and to prevent the state from helping the poor. I have been arguing that this perception is mistaken, and that we could help the marginalized members of society resist the encroachments of a state that typically serves the interests of the middle and upper classes by protecting their economic rights. Mr. Hillyer’s proposed property rights amendment would not do that. On the contrary, it would confirm the fears of those who resist the protection of economic rights, and thus set back the cause of inclusion and economic liberty for all.

A further important point here is that constitutional change ― whether it is Senate reform or the addition of a new right to the Charter ― deserves to be broadly debated, so that its implications can be worked out and understood. The 7/50 amending formula, for all its flaws, more or less guarantees that amendment will not happen without debate. Attempts at constitutional change through the path of least resistance, whether unilateral Senate reform or a province-by-province modification of the Charter risks being poorly thought through (quite apart from its other defects from the standpoints of constitutional law and/or political morality) because it is insufficiently debated. It is not a good idea.

H/T: Benjamin Oliphant

Don’t Rebuild It

I wrote yesterday about the uncertain constitutionality of the federal government’s outsourcing of the choice of potential nominees for the Supreme Court to the government of Québec (or any other province). The government’s reliance on such a process is, according to the Globe’s Sean Fine, who broke the story yesterday, not intended to create a precedent. But of course the provincial government would like it to become one. And today, André Pratte has an op-ed in the Globe arguing to that it should. Remarkably enough, Mr. Pratte seems to have no qualms about the extra-constitutional introduction of a fundamental change to the process of Supreme Court appointments. He writes that

[c]onstitutional deals reached in Victoria (1971), Meech Lake (1987) and Charlottetown (1992) all contained provisions to give the provinces a substantial role in the selection of Supreme Court justices. That part of those federal-provincial agreements was not controversial; it just made sense. A constitutional agreement is not needed to achieve better balance. All that’s required is that the federal government decide that the process currently being followed in the aftermath of the Nadon imbroglio will be the rule from now on. (Paragraph break removed)

As I explained in my last post, this may or may not be so. But even if Mr. Pratte is right that a constitutional amendment is not necessary to make the new appointments process permanent, I believe that he is wrong to advocate for it. In his view,

Ottawa’s absolute discretion in choosing members of the Supreme Court has long been considered a flaw in Canada’s federal system. Peter Hogg, the country’s foremost expert on constitutional law, summarizes the argument in this way:

The court serves as the ‘umpire of federalism’ and it is inappropriate that the judges should be selected by only one of the contending levels of government.

Mr. Pratte adds that if the new process becomes permanent,

the damage done to the Supreme Court by [the Prime Minister’s] recent words and deeds will be repaired. Better still, the legitimacy and credibility of the court will be heightened, especially in Quebec.

This argument does not follow. To the extent that the Prime Minister has succeeded at damaging the Supreme Court (and it is not at all clear to me that he has), the words and deeds by which he did so ― the failed nomination of Justice Nadon and the government’s subsequent criticism of Chief Justice McLachlin ― had nothing at all to do with the “flaw in Canada’s federal system” which the new appointments process will supposedly rectify. Had the government appointed a judge of the Québec Court of Appeal instead of Justice Nadon, the alleged damage would not have happened, despite the appointment being “flawed,” in Mr. Pratte’s sense.

Yet how much of a flaw is it really that the federal government appoints judges unilaterally? In practice, the Supreme Court’s recent blockbuster decisions ― the one concerning the eligibility of Justice Nadon and that in the Senate Reform Reference ―, as well as Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, which declared a proposed federal securities regulator unconstitutional belie any claim that the Supreme Court is biased in favour of the federal government.

And even at the level of theory, there is a good argument to be made for unilateral federal appointments. Canadian history has borne out James Madison’s famous argument in Federalist No. 10 that small polities are more vulnerable to “faction” and the tyranny of the majority than larger ones. Our federal governments have tended to be more moderate than provincial ones, and less susceptible to takeovers by ideological entrepreneurs from outside the Canadian mainstream, whether the Social Credit of Alberta or the separatists of Québec. Foreseeing this, the framers of the Constitution Act, 1867 gave the power of appointing judges of provincial superior courts to the federal rather than the provincial governments. It stands to reason that the judges of the Supreme Court, whose decisions have effect not only in one province, but throughout Canada, should a fortiori be appointed by the government more likely to be moderate and representative of the diversity of the views of the country ― that is to say, by the federal government.

Québec’s case is illustrative. The federal government presumably is comfortable with, or at least not very worried about, outsourcing the selection of potential Supreme Court judges to a relatively friendly, federalist government. Would it have felt the same way if the Parti Québécois ― not only separatist, but also committed to the infamous “Charter of Québec Values” (which the federal government had vowed to fight in court!) had won the recent provincial election? And how would Mr. Pratte ― who, to his great credit, was among the leaders of the fight against that shameful “Charter” ― have felt about its proponents picking the names of the judges who would have had the last word on its constitutionality?

The power to appoint Supreme Court judges belongs to the federal government, and it alone, for good reason. Taking up the Court’s architectural metaphor, the constitutional edifice built in 1867 (and 1875, when the Court was created, and then 1982 when it was, so it says, constitutionally entrenched) has weathered some great storms, and given us all shelter and comfort. It is in no danger of crumbling. Do not try to rebuild it.

Conventional Thinking

There is big news on the Supreme Court appointment front today, which is arguably not getting enough attention. According to the Globe’s Sean Fine, “[t]he Conservative government has turned to Quebec to create a candidate list for the Supreme Court of Canada” ― asking the provincial government to submit names of potential replacements for Justice Fish (who retired last fall) and Justice Nadon (whose appointment the Supreme Court invalidated in March). The federal government is promising to choose the new judge from the provincial list. Relying on a federal government “source”, Mr. Fine writes that

the new process is not meant to be a precedent … It applies to the current vacancy, but will probably not be used to select a replacement for Justice Louis LeBel of Quebec when his retirement takes effect at the end of November. It would be wrong to see the same process being used for the two judges, the federal source said.

Except that Québec’s Justice Minister does not see it that way. In her view, “the collaboration undertaken with [her] federal counterpart will allow us to chart the course for things to come.”

What we are witnessing, at least for this appointment, but perhaps for the future too, if the Québec government has its way (and perhaps those of other provinces, which would not want to miss out on such an expansion of their powers), is nothing less than the implementation of the appointment process that would have been constitutionalized (in a proposed section 101C of the Constitution Act, 1867) by the (failed!) Meech Lake Accord. In the mid-1980s it was thought that this sort of change required a constitutional amendment, debated over years of public agony; in the mid-2010s, it can apparently be done by some phone calls, about which we learn weeks after the fact and might not care. But what about those big huge Supreme Court decisions this spring, in the Nadon case and in Reference re Senate Reform, 2014 SCC 32? didn’t those have something to say about changing the constitution, in particular as it concerns the Supreme Court? Well, they did. But the events might be exposing the limits of the Court’s pronouncements, and indeed of its power, faster than anyone probably expected.

In the the Nadon decision, the Supreme Court’s majority was of the opinion that

[u]nder s. 41(d) [of the Constitution Act, 1982], the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the “composition of the Supreme Court”. The notion of “composition” refers to ss. 4(1), 5 and 6 of the Supreme Court Act, which codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982 (par. 91).

It further found that all other “essential features of the Court” (par. 94) were entrenched under par. 42(1)(d) of the Constitution Act, 1982, thus being subject to amendment under the “7/50” formula. Interestingly, the majority’s opinion omits the Supreme Court Act‘s reference to the appointment process ― subs. 4(2), which provides that “[t]e judges shall be appointed by the Governor in Council by letters patent under the Great Seal” from the list of provisions entrenched by s. 41. Nor is it entirely clear whether it is entrenched by par. 42(1)(d). The majority’s opinion states that “the essential features of the Court” which are so entrenched are to be

understood in light of the role that it had come to play in the Canadian constitutional structure by the time of patriation. These essential features include, at the very least, the Court’s jurisdiction as the final general court of appeal for Canada, including in matters of constitutional interpretation, and its independence.

The appointment mechanism is conspicuously absent from this meagre list, but then the list is not exhaustive. It seems at least logical to suppose that it is, in fact, an “essential feature” of the Court. And, to reiterate, in the years following patriation, the political actors presumably thought that it was entrenched and required constitutional amendment to be changed.

Now, subs. 4(2) of the Supreme Court Act only mentions appointment by the Governor in Council. It doesn’t say anything about any procedure that must, may, or may not be followed prior to that appointment. Sounds familiar? It should. That’s also the situation with respect to appointments to the Senate under s. 24 of the Constitution Act, 1867, which provides that “The Governor General shall from Time to Time … summon qualified Persons to the Senate.” In the Senate Reform Reference, the government argued that this silence about what preceded appointments allowed it to organize “consultative” elections the winners of which the government would have to “consider” recommending to the Governor General for appointment. The Supreme Court rejected this claim, first and foremost on the basis that “consultative” elections “would fundamentally alter the architecture of the constitution” (par. 53).

Unfortunately, the Court does not define this notion of constitutional “architecture” well at all, beyond saying that it has something to do with “[t]he assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another” (par. 26). The Senate’s place in the constitutional “architecture” is that of a chamber of “sober second thought,” devoid of democratic legitimacy and the ability to challenge the House of Commons that elections would confer on it. But what about the Supreme Court?

In my view, there is a strong argument to be made that it was always an “assumption[] underlying the text” both of s. 101 of the Constitution Act, 1867, which authorized Parliament to create the Supreme Court in the first place, and then of the amending formula of the Constitution Act, 1982, that the federal government would be in control of the appointments to the Supreme Court, and that provincial governments would not be part of it. Again, it is based on this assumption that the inclusion of the provinces in the process was stipulated in the Meech Lake Accord for constitutional amendment and not just implemented on an informal basis.

So is the involvement of a provincial government in the appointment of a Supreme Court judge unconstitutional in the same way as “consultative elections” to the Senate? Perhaps not. In a paper dealing with the federal government’s Senate reform plans (published before the Supreme Court heard, much less decided the Senate Reform Reference), Fabien Gélinas and I have argued that there is a distinction to be made between a law setting up “consultative elections” and an informal process of genuine consultation prior to the appointment of a Senator:

the Prime Minister is free to consult before advising the Governor General to summon a person to the Senate. However …  when that consultative process is made the subject of legislation, that legislation—unlike a mere practice—must pass constitutional muster. The distinction between practice and legislation is … what allows constitutional conventions to grow even when the conventional rule is at odds with a clear rule of constitutional law. The legal limits on the constitutional changes that Parliament can achieve by legislating are more stringent than the political limits that constrain the actual action of the Prime Minister. This is only logical, because a law, once enacted by the Parliament of today, needs no further confirmation by those of the future to remain in force, whereas the practice of a single Prime Minister will not acquire the binding character of a convention unless his or her successors come to view it as “the constitutional position” and feel bound by it themselves (p. 122; reference omitted).

The involvement of the Québec government in the forthcoming Supreme Court appointment is informal; even if the process is repeated when Justice Lebel is replaced, it will still be a mere practice, not the subject of legislation. The Québec government will have to hope that the current Prime Minister’s successors will feel bound to replicate the practice for it to crystallize into a firm constitutional convention.

Yet the notion of a “constitutional architecture” challenges the orthodox distinction between law and convention on which we relied (without quite believing ― certainly on my part ― in the distinction’s validity). It may be that some of the current constitutional conventions are part of the entrenched “architecture.” It may also be that the “architecture” prevents the development of new conventions that would undermine it. I don’t think that anyone ― including the members, current or future, of the Supreme Court ― know whether it does. And it is doubtful whether we will find out. If both the federal and the provincial government are on board, no one will begin a reference that would force the Supreme Court to clarify its position. Could another Rocco Galati challenge the appointment that will come out of the current process? Perhaps, but I wouldn’t count on it happening. One thing that seems reasonably certain, however, is that although conventional thinking may no longer hold as a result of this spring’s decisions by the Supreme Court, thinking about constitutional conventions, which the Court avoided, will still be necessary.

UPDATE: I explain why, regardless of its constitutionality, making permanent this change in the appointments process is a bad idea in this post.

Constitutional Amendment and the Law

I have been a bit harsh on the Supreme Court in my first post on its opinion in the Reference re Senate Reform, 2014 SCC 32, saying that it had reduced the constitutional text to the status of a façade, which hid as much as it revealed of the real constitutional architecture, which only the Court itself could see. But one must recognize that the Court’s position was very difficult.  The amending formulae codified in Part V of the Constitution Act, 1982, are a nightmare, at once too precise and too vague to guide their interpretation. Although in our legal system text, especially constitutional text, is supposed to be the legal form par excellence, superior to any unwritten norm, Part V shows that this is not always so.

It is often said that, before Part V was added to the constitution in 1982, there was no general amending formula in the Canadian constitution. That is only true if “constitution” is understood as “constitutional text.” In reality, there was an amending formula ― the Canadian constitution could be amended by the Imperial (i.e. British) Parliament, which in accordance with a “constitutional position” (i.e. convention) recognized by the Preamble of the Statute of Westminster, 1931, would only act on address of the Canadian Parliament, which, in accordance with a further convention of which the Supreme Court recognized the existence in the Patriation Reference, could only make such an address with “substantial provincial consent.”

This last convention, requiring substantial provincial consent to constitutional changes, was obviously somewhat vague. And indeed it often said that vagueness is an inherent limitation of constitutional conventions, and perhaps one of the reasons which prevent conventions from attaining legal status. More generally, in his great work on The Concept of Law, H.L.A. Hart argued that the passage from somewhat uncertain traditional rules to formal ones was part of a movement from a pre-legal to a legal system. The replacement of the convention requiring “substantial provincial consent” with specific, written amending formulae forming part of the constitutional text ought to have clarified the constitutional rules, and made them more law-like.

Instead, what we got is a system which is in many ways no clearer than the old conventional rule. Indeed, Part V illustrates Lon Fuller’s insight that an ostensibly legal rule or system of rules can fail certain formal requirements (of what he called the “inner morality of law” and what we usually refer to as the Rule of Law) to the point where they fail to guide behaviour and, thus, to be law at all.

The system of a general rule (s. 38 of the Constitution Act, 1982), examples of the general rule (s. 42), and exceptions to the general rule (ss. 41, 43, 44, and 45, some of which (ss. 44 and 45) themselves sound like plausible general rules) does not make for consistency, which is one of the Rule of Law requirements outlined by Fuller. (I note, however, that this system is somehow very Canadian, in that it parallels that which we have adopted for dividing powers between Parliament and the provinces: there, the “peace, order and good government” clause of s. 91 of the Constitution Act, 1867 is the general rule, followed by examples of federal powers in s. 91, and exceptions in s. 92, at least one of which, subs. 92(13) was itself very broad. Not coincidentally, this complex scheme arguably contributed to the distribution of powers being interpreted in a way that is probably far from what its authors had intended.) The mention of the Supreme Court in the amending formula ― combined with the conspicuous absence of the Supreme Court Act from the list of enactments composing the “constitution of Canada” is another glaring example of the inconsistency of Part V.

What is more, its rules are not exemplars of clarity (does, for instance, the “selection of Senators” refer only to their formal selection by the Governor General, as the federal government argued, or to the whole process leading to it?) Some of these rules also seem to produce results so absurd as to border on the impossible (for instance, as one of the judges suggested at the hearing of the Senate Reference, the amending formula seems to indicate that Canada could be turned into a dictatorship more easily than into a democratic republic).

Add this all up, and we have a set of amending formulae that, as Fuller predicted, fail to guide behaviour ― not only that of the politicians to whom they are addressed in the first instance, but also of the courts to which the politicians turn for help understanding them. We have, in other words, a set of rules which, although purportedly legal, indeed purportedly part of the “higher law,” in some circumstances fail to be law at all. (One should not exaggerate the scope of the problem. In many cases ― say, transforming Canada into a republic ― the import of Part V will be perfectly clear. But the Senate Reference as well as l’Affaire Nadon show the importance of cases where this is not so.)

Yet if one thing is unmistakable after the entrenchment of Part V, it is that the “procedure for amending the constitution of Canada” is a legal, and no longer a conventional matter. The courts are stuck with it, and cannot offload the problem of interpreting it to politicians. (In reality, the Supreme Court’s engagement with the conventions of constitutional amendment in the Patriation Reference and the subsequent Quebec Veto Reference illustrate the limits of its willingness, or ability, to do so even under the old, conventional regime.) And so the Supreme Court really had no choice but to try somehow to bring the less-than-fully-legal mess of Part V into the realm of legality. Inevitably, it had to do some violence to the text. It would not be fair to fault it for having done so. However, the difficulty of the Court’s position should not shield it from criticism of the way it went about its task, or absolve it from the responsibility for the problems which its endeavour will create. In particular, the concept of “constitutional architecture” which it used deserves critical attention. I hope to provide it shortly.

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.

It’s a Dangerous Thing…

… To make predictions, especially about the future; so Winston Churchill. But the attraction of doing so is irresistible, so here goes: my forecast for the outcome of the Senate Reference, which the Supreme Court will release tomorrow. (If you need a refresher on the Reference and the issues it raises, as well as another set of predictions, have a look at Emmett Macpharlane’s excellent “Guide to the Senate Reform Debate”; you can also read my collected posts on the topic here.)

On the question of term limits, my guess is that the Court will find that none of the limits suggested by the federal government are constitutional. Although, as prof. Macfarlane suggests, the “compromise” view defended by Ontario and Saskatchewan, according to which long term limits would not be problematic, I doubt that it can be worked into a rule that is at once clear enough and principled enough for the Court to endorse it. The federal government itself stubbornly refused to offer the Court much in the way of a principle limiting its power to impose term limits, and the provinces supporting the compromise solution have done little better. Although the constitutional text does not offer direct support for the proposition that the Senators’ term is, in fact, entrenched, the Court will hold that essential characteristics of the Senate cannot be unilaterally amended by Parliament.

I also expect the Court to reject “consultative” elections to the Senate, partly for the same reason, but also because, in one way or another (hopefully, in the way Fabien Gélinas and I suggest!), the discretionary appointment of Senators by the Prime Minister is part of the entrenched “method of selecting Senators.” The Supreme Court will not countenance the federal government’s attempt to achieve unilaterally and indirectly what the framers of the Constitution Act, 1982, quite clearly thought required a constitutional amendment with provincial participation.

However, the Court will hold that the property qualification for appointment to the Senate can be unilaterally abolished by Parliament, because such an amendment does not interest the provinces (by their own admission), and because, however important in 1867, the property qualification, eroded by inflation to a fairly nominal amount, is no longer an essential characteristic of the Upper House.

Finally, regarding the abolition of the Senate, the Supreme Court will find that unanimous provincial consent is required. Although, unlike prof. Macfarlane, I am not convinced that the contrary conclusion (that the Senate can be abolished under the general, “7/50”, amending formula), would require the Court “to divorce its reasoning completely from the constitutional text,” ― which, after all, does not list the abolition of the Senate among the matters requiring unanimity ― the judges seemed to find the prospect of such a fundamental amendment done with anything less than unanimous support quite unsettling. Although the Senate might, as prof. Macfarlane suggests, be protected from abolition by its role in the process of constitutional amendment itself, which cannot be changed without unanimous consent, the Court might even base its ruling on the broader ground that  any fundamental alterations to the nature of the Canadian constitution require the consent of all the provinces.

Well, we’ll see. I hope I don’t look like too much of an idiot tomorrow.

UPDATE: I forgot to mention that I will be at conference ― on Senate Reform ― at Université Laval’s Faculty of Law tomorrow. If you happen to be there, come say hi. In any case, I don’t think that I’ll have time for a blog post tomorrow. Except perhaps a public acknowledgement of idiocy, if necessary. I’ll do my best to have something more substantial on Saturday.