Renewing the Senate under the Section 44 Amending Formula.

• Author: Hays, Dan

Parliament has the ability to modernize aspects of the Senate without needing to resort to constitutional amendment. In this article, the author highlights some archaic provisions of the Constitution Act, 1867 that could be updated without altering the Senate's fundamental nature. These changes would arguably allow the Senate to better reflect contemporary Canada.

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The Liberal government, elected in 2015, has chosen to renew the Senate by means of a one-step non-statutory reform. The change is limited to making only non-partisan, merit-based appointments and accompanying adaptations. All other features of the Upper House's antiquated constitutional foundations continue, even though many of them serve no public purpose.

'Complex' comprehensive institutional change must inevitably involve the provinces, First Nation representatives and regional public input. There is, however, much more that Parliament can do to reform the Senate that goes well beyond the appointment process.

Section 44 of the Constitution Act 1982 states that "Subject to sections 41 (amendment by unanimous consent) and 42 (amendment by general procedure), 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." In its 2014 opinion, the Supreme Court interpreted s. 44 as meaning "unilateral amendment of aspects of government institutions that engage purely federal institutions." It went on to state that "section 44 encompasses measures that maintain or change the Senate without altering its fundamental nature."

While provinces must have a say in constitutional issues that engage their interests, there would be no constitutional prohibition to Parliament acting alone through ordinary legislation to update those sections dealing with the Senate's basic design as long as such changes do not affect its fundamental nature and role. For example, the relatively open appointment process that has been created by the current government uses a selection committee to examine the qualifications of potential appointees and make recommendations.

In my view, nothing being proposed herein would change the Senate's fundamental nature or make any structural change that would require provincial consent. That said, it is important to maintaining basic standards of governance that a Senate Modernization Bill be laid before Parliament.

Updating antiquated sections of the Constitution Act, 1867 through s. 44

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