Prospects for Structural Reform

• Author: Gary William O'Brien
• Pages: 87-102

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 

Prospects for Structural Reform

In Reference re Senate Reform, , the Supreme Court c oncluded that

term limits for senators and consultative elections for their nomina-

tion fall under the general amending procedure, namely section ()

of the Constitution Act, . is process requires the consent of Par-

liament and at least seven provinces representing at least  percent

of the Canadian population. As former Senator Hugh Segal noted:

“For better or worse, the court’s decision ref‌lected precisely what the

Fathers of Confederation had actually designed.” eir agreement

on the Senate “was not some slapdash last-minute compromise” but

rather “the resulting embrace of balance and compromise.” Struc-

tural reform requires substantial provincial consent.

e Court was commenting specif‌ically about those proposals

that “engage the interests of the provinces.” It noted that section ()

was not the only amending formula that could bring constitutional

change to the Senate. It highlighted section , which states that

Parliament “may exclusively make laws amending the Constitution

of Canada in relation to the executive government of Canada or

the Senate or the House of Commons.” e Court added: “Section

, as an exception to the general procedure, encompasses measures

that maintain or change the Senate without altering its fundamental

nature and role.”

THE SENATE OF CANADA

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e justices felt the requirement that senators have a personal

net worth of at least , could be repealed under section ,

since “it updates the constitutional framework relating to the Senate

without aecting the institution’s fundamental nature and role.”

Former Senate Speaker Dan Hays has observed there are other sec-

tions of the Constitution Act,  that could also be modernized

under section .

One example is section (), the provision that requires a sen-

ator to be at least thirty years of age. Hays feels the section could

be replaced by a statement that a senator be a qualif‌ied elector, that

is be at least eighteen years old. Regarding section (), that a seat

must be vacated if a senator becomes a dual citizen, Hays notes:

[W]hen the Constitution Act,  was drafted, the concept of cit-

izenship was considerably dierent than it is today. e idea of

dual citizenship did not exist, as the assumption was that you

could be loyal to only one country at a time. As we know, a person

can acquire citizenship in another country without applying or

doing any positive act. For instance, in some cases, by marrying a

citizen of a particular country, one automatically becomes a citizen

of that country. If there are circumstances in which dual citizen-

ship is allowed under the laws of Canada, it should not be an

impediment to Senate membership as it is not now an impediment

to membership in the House of Commons.

Likewise, there is a need to modernize section (), which speci-

f‌ies the seat of a senator attainted of treason or convicted of felony,

or of any infamous crime, be vacated. Hays observes:

e crime of treason is still in the Criminal Code although very

rarely invoked. e word has been contentious in Canadian his-

tory, and should perhaps be removed. e concepts of felonies

and misdemeanours were replaced in the original Code by indict-

able oenses and summary conviction oences. Generally speak-

ing, in  felonies were graver crimes perhaps punishable by

death which resulted in the forfeiture of the perpetrator’s lands