Senate Reference Quebec Appeal Court

Complete Text minus Appendix of Quebec Court of Appeal decision on constitutionality of unilateral Senate Reform by Federal Government thru Parliament of Canada.

Projet de loi fédéral relatif au sénat (Re) 2013 QCCA 1807
COURT OF APPEAL

CANADA
PROVINCE OF QUEBEC
REGISTRY OF MONTREAL

No: 500-09-022626-121 (Decree #346-2012) DATE: OCTOBER 24, 2013

CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q.
PIERRE J. DALPHOND, J.A.
YVES-MARIE MORISSETTE, J.A.
ALLAN R. HILTON, J.A.
JULIE DUTIL, J.A.

REFERENCE RE BILL C-7 CONCERNING THE REFORM OF THE SENATE

ATTORNEY GENERAL OF QUEBEC
PETITIONER
v.

ATTORNEY GENERAL OF CANADA

and

SERGE JOYAL
SOCIÉTÉ DE L’ACADIE DU NOUVEAU-BRUNSWICK
FÉDÉRATION DES COMMUNAUTÉS FRANCOPHONES
ET ACADIENNE DU CANADA
INTERVENERS

OPINION OF THE COURT

[1]             Pursuant to the Court of Appeal Reference Act, R.S.Q. c. R-23, the Court is obliged to give its opinion to the Government on the following three constitutional questions that relate to possible amendments to the method of selecting members of the Canadian Senate and the duration of their term of office:

[Translation]

1.         Is An Act respecting the election of senators and amending the Constitution Act, 1867 in respect of Senate terms limits as well as its Schedule given first reading on June 21, 2011 (Bill C-7) an amendment to the Constitution of Canada bearing on the office of the Governor General contemplated by paragraph 41(a) of the Constitution Act, 1982 that cannot be adopted without the approval of the Senate, the House of Commons and the legislative assembly of each province?

[QCA answered NO]

2.         Is An Act respecting the election of senators and amending the Constitution Act, 1867 in respect of Senate terms limits as well as its Schedule given first reading on June 21, 2011 (Bill C-7) an amendment to the Constitution of Canada bearing on the method of selecting Senators contemplated by paragraph 42(1)(b) of the Constitution Act, 1982 that can be adopted only in conformity with subsection 38(1) of the Constitution Act, 1982, that is, with the approval of the Senate, the House of Commons and the legislative assemblies of at least two-thirds of the provinces that have in the aggregate at least fifty per cent of the population of all of the provinces?

[QCA answered YES]

3.         Is An Act respecting the election of senators and amending the Constitution Act, 1867 in respect of Senate terms limits as well as its Schedule given first reading on June 21, 2011 (Bill C-7) an amendment to the Constitution of Canada with respect to the fundamental characteristics and role of the Senate that can be adopted only in conformity with subsection 38(1) of the Constitution Act, 1982, that is, with the approval of the Senate, the House of Commons and the legislative assemblies of at least two-thirds of the provinces that have in the aggregate at least fifty per cent of the population of all of the provinces?

[QCA answered NO]

[2]             Since the adoption of the order-in-council initiating this reference, the Governor General in Council submitted a reference to the Supreme Court of Canada. The six questions thus posed ask that court to determine Parliament’s powers in respect of amendments concerning the Senate, and at the same time, to do likewise with respect to the provinces.

[3]             In addition, subsequent to the hearing of this reference, on September 13, Bill C‑7 (the Senate Reform Act) died on the order paper when the first session of the current Parliament was prorogued. When asked at the hearing what the effect would be of such an eventuality, counsel for the Attorney General of Quebec and the interveners answered that this reference nevertheless still raised questions of current interest, thus warranting answers. The Court agrees; hence this opinion.

THE CONTEXT

[4]             Canada’s founding fathers sought to implant a parliament modeled on that of the United Kingdom (see the preamble to the Constitution Act, 1867). Accordingly, there were two legislative houses, the lower one also called the House of Commons and the upper one, called the Senate, since the British colonies of North America did not have an established nobility that could constitute a legislative chamber such as the House of Lords.[1]

[5]             These two institutions enjoy the same privileges, immunities and powers as those recognized at the time by the Parliament of the United Kingdom and by its members (section 18, Constitution Act, 1867). In law their powers were identical, save with respect to bills involving the expenditure of public funds or the imposition of taxes (section 53, Constitution Act, 1867) and some constitutional amendments (section 47, Constitution Act, 1982).

[6]             The transcript of the pre-confederation conferences shows that the founding fathers discussed the role and composition of the Senate at length. There is no doubt that this institution was a fundamental component of the federal compromise in 1867. In fact, the Constitution Act, 1867 contains no less than 15 provisions that are specific to the Senate, including its powers, prerogatives and privileges, composition, appointment of senators and the duration of their tenure of office (essentially sections 21 – 36), not to mention other provisions in which reference is made to the Senate.

[7]             For Sir John A. Macdonald, there was no question of senators being elected. He disliked the fact that the members of the Legislative Council of the parliament of the province of Canada had been so elected for renewable mandates of eight years.[2]

[8]             In this Legislative Council, 24 members represented each of Lower Canada and Upper Canada since their union in 1841, without reference to their respective populations. This form of representation would be adopted in the Constitution Act, 1867, where it was provided that the colonies of New Brunswick and Nova Scotia would also, together, have 24 senators[3]. The three regions of the new Dominion were thus equally represented in the Senate.[4] Moreover, 24 senatorial electoral divisions were created for Quebec that corresponded to those of the Legislative Council of the province of Canada for Lower Canada in order to protect the province’s Anglophone and Protestant minority.

[9]             Historians recognize that for the fathers of confederation, the Senate would have the following functions:

· Regional representation (three then four regions);

· Representation of Quebec’s Anglophone minority;

· Sober second thought for bills and amendments to them;

· Providing oversight to those who were wealthy, including the possibility of controlling any excesses of elected officials.

[10]         Over time, the Senate also became the legislative chamber for the introduction of certain kinds of legislation by the government; particularly laws such as those that were technical or uncontroversial (of which omnibus bills would be an example) apart from money bills.

[11]         In the same manner, as members of parliament, senators could influence a multitude of ministerial or cabinet decisions, especially if they formed part of the government caucus.

[12]         In fact, it seems that the Senate and its members play a significant role in federal political life, and that the institution is not simply a mirror of the House of Commons.[5]

[13]         For a variety of reasons, there are those who publicly advocate the abolition of the Senate, or at least the reform of an institution whose usefulness, as it currently stands, is debateable. Such considerations, however, are not relevant for the purposes of this reference, which does not address the legitimacy or the necessity of the proposed changes to the method by which senators are selected and the duration of their term of office. These questions are purely political. The Court, however, is only called upon to give its opinion on the question of whether under the Constitution, the participation of the provinces is necessary to render these amendments valid.

[14]         Before concluding this succinct contextual summary, it should be noted that the great majority of federations have a bicameral legislature, with the second one often called the Senate.[6]

RELEVANT CASE LAW

[15]         In December of 1979, the Supreme Court emphasized in Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, at p. 66 that: “The Senate has a vital role as an institution forming part of the federal system created by the Act.”[7]

[16]         It described its functions in the following manner:

A primary purpose of the creation of the Senate, as a part of the federal legislative process, was, therefore, to afford protection to the various sectional interests in Canada in relation to the enactment of federal legislation. (p. 67).

[…]

The power to enact federal legislation was given to the Queen by and with the advice and consent of the Senate and the House of Commons. Thus, the body which had been created as a means of protecting sectional and provincial interests was made a participant in this legislative process. (p. 68).

[…]

For the reasons already given in respect of Question 1, it is our view that Parliament cannot under s. 91(1) impair the role of the Senate in that process. (p. 75).

[…]

As previously noted, the system of regional representation in the Senate was one of the essential features of that body when it was created. Without it, the fundamental character of the Senate as part of the Canadian federal scheme would be eliminated. (p. 76).

[…]

Sub-question (e) paragraph (iv) deals with the possible selection of all or some members of the Senate by direct election by the public. The substitution of a system of election for a system of appointment would involve a radical change in the nature of one of the component parts of Parliament. As already noted, the preamble to the Act referred to “a constitution similar in principle to that of the United Kingdom”, where the Upper House is not elected. In creating the Senate in the manner provided in the Act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons. This was accomplished by providing for the appointment of members of the Senate with tenure for life. To make the Senate a wholly or partially elected body would affect a fundamental feature of that body. We would answer this sub-question in the negative. (p. 77).

[17]         Thus, as the Senate is a fundamental component of the federal compromise in 1867, the Supreme Court held in the Reference re the Upper House that its essential characteristics, including the method of selecting its members, could not be amended without the provinces’ participation. In so doing, it rejected the federal government’s submissions that Parliament could act alone pursuant to its power to amend the Constitution under subsection 91(1) of the Constitution Act, 1867 (a provision since repealed with the coming into force of the Constitution Act, 1982 and replaced by section 44 of the latter).

[18]         Finally, in Reference re the Secession of Quebec, [1998] 2 S.C.R. 217, the Supreme Court recalled that our Constitution is based on several principles, one of which is federalism as a system of the country’s government, including the amendment of its institutions.

THE PARTIES’ ARGUMENTS

[19]         Under the provisions of Bill C-7, the federal government envisaged two types of reform: first, to limit the office of senator to a non-renewable term of nine years; and, second,  to hold elections prior to the nomination of senators.

[20]         The Bill expressly recognized the amendment of section 29 of the Constitution Act, 1867 relating to the term of office of senators, but did not purport to amend any other provision of the Constitution.

[21]         The Attorney General of Quebec argues that Bill C-7 de facto amended section 24 of the Constitution Act, 1867 relating to the method of selecting senators by providing, in reality, for their election rather than their appointment.

[22]         According to the Attorney General of Quebec, such reforms are contemplated by paragraph 42(1)(b) of the Constitution Act, 1982, and could only be implemented in accordance with subsection 38(1), that is, with the consent of seven provinces whose population in the aggregate is equal to 50% of the ten Canadian provinces (the general amending procedure of 7/50).[8] Subsidiarily, he contends that the change in the method of selection of senators would have affected the office of the Governor General, which therefore requires the consent of Parliament and all of the provinces pursuant to section 41 of the Constitution Act, 1982. Last, he asserts that the proposed reduction of the term of office of a senator to nine years amended a fundamental characteristic of the Senate, that of appointment for life, which also requires the consent of Parliament and two-thirds of the provinces in accordance with the 7/50 general amending formula.

[23]         The Attorney General of Canada argues instead that Parliament can act unilaterally in these matters pursuant to section 91 (peace, order and good government) of the Constitution Act, 1867 and section 44 of the Constitution Act, 1982.

[24]         As for the three interveners, in essence they agree with the position of the Attorney General of Quebec with respect to the obligatory participation of the provinces in the proposed amendments. Senator Joyal insists on the constitutional provision relating to the office of the Governor General and the need for unanimity to either transform or abolish the Senate. With respect to Francophones outside Quebec and Acadians, they contend that one of the current Senate’s essential characteristics is the representation of the country’s linguistic minorities, which, from their perspective, can only be amended pursuant to section 38 of the Constitution Act, 1982 (the 7/50 general amending formula).

THE CONSTITUTIONAL AMENDING PROCEDURE

[25]         Since the patriation of the Constitution, Part V of the Constitution Act, 1982 constitutes a complete code that describes the various procedures applicable to any amendment of the Constitution (Re: Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793, at p. 806).

[26]         Part V contemplates five distinct procedures depending on the nature of the proposed amendment. In a judgment of this Court, Potter v. Quebec (Attorney General), [2001] R.J.Q. 2823 (C.A.), leave to appeal to the Supreme Court of Canada denied on October 31, 2002, [2002] 3 S.C.R. x, Baudouin, J.A. summarized them as follows:

[Translation]

[12]      The first is the general procedure (sections 38, 39 and 40 of the Constitution Act, 1982) that requires the agreement of the federal government and at least seven provinces having in the aggregate at least 50% of the population.

[13]      The second is the unanimous procedure (section 41) that covers only a certain number of matters judged to be of particular importance (for example the use of French or English, the office of the Queen, the Governor-General or the Lieutenant Governor of a province).[9]

[14]      The third is the simplified general procedure specified for 6 matters enumerated therein (section 42).

[15]      The fourth is the unilateral procedure (sections 44 and 45) that permits Parliament alone to amend the constitution relating to federal executive power, the Senate and the House of Commons as well as providing the same powers to the provinces with respect to their constitutions.

[16]      Finally, the fifth procedure, …, is the bilateral procedure (section 43).

[27]         With respect to the Senate, pursuant to section 42 of the Constitution Act, 1982, the consent of seven provinces representing in the aggregate at least fifty per cent of the population of all the provinces is required with respect to amendments relating to the following four matters (in French, “questions“):

· the powers of the Senate;

· the method of selecting senators;

· the number of senators allocated to each province;

· the residence requirements they must fulfil (section 42).

[28]         Pursuant to section 44, but subject to sections 41 and 42, Parliament may act unilaterally to amend the Constitution with respect to the Senate as follows:

44.     Sous réserve des articles 41 et 42, le Parlement a compétence exclusive pour modifier les dispositions de la Constitution du Canada relatives au pouvoir exécutif fédéral, au Sénat ou à la Chambre des communes.

 

44.     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.

 

[29]         With respect to sections 38 and 41 of the Constitution Act, 1982, they were not drafted with a view to applying to amendments to the Constitution relating to the Senate as an existing entity; rather, these amendments are governed by either section 44 or section 42. Nevertheless, unanimity would be required (section 41) to abolish the Senate, since, subject to section 47, it is an institution whose agreement is required for all amendments to the Constitution, save for those contemplated by section 45. It follows that the abolition of the Senate would amend the Constitution’s amending procedure, which would thus require the consent of Parliament and all the country’s provincial legislatures (section 41).

[30]         Determining whether a constitutional amendment relating to the Senate is subject to section 42 or section 44 is achieved by taking account of its terminology, as well as its philosophical and historical context in order to establish its true meaning and purpose (R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344).

[31]         In interpreting these provisions, the underlying principles of the Constitution  “assist in the interpretation of the text” (Reference re the Secession of Quebec, [1998 2 S.C.R. 217, para. 52), even if they should only be used with prudence in order not to diminish the importance of the Constitution’s written text (British Columbia v. Imperial Tobacco Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49, para. 65.)

[32]         The four matters set out in section 42 must therefore be given an autonomous interpretation that reflects the importance of the Senate in the pre-confederation compromise. This interpretation should also reflect the historical reality surrounding the adoption of section 42 in 1982, the numerous unsuccessful attempts up to then to abolish, modify or replace the upper house, as well as the Reference re the Upper House.

[33]         A teleological interpretative approach must be adopted. Thus, it would be wrong to say that section 44 contains the rule of general application while section 42 enumerates exceptions to Parliament’s power to act unilaterally. The latter provision should not be interpreted so restrictively.

[34]         In reality, each of these provisions is part of the same constitutional logic; the true nature of amendments to the Constitution relating to the Senate deal either with its internal management or its established characteristics in order to fulfill its role within the federal legislative structure, in particular those of ensuring provincial and regional representation and examining bills with sober second thought.

[35]         In the first of these situations, only Parliament has an interest and can act unilaterally. The protection against abuse of this power lies in the Senate itself since it has a veto over such amendments (section 47 of the Constitution Act, 1982, which does not apply to section 44). In the second situation, the provinces also have an interest and their agreement is necessary in accordance with the 7/50 formula. As for the Senate, it does not then have the power of an absolute veto (section 47).

[36]         Section 44 is thus the equivalent for Parliament of section 45 for provincial legislatures. These provisions have the same objective: to permit each level of government to amend its internal constitution, especially with respect to their legislative institutions, their inter-relationship and powers.[10] The ability to act unilaterally in this sphere of an internal constitution is easily understood, since the purpose is to preserve the independence and indeed sovereignty of each level of government.

[37]         Unlike provincial legislatures, however, certain characteristics of the Senate flow from the pre-confederative compromise. It must therefore be recognized that the provinces have an interest in those characteristics. Thus, contrary to the internal constitution of a province, Parliament’s power to amend the internal federal constitution is limited by the fact that it cannot amend those aspects of its structure that affect provincial interests.

[38]         Such is the essence of the inter-relationship between sections 42 and 44, on the one hand, and sections 44 and 45, on the other hand.

[39]         The four characteristics of the Senate in which the provinces have an interest are those set out in section 42 of the Constitution Act, 1982. That provision codifies the opinion of the Supreme Court of Canada in Reference re the Upper House relating to provincial interest with respect to the powers of the Senate, the method of selection of its members, their residence requirements and the number of seats allocated to each region and province. The unilateral amending power pursuant to section 44 of the Constitution cannot apply to these matters, such as was also the case under the now repealed subsection 91(1) of the Constitution Act, 1867 (Reference re the Upper House, supra).

[40]         The interpretation of section 42 must also take account, in particular, that because of the inability of the federal government and the provinces to agree in 1982 on a total reform of the Constitution, including the Senate, amongst other institutions, the framers decided to postpone further discussion of the matters it contains, while specifying the applicable amending procedure to incorporate an eventual consensus in the Constitution.

[41]         While section 44 relates to the amendment of existing provisions of the Constitution, section 42 addresses the amendment of the Constitution bearing on the matters enumerated therein, which is broader than the mere amendment of existing provisions. Section 42 “[translation] aligns itself well with the adoption of entirely new provisions relating to one of the matters”, to quote professors Morin and Woehrling.[11]

[42]         In addition, it cannot be contended that in the absence of a sufficient consensus based on the 7/50 formula, Parliament can legislate by adopting an ordinary statute relating to the matters for which section 42 recognizes a provincial interest, on the condition it does not formally amend the written text of the Constitution. This is so for several reasons.

[43]         At the outset, it follows from the principle of supremacy of the Constitution that political actors must comply with its text and its spirit. They cannot circumvent it on the pretext that the constitutional amending process is complex or demanding. In fact, the Constitution precludes the circumvention of its amending process (Quebec Secession Reference, supra, at paras. 73 & 74; John White, “Senate Reform: What Does the Constitution Say?” in Jennifer Smith, (Dir.), The Democratic Dilemma: Reforming the Canadian Senate, supra, 2009, p.97.)[12]

[44]         To do otherwise would disregard the principles of federalism, constitutionalism and the supremacy of law, of which the Constitution heads the list. As the Supreme Court reminds us in the Quebec Secession Reference, supra, at para. 77:

In this way, our belief in democracy may be harmonized with our belief in constitutionalism.  Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it.  By requiring broad support in the form of an “enhanced majority” to achieve constitutional change, the Constitution ensures that minority interests must be addressed before proposed changes which would affect them may be enacted.

[45]         Next, it is clear that with respect to the matters mentioned in section 42, the framers recognized that the provinces’ interest in them, and thus postponed any amendment relating to such matters until the required consensus had developed. In the meantime, until such a consensus emerged, the powers of the Senate, the method of selecting its members (the appointment process by the Governor General in the name of Her Majesty until retirement upon attaining the age of 75 years),[13] the number of senators and their residence requirements could not be amended by Parliament acting alone, with or without a constitutional amendment.

[46]         Third, Parliament’s power to make laws for the peace, order and good government of the country (section 91 of the Constitution Act, 1867) could not be interpreted as allowing it to disregard the principles of federalism or constitutionalism. If Parliament could change the status quo by an ordinary statute with respect to the matters enumerated in section 42, the development of a consensus with the provinces would become unnecessary. As a result, the federal government would have no incentive to achieve a consensus based on the 7/50 formula.

[47]         Finally, section 42 cannot be read as reflecting a consensus between the federal and provincial governments in 1982 to preserve the formalism but not the reality with respect to the matters set out therein, including the method of selecting senators. Limiting the constitutional protection afforded by section 42 to the formal power of the Governor General to name senators would appear to be not easily defensible. In that regard, what interest would the provinces have had when the Constitution Act, 1982 was adopted to protect a juridical reality that, even then, was inconsistent with political reality?

[48]         In conclusion, the status quo with respect to the matters mentioned in section 42, and in particular that of the method of selecting senators (named until the age of 75) will have to continue since as a matter of logic neither section 44 of the Constitution Act, 1982 nor section 91 of the Constitution Act, 1867 apply to them. In this respect, section 42 prescribes not only the amendment procedure for such matters, but recognizes that they are not within the sole jurisdiction of Parliament, as the Supreme Court held in Reference re the Upper House, supra.

[49]         Next to be examined is the meaning of the only other relevant provision: paragraph 42(1)(b) of the Constitution Act, 1982:

42. (1) Toute modification de la Constitution du Canada portant sur les questions suivantes se fait conformément au paragraphe 38(1) :

 

[…];

 

b) les pouvoirs du Sénat et le mode de sélection des sénateurs;

 

 

42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):

 

[…];

 

(b) the powers of the Senate and the method of selecting Senators;

 

[50]         The current method of selecting senators is what paragraph 42(1)(b) contemplates, and not the formal power of appointment vested in the Governor General. The words the framers chose indicate a desire not to limit paragraph 42(1)(b) of the Constitution Act, 1982 to the culminating gesture by which the Governor General appoints someone. In effect, this paragraph does not address the method of appointment, but rather the method of selection of senators, implying that it covers the process leading to appointment. The comments of Professor Charles-Emmanuel Côté in “L’inconstitutionnalité du projet d’élections fédérales sénatoriales”, (2010) 3 Revue québécoise de droit constitutionnel 81, at p. 83, warrant mention:


[Translation]

According to the Petit Robert de la langue française selection is “the act of choosing the best suited individuals”, while nomination is “the act of naming someone to a job or office”, and that naming someone means “designation, choosing a person of one’s own authority, to fulfill a function or office”. The word “selection” refers to the general concept of choosing or making a choice, while nomination refers to the more precise concept of designating someone to fulfill a function. The use in paragraph 42(1)(b) of the word “selecting” seems to indicate by itself what is contemplated, which is the entire process leading to the appointment of someone to the Senate, but its combination with the word “method” confirms this broad interpretation. Still according to the Petit Robert de la langue française, “method” means “the particular manner by which something is accomplished”, which refers to the manner or the process by which an action is effected.

The English version of the Constitution Act, 1982 confirms this broad interpretation of the expression “mode de selection des sénateurs” [“method of selecting senators”]. According to the Concise Canadian Oxford Dictionary, “selection” means “the act of the instance of selecting”, while “select” means “choose as the best or more suitable”. The English version, however, clarifies particularly well the broad sense of what is encompassed by the expression “method of selection of senators” in light of the definition of the word “method”. Still according to the same dictionary, “method” means “a mode of procedure”, “a defined or systemic way of doing a thing”, “orderliness”, “regular habits”, all of which clearly refers to the process of selection leading to the appointment of someone to the Senate.

BILL C-7 AND THE REGAL OFFICE

[51]         The Regal Office (that of the Queen, the Governor General and the Lieutenant Governor of a province) cannot be amended or abolished without the agreement of Parliament and all of the provinces (section 41 of the Constitution Act, 1982).

[52]         Pursuant to section 24 of the Constitution Act, 1867, the Governor General summons persons to the Senate on behalf of the Queen.

[53]         In fact, however, the constitutional conventions of the day are to the effect that the Governor General’s power can only be exercised on the advice of the Prime Minister of Canada, a practice that was recognized in the minutes of the Privy Council for Canada from July 13, 1896 to October 25, 1935.

[54]         Moreover, as of 1890, the holder of the office of Governor General who was named by the British Prime Minister was associated in the process that preceded a recommendation to the sovereign. This practice continued to evolve to the point that after the imperial conferences of 1926 and 1930, the sovereign only took advice from the Prime Minister of Canada. The Supplementary Letters Patent of 1931 and 1947 would confirm that the Governor General had become a Canadian institution whose occupant could only act on the advice of the Prime Minister.

[55]         In reality, the appointment of senators became the exclusive prerogative of the Prime Minister who was then in office whenever a vacancy occurred. Within this context, since 1867, Prime Ministers have filled almost 95% of Senate appointments with persons who were subsequently aligned with the political party then forming the government (Christopher P. Manfredi, Avis d’expert sur les effets possibles du projet de  loi C-7, May 2013, para. 21), several of whom were former elected members or defeated candidates.

[56]         In the present matter, nothing in Bill C-7 affected the Regal Office or the power of the Governor General to summon persons to the Senate. In fact, the Governor General would have formally continued to name such persons on the recommendation of the Prime Minister.

[57]         With respect to the practices the Prime Minister follows prior to recommending someone for appointment, apart from the limits arising out of the Constitution, including section 42 of the Constitution Act, 1982, they are matters of convention, precedent and the realities of politics. Their amendment requires no recourse to the constitutional amending process contemplated in Part V of the Constitution Act, 1982 (Benoît Pelletier, La modification constitutionnelle au Canada, Scarborough (Ont), Carswell, 1996, p. 104.) Furthermore, the great majority of constitutional law scholars disagree with the view that the relations between the Prime Minister and the Governor General become part of the written constitution (B. Pelletier, supra, p. 100-102; Peter W. Hogg, Constitutional Law of Canada, vol. 1, 5th ed., loose-leaf edition, Toronto, Carswell, 2012, no. 9.3, p. 9-5; Patrick J. Monahan and Byron Shaw, Constitutional Law, 4th ed. Toronto, Irwin Law, 2003, p. 190-191, 208).

[58]         Moreover, to assimilate an amendment of the powers of the Prime Minister with those of the Governor General for the purposes of paragraph 41(a) of the Constitution Act, 1982 would limit Parliament’s powers because of a constitutional convention. Such a limitation does not exist, or at a minimum, does not concern the courts.

[59]         On the contrary, constitutional conventions are not justiciable, contrary to the text of the Constitution, which by its nature is susceptible of evolution, as Hogg, (supra, no. 1.10(e), p. 1-29) affirms:

[T]he conventions allow the law to adapt to changing political realities without the necessity for formal amendment.

[60]         If Parliament were precluded from amending a constitutional convention by the adoption of a statute, this would a fortiori imply that conventions could never be amended by the conduct of political actors. Such reasoning shows that subjecting constitutional conventions to the amending procedure is untenable.

[61]         Finally, since paragraph 42(1)(b) of the Constitution Act, 1982 deals specifically with the method of selection of senators and the means by which the Constitution can be amended in this respect, it cannot be contended that such an amendment requires the unanimity contemplated by paragraph 41(a) concerning the Regal Office. The meaning of these two provisions must be determined in such a manner that they are coherent when read together, which means that an amendment contemplated by paragraph 42(1)(b) cannot at the same time be subject to the process of unanimous consent pursuant to paragraph 41(a) because of the need to interpret the words “the office…of the Governor General” reasonably.

BILL C-7 and PARAGRAPH 42(1)(b)

[62]         As previously mentioned, the parties do not agree on the true meaning of the provisions of Bill C-7 concerning the stages prior to the appointment of someone to the Senate. The Attorney General of Quebec takes the view that the proposed process amounted to an amendment to the method of selecting senators that is governed by paragraph 42(1)(b) of the Constitution Act, 1982. The Attorney General of Canada, on the other hand, contends that Parliament would have been asked to put in place a consultative procedure to assist the Prime Minister before he made a recommendation to the Governor General. In so doing, Parliament would thus have been exercising its legislative power to adopt laws for the peace, order and good government of Canada (section 91 of the Constitution Act, 1867).

[63]         The character of a legislative text may be analysed both in function of its object and effect.

[64]         With respect to the object, a distinction can be drawn between “[i]ntrinsic evidence, such as purpose clauses and the general structure of the statute”, and “[e]xtrinsic evidence, such as Hansard or other accounts of the legislative process”: Reference re Securities Act, [2011] 3 S.C.R. 837, 2011 SCC 66, para. 61.

[65]         In this matter, the title and the first four paragraphs of the Senate Reform Act were revealing as to the government’s objective:

Loi concernant la sélection des sénateurs et modifiant la Loi constitutionnelle de 1867 relativement à la limitation de la durée du mandat des sénateurs

 

An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits

 

Attendu :

 

qu’il est important que les institutions représentatives du Canada, notamment le Sénat, continuent d’évoluer de concert avec les principes d’une démocratie moderne et les attentes des Canadiens;

 

 

 

Whereas it is important that Canada’s representative institutions, including the Senate, continue to evolve in accordance with the principles of modern democracy and the expectations of Canadians;

 

que le gouvernement du Canada s’est engagé à explorer des façons de permettre au Sénat de mieux refléter les valeurs démocratiques canadiennes et de mieux répondre aux besoins des régions du Canada;

 

Whereas the Government of Canada has undertaken to explore means to enable the Senate better to reflect the democratic values of Canadians and respond to the needs of Canada’s regions;

 

qu’en 1987 les premiers ministres du Canada ont convenu, à titre de mesure provisoire jusqu’à ce que la réforme du Sénat soit réalisée, que les sièges vacants au Sénat soient comblés au moyen d’une liste de candidats sénatoriaux présentée par le gouvernement de la province ou du territoire visés;

 

Whereas in 1987 the First Ministers of Canada agreed, as an interim measure until Senate reform is achieved, that any person summoned to fill a vacancy in the Senate is to be chosen from among persons whose names have been submitted by the government of the province or territory to which the vacancy relates;

qu’il est indiqué que les personnes dont la candidature est proposée au Conseil privé de la Reine pour le Canada en vue de leur nomination au Sénat soient choisies par voie d’une élection démocratique par la population de la province ou du territoire qu’elles représenteront;

 

[…]

Whereas it is appropriate that those whose names are submitted to the Queen’s Privy Council for Canada for summons to the Senate be determined by democratic election by the people of the province or territory that a senator is to represent;

 

[…]

[Emphasis added.]

[66]         Those who promoted Bill C-7 placed emphasis on “democratic values” and the fact that the Senate should better reflect them. Even more important was that Bill C-7 stated the clear objective of having names submitted to the Privy Council “for summons to the Senate be determined by democratic election”. The purpose of Bill C-7 was not simply to create a consultative process, but to make the Senate a truly democratic institution.

[67]         The scheme leading to the election of candidates also illustrated the seriousness and importance of the electoral process. Candidates could be associated with provincial political parties (Bill C-7, Schedule, section 3) and could be identified as such on the electoral ballot (Schedule, section 19). Bill C-7 also contained several provisions meant to ensure an equitable process: provincial legislation, which generally includes penal offences, could apply (Schedule, sections 27, 31, 39), candidates could have an electoral agent and the manner in which votes were to be cast was set out (Schedule, section 35). Finally, several provisions regulated the determination of the electoral result, including recounts (Schedule, section 24), the procedure to be followed when there was a tie vote (Schedule, subsection 21(4)), and the legal recourse available when there was a controverted election (Schedule, section 26).

[68]         In short, the legislative framework was much more elaborate than a mere consultative process prior to a recommendation being made to the Governor General. It had all the attributes of a law regulating elections.

[69]         The effect of Bill C-7 suggested a similar result.

[70]         Bill C-7 did not oblige a province to organize senatorial elections. If a province chose to do so, the process contemplated would nevertheless have had to substantially respect the requirements set out in the Schedule to Bill C-7. If a province chose not to do so, that process would be unchanged.

[71]         On the other hand, in provinces that wished to conduct such elections, a true electoral contest might ensue in every respect, conducted as if it were a provincial election. Thereafter, the name of the candidate having obtained the most votes would be transmitted to the Prime Minister.

[72]         It is true that the text of Bill C-7 did not appear to oblige the Prime Minister to recommend to the Governor General only someone who had previously obtained the greatest number of votes at an election held in a province to represent it in the Senate, but only to take account of the result of the election. Nevertheless, it is clear from its text and the extrinsic evidence in the record, in particular the comments of the Prime Minister on the subject and those of other representatives of the government, that considerable if not determinative weight would be given to the electoral result.

[73]         In practice, if the Prime Minister were not to give effect to the electoral result, it is obvious that the whole exercise would have been a sham, and provinces would lose interest in keeping it in place. The same impact would be seen on the participation of provincial political parties, without even considering the effect on potential candidates and electors.

[74]         It is equally obvious that once the Governor General would have named someone, that person could legitimately claim to have obtained the support of the provincial population or the senatorial district in question, as the case may be. As Bill C-7 provided, that person could claim to have been selected “by democratic election by the people of the province…”.

[75]         On the whole, when the real meaning and true character of Bill C-7 is analyzed, it unquestionably constituted an attempt to significantly amend the current method of selecting senators, that is, an appointive process until 75, the age of retirement. Such an amendment could only have been implemented as the result of the federal-provincial consensus paragraph 42(1)(b) of the Constitution Act, 1982 contemplates.

[76]         The agreement of a majority of the provinces based on the 7/50 formula would therefore have been required.

[77]         Moreover, it would have been aberrant to impose Bill C-7 on the provinces when it required the holding of elections conducted in accordance with provincial laws, with independent candidates or those endorsed by provincial political parties, without having discussed it with them and in the absence of a consensus that the 7/50 formula affords them.

[78]         Finally, Bill C-7 would be unconstitutional in that it permitted the amendment of the method of selection of senators as the provinces may choose at the choice of the province concerned, which, in 1982, the framers sought to prevent by specifying in subsection 42(2) of the Constitution Act, 1982 that an amendment adopted relative to a matter contained in subsection 42(1) applies throughout Canada, without any possibility of exclusion. The framers intended that amendments made with respect to the matters mentioned in paragraph 42(1)(b) be uniform and ones of general application.

* * * * *

[79]         Bill C-7 would also have limited the duration of a senator’s term of office to a nine-year non-renewable mandate. This amendment to section 29 of the Constitution Act, 1867 appeared to be based on the proposed scheme of selecting senators that would have been electoral and, according to the sixth paragraph of its preamble, that “the tenure of senators should be consistent with modern democratic principles”. This would appear to be an accessory to the rest of Bill C-7, with the result that its outcome will be the same as for the rest of the Bill under review in this opinion.

[80]         Moreover, it is apparent from paragraph 42(1)(b) of the Constitution Act, 1982 that the framers recognized not only a provincial interest both with respect to the powers of the Senate and the method of selection if its members, but also in their relationship with each other by dealing with them in the same paragraph.

[81]         The framers thus acted on what the Supreme Court held in Reference re the Upper House, supra, when it wrote, at pages 76 & 77:

At present, a senator, when appointed, has tenure until he attains the age of seventy-five. At some point, a reduction of the term of office might impair the functioning of the Senate in providing what Sir John A. Macdonald described as “the sober second thought in legislation”. The Act contemplated a constitution similar in principle to that of the United Kingdom, where members of the House of Lords hold office for life. The imposition of compulsory retirement at age seventy-five did not change the essential character of the Senate. However, to answer this question we need to know what change of tenure is proposed.

[Emphasis added.]

[82]         The Supreme Court thus recognized that the duration of a senatorial mandate was intimately related to the Senate’s powers and functioning, just as would be the method of selecting its members. In reality, an amendment to the duration of that mandate could affect both the powers of the Senate and the method of selecting senators.

[83]         It follows that the provinces have an interest in the replacement of an appointment for life until the age of 75 by a mandate of pre-determined duration. The proposed amendment could not have been governed by section 44 of the Constitution Act, 1982.

[84]         The foregoing extract from the Supreme Court’s reasoning also shows the difficulty inherent in the establishment of an appropriate relationship between powers, on the one hand, and the duration of a mandate, on the other hand. It would be difficulty for courts to trace clear guidelines on which side it could be affirmed unhesitatingly that the Senate’s functioning is unaffected by the method of selecting senators. As well, the transformation from a lifetime mandate to one not exceeding nine years constitutes a significant qualitative change. In such circumstances, it is more logical to conclude that the framers chose to leave the determination of the duration of a senate mandate to political actors rather than to the courts, and that paragraph 42(1)(b) includes the duration of a mandate within the matters of powers and method of selection.

* * * * *

[85]         In conclusion, Bill C-7, if it had been adopted, would have been unconstitutional without the agreement of the majority of the provinces pursuant to subsection 38(1) of the Constitution Act, 1982, since its true nature was to amend the method of selection of senators and the powers of the Senate without having respected the applicable amending procedure. In reality, Bill C-7 attempted to circumvent that procedure.

THE ABSENCE OF OTHER PROTECTED CHARACTERISTICS

[86]         The third question raises the possibility that there are characteristics of the Senate other than those covered by section 42 that could be considered fundamental or essential, which could not be amended except by complying with the general amending procedure set out in section 38 of the Constitution Act, 1982.

[87]         With respect for those who hold this view, the Court is of the opinion that in 1982 the framers decided that the Senate’s only characteristics as an existing institution requiring the agreement of the provinces before being amended were those set out in subsection 42(1) of the Constitution Act, 1982: its powers and the method of selecting its members (paragraph 42(1)(b); the number of senators per province and their residence requirements (paragraph 42(1)(c).

[88]         It would be an incoherent interpretation of Part V of the Constitution Act, 1982 to consider that there are other essential characteristics of the Senate as an existing institution that are implicitly protected by section 38.

ANSWERS TO THE REFERENCE QUESTIONS

[89]         The Court’s answers to the Reference questions are as follows:

Question 1: No

Question 2: Yes

Question 3: No


[1]     In 1867, not only was Parliament bicameral, but so too were the legislatures of Quebec, Nova Scotia and New Brunswick. Such was also the case with the colony of Prince Edward Island, as it would be when the province of Manitoba was created. The provincial upper houses were all abolished due to their redundancy and the costs they generated (David Smith, “The Senate of Canada and the Conundrum of Reform” in Jennifer Smith (Dir.) The Democratic Dilemma – Reforming the Canadian Senate, Montreal, McGill-Queen’s University Press, 2009, p. 11, at p. 13.).

[2]     An Act Respecting the Legislative Council, Revised Statutes of Canada, 1859 (22 Vict.), c. 1, s. 1.

[3]     When Prince Edward Island joined Confederation in 1873, four of these seats were allocated to the new province.

[4]     With the addition of British Columbia in 1871, and the creation of Manitoba in 1870, Alberta and Saskatchewan in 1905, a fourth region was created, which also was allocated 24 senators. Six senators were added when Newfoundland joined Canada, as were one for each of the federal territories. In total, there are 105 senate seats.

[5]     See: Andrew Heard, “Assessing Senate Reform Through Bill C-19: The Effects of Limited Terms for Senators” in Jennifer Smith (Dir.) The Democratic Dilemma – Reforming the Canadian Senate, Montreal, McGill-Queen’s University Press, 2009, p. 117.

[6]     See Robert L. Watts, “Federal Second Chambers Compared”, in Jennifer Smith (Dir.), The Democratic Dilemma – Reforming the Canadian Senate, Montreal, McGill-Queens University Press, 2009, p. 35.

[7]     Meaning the Constitution Act, 1867.

[8]     Thus, without including the population of the territories.

[9]     Following the 1995 provincial referendum, Parliament precluded the government from proposing a constitutional amendment based on the 7/50 formula without the agreement of the National Assembly: An Act respecting constitutional amendments, S.C. 1996, c. 1.

[10]    Excluding the Regal Office.

[11]    Jacques-Yvan Morin and José Woehrling, Les constitutions du Canada et du Québec: du regime français à nos jours, Tome 1 “Études”, Montreal, Éditions Thémis, 1994, p.516.

[12]    To the same effect, in Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31, at p. 36, interdelegation was disapproved, as it would permit Parliament and the provincial legislatures to indirectly amend the division of powers without having amended the constitution. In Ladore v. Bennett, [1939] A.C. 468 (P.C.), at p. 474, the Privy Council held that a level of government “cannot do indirectly what it cannot do directly”.

[13]    See sections 24, 26 and 32 of the Constitution Act, 1867; Reference re the Upper House, supra, p. 77.

Text courtesy Quebec Court of Appeal and http://soquij.qc.ca/fr/a-propos

English Text Doc Available HERE

Advertisements

Please Drop a Note or Comment, Thank you.

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s