The Senate Reference: constitutional change and democracy.

• Author: Dawood, Yasmin
• Position: Canada - Symposium on the Senate Reference

The Senate Reference is ultimately a decision about how democratic decision making ought to be conducted when the role and function of fundamental democratic institutions are themselves at stake. This case stands for the idea that unilateral decision making by Parliament is not permitted even if from a substantive standpoint the government's proposals are "more democratic" than the status quo. Consultative elections and senatorial term limits, for example, would arguably make the Senate a more representative and accountable body. Yet the Court held that such changes are subject to the Constitution's general amending formula, which means that Parliament cannot implement these changes on its own. This article suggests that the Court's interpretation of the amending procedures is based upon a deeper democratic commitment to ensuring dialogue and deliberation between and among the relevant stakeholders. The Court's approach has benefits and drawbacks. By setting itself up as the exclusive arbiter of the Constitution's "internal architecture" and the primary decisionmaker as to what constitutes an institution's "fundamental role and nature", the Court has enhanced its own authority over the evolution of the constitutional order while significantly narrowing the possibilities for constitutional change. While the Court's approach has the undeniable effect of making large-scale institutional reform difficult (if not impossible), the alternative is arguably worse. If it were possible for the government to unilaterally reform democratic institutions, then it could unilaterally reform them in an anti-democratic direction as well.

Le Renvoi sur la reforme du Senat concerne fondamentalement la maniere dont on prend des decisions dans un contexte democratique lorsque sont en jeu le role et la fonction memes d'une institution democratique de base. Cet arret incarne l'idee que les decisions unilaterales du parlement ne sont pas permises meme si, d'un point de vu substantif, les propositions du gouvernement sont << plus democratiques >> que le statu quo. Les elections consultatives et les mandats a duree limitee, par exemple, feraient du Senat un organe plus representatif et imputable. Toutefois, la Cour supreme a juge que de tels changements sont sujets a la formule d'amendement constitutionnel generale et donc que le parlement seul ne peut mettre en oeuvre de tels changements. Cet article suggere que l'interpretation donnee aux procedures d'amendement par la Cour supreme est fondee sur un engagement democratique plus profond au dialogue et a la deliberation parmi et entre les acteurs pertinents. Cette approche de la Cour supreme a des points et forts et faibles. S'etant etabli comme arbitre exclusif de << l'architecture interne >> de la constitution et comme decideur premier de ce qui constitue le << role et la nature fondamentale>> d'une institution, la Cour supreme a agrandi son autorite sur l'ordre constitutionnel tout en limitant les possibilites pour le changement constitutionnel. Et quoique l'approche de la Cour a pour effet indeniable de rendre difficile, voire impossible, la reforme institutionnelle a grande echelle, l'alternative est vraisemblablement pire. S'il etait possible pour le gouvernement de reformer les institutions democratiques unilateralement, le gouvernement pourrait alors reformer ces institutions dans des directions anti-democratiques aussi.

Introduction I. Critiques and Reforms II. Democracy and Constitutional Amendment III. Consultative Elections and the Role of the Senate IV. Senate Abolition, and Senatorial Tenure and Qualifications Conclusion Introduction

In the Senate Reference, (1) the Supreme Court held that the government's proposed reforms to the Senate can only be achieved by following the constitutional amendment procedures in Part V of the Constitution Act, 1982. (2) There were six reference questions. The first concerned the legislative authority of Parliament to unilaterally impose senatorial term limits of various lengths. (3) The second and third questions concerned the legislative authority of Parliament to pass legislation that would allow for consultative elections in the provinces for nominees for Senate appointment. The fourth question asked whether Parliament could unilaterally repeal the wealth and property qualifications for Senators. The fifth and sixth questions considered the issue of whether the abolition of the Senate could be achieved under the general "7/50" amending formula or if Senate abolition could only be accomplished under the unanimous consent procedure.

This article argues that the Senate Reference is ultimately a decision about how decision making ought to be conducted when the role and function of fundamental democratic institutions are themselves at stake. (4) The Supreme Court found, in essence, that unilateral decision making by Parliament is not permitted even if from a substantive standpoint the proposals are "more democratic" than the status quo. The Court held that consultative elections and senatorial term limits must be implemented under the "7/50 rule", which requires the consent of the Senate, the House of Commons, and the legislative assemblies of at least seven provinces representing half the population of all the provinces. (5) The wealth and property qualifications of Senators could be repealed in part by Parliament, although a full repeal would require the consent of the Quebec legislature. The abolition of the Senate would require the unanimous consent of Parliament and all the provinces.

This article claims that the Court's interpretation of the requirements for constitutional amendment is based upon a deeper democratic commitment to ensuring dialogue and deliberation between and among the relevant stakeholders. The process by which democratic institutions are to be reformed must itself be democratic in this deeper sense regardless of the substance of the proposed reforms. Although the Court's approach has the unfortunate effect of making large-scale institutional reform difficult (if not impossible), the alternative is arguably worse. If it were possible for the government to unilaterally reform democratic institutions, then it could unilaterally reform them in an anti-democratic direction as well. (6)

Despite its commitment to a deliberative democratic process for constitutional amendment, the Court's general approach to constitutional amendment questions is susceptible to criticism. By setting itself up as the exclusive arbiter of the Constitution's "internal architecture" and the primary decision-maker as to what constitutes an institution's "fundamental role and nature", the Court has enhanced its own authority over the evolution of the constitutional order while significantly narrowing the possibilities for constitutional change. For instance, the Court's determination that the Senate does not have democratic legitimacy unnecessarily undermines the Senate's representative function in the Canadian political order. The Court's position runs the risk of locking into place a very narrow view of the function of the Senate. More generally, the Court's approach runs the risk of freezing into place the status quo operation of democratic institutions and processes.

This article is organized into four sections. Part I addresses the critiques of the Senate and suggested reforms. Part II sets out the Supreme Court's approach to constitutional amendment. It focuses, in particular, on two noteworthy features of the Court's approach. First, the Court's use of the Constitution's "internal architecture" was crucial to its determination that the Constitution could be amended even in the absence of actual revisions to the constitutional text. Second, the Court held that the general amending procedure in section 38 is the default procedure for constitutional amendment. In addition, Part II argues that the Court's approach is based upon a commitment to democratic decision making. The article both identifies the democratic commitments that underlie the Court's decision and offers an evaluation of the benefits and disadvantages of the Court's approach. Part III examines the Court's treatment of consultative elections and the role of the Senate. It argues, in particular, that the Court's decision turned on its assessment of the "fundamental nature and role" of the Senate. This Part offers a critical analysis of the Court's assessment of the Senate's role in the constitutional order. Part IV addresses the property and wealth qualifications of Senators, senatorial term limits, and the abolition of the Senate.

1. Critiques and Reforms

   The Senate has been criticized almost since its inception. (7) Although there exists a wide array of critiques, there is a notable consistency in the types of problems that have been identified over the decades. As the "whipping post of democratic institutions", (8) the Senate is routinely charged with being ineffective, unaccountable, unimpressive, and lacking in legitimacy. (9) As noted by one observer, "[i]t would be idle to deny that the Senate has not fulfilled the hopes of its founders; and it is well also to remember that the hopes of its founders were not excessively high." (10)

   The Senate is also criticized for a being an institution of patronage and partisanship. (11) The partisan complexion of the Senate arises because the Prime Minister enjoys a monopoly in choosing Senators. (12) Critics argue that the appointed nature of the Senate undermines representation. (13) Not only are Senators unelected, but as a result of the selection process, they represent the interests of the political parties rather than the regions from which they are appointed. (14) Senate "appointments are used first and foremost as a political reward for party faithful, both elected and those who toil behind the scenes." (15) Senators are also chosen for their ability to raise funds for the parties' "war chests". (16) Although the...