The Supreme Court of Canada has announced it will rule next Friday on the Prime Minister’s various questions regarding the constitutionality of Senate reform. Regardless of how they rule — and I don’t think it’s going to be much of a surprise — the decision will be one of the most important in Canadian political history, as it will finally provide closure to the age-old question of whether our horrible Senate is something we can “do anything” about, or merely something we’re, for all practical purposes, stuck with forever.
The democratic reform minister submitted six questions to the Supreme Court of Canada in early 2013. Question 4 isn’t very interesting; it relates to the archaic provision that Canadian senators must be property-owners. The other five are what matters; they have to do with establishing clear ground rules regarding how the Senate can or can’t be elected or abolished.
The amending provision of the constitution of Canada, known as “Part V” of the Constitution Act, 1982, is badly-written, like most of the constitution of Canada. Basically, it says that some parts of the Canadian political system are arbitrarily more important than others, and amendments changing the important parts should be harder to pass as a result.
To pass an amendment affecting one of the “unimportant” things requires the assent of the House, the Senate, and the governments of two-thirds of the provinces representing at least 50% of the national population. This is sometimes called the “7/50″ formula (since two-thirds of 10 provinces is seven) and it is outlined in section 38(1) of Part V.
To pass an amendment affecting one of the “important” things requires the assent of the House, the Senate, and the governments of every single province — in other words, “unanimous consent.” This is outlined in section 41.
The “unimportant things” (the easier-to-change things) are listed in section 42. They are:
(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;
(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
(d) subject to paragraph 41(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories; and
(f) notwithstanding any other law or practice, the establishment of new provinces.
The “important things” (that require unanimous consent to change) are stated in section 41. They are:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;
(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;
(c) subject to section 43, the use of the English or the French language;
(d) the composition of the Supreme Court of Canada; and
(e) an amendment to this Part.
Most Canadians are probably vaguely aware of these two-tiers of amendments. Less well-known is a third tier, found in section 44 concerning what we might call the “super unimportant things.” It is perhaps the worst, most confusingly-worded part of Section V, and states, in full:
“Subject 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.”
The Harper administration wants the following:
- term limits for senators (question 1)
- Senate elections, either run by the federal government (question 2) or the provincial governments (question 3)
These three questions to the Supreme Court operate on the hope that Senate reform of this sort falls under the category of a “super unimportant thing” covered section 44 — which is to say, a change “in relation to… the Senate” that can be made by ordinary statute, without any provincial governments getting involved.
The government also wants closure on whether abolishing the Senate would count as an unimportant thing under section 38 (question 5), or an important thing under section 41 (question six).
That’s a lot of complex background, but it’s only necessary, again, because the Constitution is extraordinarily badly-written and thus extremely unclear about something that should really be quite obvious. As is not uncommon with Supreme Court cases, the answers to the Harper questions will ultimately be little more than political opinions delivered under the thin disguise of subjective language analysis.
Here’s my attempt to isolate the subjective language in question:
- “the powers of the Senate and the method of selecting Senators” (an “unimportant thing” under section 42)
- “in relation to… the Senate” (a “very unimportant thing” under section 44)
- “an amendment to this Part” (an “important thing” under section 41)
Let’s do language analysis together one statement at a time.
“the powers of the Senate and the method of selecting Senators”
The “powers of the Senate” obviously refers to the power of the Senate to pass or veto legislation. Abolishing the Senate would affect its power, which appears to makes abolishing the Senate clearly an “unimportant thing” requiring the easy amending formula.
The current “method of selecting Senators” entails the governor general picking someone. The Governor General picks who the prime minister tells him to pick, which is of course the understood practice of our constitutional monarchy system, and not something anyone contests the legality of. Indeed, this is actually a rare advantage of the constitutional monarchy system; if the only hard rule in law is that the figurehead has to have the final, symbolic say over something, it’s quite easy to make up new processes in which to “advise” his decision without having to open up the constitution. Canada’s current process of appointing Supreme Court judges has recently become a convoluted, multi-step, ad-hoc process, for example, but because the governor general still has final sign-off — the only thing the Constitution requires for judicial appointments — no one contests the constitutionality of that convoluted appointment process.
Even if Senate elections were held, the governor general could still formally “approve” Senators-elect after they won the vote. This was explicitly provided in the Harper government’s go-nowhere Senate Reform Act of 2006 (helpfully cited alongside the Supreme Court questions), which only described Senators-elect as being the “preferences” of voters, and thus still subject to the polite fiction that the GG has final say.
It is not difficult to argue that electing senators (so long as the polite fiction of the governor general’s power is maintained) does not require a constitutional amendment.
Term limits are a stickier wicket. As we’ve learned from the whole Senator Duffy-Harb-Brazeau-Wallin brouhaha, senators are not easily removed from the chamber. The constitution says a senator shall “hold his place in the Senate until he attains the age of seventy-five” which doesn’t leave a lot of ambiguity. Unlike an “advisory” Senate election, there is no way to square “until he attains the age of seventy-five” with “until he finishes a term of X years.” A common-sense reading therefore suggests term limits would alter the “method of selecting Senators” and thus should require an “easy” style constitutional amendment under section 42.
“in relation to… the Senate”
This appears to indicate that the Parliament of Canada does indeed have the power to regulate certain things about the Senate. Those who take the maximally obstructionist perspective on Senate reform — that any change to anything requires a constitutional amendment — should ask why this provision is present in our constitution, and what it could possibly cover. I would argue it provides a legal mandate for Ottawa to conduct “advisory” Senate elections, or outsource that responsibility to the provinces.
“an amendment to this Part”
This line worries me, because it’s ambiguous enough to give the Supreme Court grounds to rule all non-amendment Senate reform unconstitutional and all constitutional Senate amendments “important things” requiring climbing the hill of unanimous provincial consent.
The maximalist logic goes like this:
To pass any sort of constitutional amendment in Canada requires a vote of approval from the House of Commons, the Senate, and some assortment of provincial legislatures. If the Senate is altered in some consequential fashion, it could be argued the new Senate is no longer the same Senate the amending formulas talk about, and therefore the process of constitutional amendments has been compromised, and therefore Senate reform must require unanimous provincial consent, since altering the amendment process is one of those “important things” that requires it.
A slightly less maximalist argument would hold, at the very least, that abolishing the Senate counts as affecting the amending formula, since it would have the same practical consequence as saying today that the Senate shouldn’t play any role whatsoever in constitutional amendments, which clearly would affect the amending process.
The core question in both cases is basically whether altering some other part of the constitution that ends up affecting the amending process is the same as deliberately affecting the amending process. That’s very subjective.
To summarize, in my mind, a reasonable reading would hold that:
- Senate elections can be instituted by ordinary statute
- Term limits require an “easy” constitutional amendment
- Abolishing the Senate requires a constitutional amendment, probably an “easy” one unless you want to be very fussy about it
Predicting the Future
Despite this, I predict the Supreme Court will rule that any sort of Senate reform cannot be done without unanimous provincial consent.
I predict they will offer a very maximalist, literal reading of the powers of the governor general, and argue that even “advising” him to do something through a “preference” election undermines his independence and sovereignty, and thus infringes on the powers of his office, which as we may recall from many paragraphs earlier, is one of the “important things” that requires a hard-style amendment to alter. I predict they will hold that term limits are a similar infringement of his power.
I believe they will then supplement this conclusion with the sort of maximalist reading of how altering the Senate affects the sanctity of the constitutional amendment process that I outlined above.
I predict this because our current Supreme Court seems to mostly issue rulings that are in sync with the conventional wisdom of the Canadian establishment, and establishment opinion has long held that Senate reform is super super difficult which is why it’s never been done. Establishment opinion also tends to take the governor general much more seriously than his office deserves to be, which is why I suspect they will be ultra-sensitive to anything that reeks of infringing on his prerogatives.
I hope I am wrong, but I suspect I won’t be. If they rule in the way I expect, the Canadian political system will have truly passed a hopeless point of no return.
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