Breaking the bargain: a comment on the constitutional validity of bill c-7, the proposed Senate Reform Act.

Author:Sarro, Douglas
 
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  1. INTRODUCTION II. SENATE REFORM IN CONTEXT i. The Structure of the Senate ii. Roles of the Senate a. The Representative Role b. The Legislative Role c. The Investigative Role d. The Partisan Role iii. Possible Models for Reform: The United States and Australia a. The United States Senate b. The Australian Senate iv. Senate Reform Initiatives and the 1979 Reference a. The House of the Federation Model b. The Elected Senate Model III. THE CONSTITUTIONALITY OF THE BILL C-7 REFORMS i. The Pith and Substance of the Bill C-7 Reforms a. Provision of term limits for Senators b. Elections of Senate Nominees (a). Relevant Reference Questions and Text of the Bill (b). Practical Effects ii. To what extent must the Constitution be amended before Bill C-7 may be enacted? a. Elections of Senate Nominees b. Delegation of authority over Senate nominee elections to the provinces iii. If the Constitution must be amended, which amending formula would apply? a. Election of Senate nominees and delegation of authority to the provinces b. Provision of term limits for Senators IV. SENATE REFORM, FEDERALISM, AND DEMOCRACY i. The Principle of Federalism ii. Democracy V. CONCLUSION I. INTRODUCTION

    In the Constitution Act, 1982 (the "1982 Act"), the federal government and the provinces made a bargain regarding Senate reform: while Parliament may generally make minor changes to the Senate unilaterally, certain enumerated changes, including changes to the method of selecting Senators, require provincial assent. (1) This bargain reflects the fact that Senate reform would affect both federal and provincial interests, given the Senate's dual role as a house of the federal Parliament and, at least ideally, as a means by which provincial and regional interests are represented in Ottawa.

    But in an attempt to sidestep perennial disagreements between the federal government and the provinces over how the Senate should be reformed, the Harper government has repeatedly requested that Parliament enact changes without prior provincial approval, most recently via Bill C-7. (2) Bill C-7 would have imposed nine-year, non-renewable term limits on newly appointed Senators (subject to mandatory retirement at age 75) and sanctioned provincially-organized elections for "Senate nominees", whom the Prime Minister would need to consider before recommending Senate appointments to the Governor General. Facing serious questions as to the constitutionality of these proposals, (3) the Harper government has initiated a reference to the Supreme Court of Canada (the "Reference"). (4)

    This article focuses on the constitutionality of the reforms that have been proposed in both Bill C-7 and the Reference, in light of the federal-provincial bargain made in the 1982 Act. It argues that, while Parliament has the power to impose the term limits proposed in Bill C-7, it lacks the power to authorize the election of Senate nominees by the provinces. This latter reform would have the effect of transforming the Senate into an elected body, and as such may only be effected by constitutional amendment with the consent of the provinces as provided by paragraph 42(1)(b) of the 1982 Act.

    This article proceeds as follows. Part II places Bill C-7 in context by reviewing the structure and roles of the Senate, along with recent proposals for Senate reform. Part III reviews the constitutionality of the reforms proposed in Bill C-7. Part IV departs from the strictly legal discussion in Part III to consider the broader principles of federalism and democracy (which have been held to undergird Canada's constitutional and political traditions), and the implications the reforms proposed in Bill C-7 may have for these principles. (5) It argues that the best means of upholding both of these principles is to preserve the role that the 1982 Act guaranteed to the provinces in shaping Senate reform.

  2. SENATE REFORM IN CONTEXT

    This section places Bill C-7 in context by describing the structure and roles of the Senate. It also discusses the adoption of elected Senates by the United States and Australia, two countries with strong historical ties to Canada. Finally, it describes some of the Canadian Senate reform proposals that preceded Bill C-7.

    i. The Structure of the Senate

    The Senate has been a part of the Parliament of Canada since Confederation in 1867. (6) Modeled partly on the appointed Legislative Councils that existed in the pre-Confederation provinces and the UK House of Lords, (7) the Senate consists of members appointed by the Governor General pursuant to the Constitution Act, 1867 (the "1867 Act"). (8) To be eligible for appointment to the Senate, one must have attained the age of 30 and meet certain citizenship, residency, and property requirements. (9) Initially, Senators could serve for life, but the 1867 Act was later amended to provide that Senators could serve only until reaching the age of 75. (10)

    Senators enjoy the same privileges, powers, and immunities as members of the House of Commons, except for the capacity to introduce money bills. (11) The Senate carries an absolute veto over all ordinary legislation, but it has only a suspensive veto of 180 days in respect of constitutional amendments (unless the amendment is made by Parliament unilaterally, in which case the Senate maintains an absolute veto). (12)

    Seats in the Senate are distributed according to the principle of equality of regions. (13) The four "Divisions" of Canada--Ontario, Quebec, the Maritimes, and the western provinces--hold 24 seats each; a further six seats are reserved for Newfoundland and Labrador, and the three territories each hold one Senate seat. (14)

    ii. Roles of the Senate

    The Senate has been said to fulfill three primary roles: to represent and protect regional interests, to revise legislation, and to investigate matters of public interest. (15) Senators also play a fourth, more partisan role, in furthering the political interests of the Prime Minister who recommends their appointment. (16)

    a. The Representative Role

    At the pre-Confederation Quebec Conference of 1864, several delegates expressed a hope that the Senate would play a role in upholding the balance of power between the federal government and the provinces. (17) The Senate is widely seen as having failed to play this role, which is today carried out by the provincial premiers, and to some extent by the federal Cabinet. (18) Given the potential for a reformed Senate to reassume this role, and in so doing either amplify or dilute premiers' political influence (depending on the nature of such reform), it comes as little surprise that provincial premiers have shown a consistent interest in Senate reform. (19)

    b. The Legislative Role

    The drafters of the 1867 Act intended that the House of Commons would be the primary originator of legislation and that the Senate's legislative role would be limited to the refinement and revision of such legislation. (20) This division of labour prevents legislative deadlock and reflects the principle of responsible government, whereby the government must enjoy the confidence of, and is therefore ultimately controlled by, the representative house of Parliament. (21) Delegates to the Quebec Conference believed that, if the Senate were elected, Senators would feel they had a political mandate to frustrate the work of the House of Commons--if so, the will of a house selected on the basis of regional representation could thwart that of a house chosen on the basis of representation by population, and the principle of responsible government would be undermined. (22) An appointed Senate with no mandate from the electorate, on the other hand, could be relied upon to defer to the considered will of the House of Commons, much like the UK House of Lords. (23) The Senate has not strayed far from this role. Although it has occasionally obstructed government initiatives, (24) the Senate rarely rejects House of Commons bills outright; in fact, it has done so only five times since 1990. (25)

    c. The Investigative Role

    In practice, the Senate's most valuable work is likely the investigative and policy development work undertaken by its committees. This function is similar to that of Royal Commissions, however the Senate is able to carry out such work at a lower cost because it employs permanent research staff. (26) Senators are also seen as better-fitted to this role than Members of Parliament ("MPs") because they tend to have more legislative experience, (27) more time to develop expertise in a particular policy area (since Senate committee membership is relatively stable and Senators do not have to carry out the constituency and political work expected of MPs), and more institutional freedom to question the positions of their parties (as they have little chance of being appointed to Cabinet and no fear of being removed from office by their party leaders). (28)

    d. The Partisan Role

    Although he or she cannot remove Senators from office, the Prime Minister can use Senate appointments to further the interests of the governing party by appointing party organizers and other loyal partisans. The partisan nature of most appointments is often cited as evidence that the Senate is in desperate need of reform. (29) But not all Senate appointments are partisan--Prime Ministers have often recommended the appointment of independent or opposition Senators, either out of a desire to improve the caliber of the Senate's membership or out of a desire to deflect criticism of their more partisan appointments. (30) In fact, every Prime Minister since Louis St. Laurent who has served more than one year in office (with the exception of Prime Minister Harper) has appointed at least one independent or opposition Senator, apparently to boost the ranks of the Senate opposition when it became unacceptably small. (31)

    iii. Possible Models for Reform: The United States and Australia

    Nonetheless, the public's evident distaste for the use of public...

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