Unsteady architecture: ambiguity, the Senate Reference, and the future of constitutional amendment in Canada.

• Author: Macfarlane, Emmett
• Position: Symposium on the Senate Reference

This article critically examines the Supreme Court of Canada's opinion in the Senate Reform Reference from the perspective of its coherence in interpreting the various amending procedures in Part V of the Constitution Act, 1982. It analyzes the ways that the underlying logic of the Court's reasoning, particularly with respect to the method of selecting senators and senatorial term limits, creates ambiguity and risks unintended consequences for future attempts at constitutional amendment. The Court's explicit refusal to distinguish between the federal government's unilateral ability to enact a retirement age and its logic that term limits, regardless of length, require the consent of the provinces under the general amending procedure lacks logical consistency and arguably erodes the unilateral amending procedure to a problematic degree. In the context of its reasoning with respect to changes to the method of selecting senators, the Court's reliance on the amorphous notion of the "constitutional architecture" clouds the definable limits of "method of selection" under section 42(1)(b). The Senate Reform Reference introduces considerable ambiguity into what changes the federal executive can implement with respect to the appointments process itself. The article concludes by exploring the political implications that the decision has for the future of Senate reform specifically and for our ability to amend the constitution generally.

Cet article porte un regard critique sur la decision de la Cour supreme du Canada dans le Renvoi relatif au Senat. Il aborde sa coherence selon la perspective de l'interpretation des procedures d'amendement contenues dans la Partie V de la Loi constitutionnelle, 1982. L'article analyse les moyens dont la logique sous-jacente au raisonnement de la Cour, particulierement en ce qui a trait a la methode de selection des senateurs et aux limites apportees a leurs mandats, cree de l'ambiguite et court le risque de creer des consequences involontaires affectant de futures tentatives d'amendements constitutionnels. La Cour refuse expucitement de distinguer entre la capacite qu'a le gouvernement federal d'imposer unilateralement un age de retraite et sa propre logique, selon laquelle la procedure generale d'amendement exige le consentement des provinces dans le cas de l'imposition de limites aux mandats des senateurs, peu importe leur duree. Ceci demontre un manque de cohesion dans sa logique et erode la procedure d'amendement unilaterale a un degre problematique. D'ailleurs, le raisonnement de la Cour ayant trait au changement des modes de selection des senateurs se fie sur la notion amorphe de > et, ce faisant, brouille les limites definissables de ce qui constitue un > selon l'article 42(1)(b). Le Renvoi relatif au Senat introduit un niveau considerable d'ambiguite a l'egard des modifications du processus meme de nomination senatoriale que peut effectuer l'executif federal. Cet article conclut en explorant les implications politiques de la decision pour l'avenir de la reforme du Senat, de facon specifique, et pour notre capacite d'amender la constitution, de facon plus generale.

Introduction I. Critiquing the Senate Reference A. Consultative Elections B. Terni Limits C. Senate Abolition II. Implications of the Senate Reference Conclusion Introduction

In the spring of 2014, the Supreme Court of Canada rendered decisions in the Supreme Court Act Reference (1) and the Senate Reference, (2) which together marked the Court's first comprehensive examination of the constitutional amending formula in Part V of the Constitution Act, 1982. (3) This article critically examines the Senate Reference from the perspective of its coherence in interpreting the various amending procedures. It argues that the underlying logic of the Court's reasoning, specifically with respect to the method of selecting senators and senatorial term limits, creates ambiguity and risks unintended consequences for future attempts at constitutional amendment generally and for Senate reform specifically.

The federal Conservative government had long sought to implement Senate reform through ordinary statute, a policy that has been a key feature of the Conservative Party's electoral platforms since it first formed government in 2006. (4) The objective was to implement term limits for senators and consultative elections as part of the Senate appointments process. After repeated efforts to pass a bill, (5) the government finally acquiesced to critics who argued that the changes required formal constitutional amendment and submitted a set of reference questions to the Supreme Court for it to determine whether Parliament could enact such reforms without the approval of the provinces. The reference also asked which procedure under Part V was required for Senate abolition. (6) The constitutional formula under Part V includes five to seven different procedures for amendment, depending on how they are counted. Of particular relevance for the Senate Reference questions are: the general procedure, which requires the consent of Parliament and at least seven provinces representing at least fifty per cent of the population; (7) section 41 of the Constitution Act, 1982, which mandates unanimous consent of the provinces for particular changes, including changes to Part V itself; (8) section 42(1)(b), which specifically states that amendments pertaining to "the powers of the Senate and the method of selecting Senators" must be done under the general formula; (9) and section 44, which states that "[s]ubject to sections 41 and 42, 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." Ultimately, the Court reached a unanimous opinion that provincial consent for term limits and consultative elections is required under the general amending procedure and that unanimity is required for abolition.

The Court's approach to assessing the constitutional amending procedures begins with a starting point, articulated in the Secession Reference, (10) that constitutional interpretation involves examining "the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning." (11) The justices note as well that "constitutional interpretation must be informed by the foundational principles of the Constitution, which include principles such as federalism, democracy, the protection of minorities, as well as constitutionalism and the rule of law." (12) It is through these principles that the Court concludes, as it has invoked in earlier cases, (13) that the Constitution ought to be regarded as having an "internal architecture" (14) or "basic constitutional structure," (15) meaning that the constitution

must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text. (16) Describing the Constitution's architecture is in line with a purposive approach to interpretation that seeks to capture the meaning of specific constitutional provisions and to prevent interpretations that conflict with or contradict the application of other components of the constitution. It also underscores, as the justices point out, that amendments to the constitution are not limited to textual changes, but also apply to changes to the way the constitution operates. Therefore, on the one hand, an appreciation of the constitutional architecture ensures specific provisions are interpreted to operate as parts of a coherent whole.

On the other hand, however, too much dependence on the fundamentally vague notion of the basic structure of the constitution may divorce specific provisions from their textual underpinnings and their basic meaning. A reliance on the concept of the constitution's architecture also gives the justices considerable discretion in choosing how to locate and define specific issues depending on how they view the broader governing structure. Interpreting specific constitutional provisions with too much of a focus on the indeterminate constitutional structure rather than rooting analysis more directly in the text thus risks a great level of dependence on the justices' ability to accurately describe the various institutions, conventions, and processes that animate the constitution.

In what follows, I argue that the Court relies too heavily on the concept of constitutional architecture in its reasons when a slightly more narrow, more textually rooted approach would have been sufficient to arrive at a coherent dividing line between the various amending procedures and to establish a clear standard for future assessments of which procedures are required for changes relating to the Senate. Further, where the justices tread too far in exploring aspects of the constitutional architecture, they do not go far enough in examining the amending formula's specific provisions, such as section 44 of Part V of the Constitution Act, 1982, where they fail to provide a logical justification for the minimal role they outline for Parliament in effecting changes to the Senate. This article elaborates on this critique of the justices' logic relating to changes that would enact consultative elections and term limits for senators, while also briefly explaining why the Court arrived at the correct conclusion with respect to the abolition of the Senate. The remainder of the article then examines the implications of the Court's reasoning.

1. Critiquing the Senate Reference

1. Consultative Elections

   With respect to consultative elections, the federal government posed the following questions to the Court:

   2. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of...