APPENDIX

Bill S-4, An Act to amend the
Constitution Act, 1867 (Senate tenure)

Observations to the Report of the
Standing Senate Committee on
Legal and Constitutional Affairs

 Introduction

 

“Suppose you appoint them for nine years, what will be the effect? For the last three or four years of their term they would be anticipating its expiry, and anxiously looking to the administration of the day for reappointment; and the consequence would be that a third of the members would be under the influence of the executive.” 

 --- George Brown, 1865[1]

 

George Brown, a member of John A. Macdonald and George-Étienne Cartier’s coalition government for the then province of Canada, went on to describe in his speech how their aim was to fashion an Upper House which would be “a thoroughly independent body – one that would be in the best position to canvass dispassionately the measures of this house and stand up for the public interest in opposition to hasty or partisan legislation.”

 

It is clear from the Confederation Debates that the framers of Canada’s Constitution did consider the option of a nine year renewable term for appointed senators but concluded that it would threaten the independence of the Upper Chamber from the executive – in other words, from the Prime Minister and his cabinet. Consequently, the Fathers of Confederation rejected a fixed renewable term and chose instead, for both the Senate and Canada’s new Supreme Court, appointment for life. In the early 1960’s, the term for the members of both institutions was changed to appointment until the age of 75.

 

Bill S-4, while brief in length, proposes a major change to the current practice at least in so far as the Senate is concerned. New senators would be appointed on the recommendation of the Prime Minister to eight year renewable terms, with no mandatory retirement at the age of 75. Two closely interrelated questions immediately came to mind. Would essential features of our parliamentary democracy, as constructed at the time of Confederation, be affected, and is this a change to our Constitution which can legally be made by the federal Government acting alone through Parliament without the involvement of the provinces?

 

The place of the Senate within the governing framework of Canada was arguably the most important and contentious issue faced by the framers of our Constitution. Though there were some, particularly those from the most populous region, Upper Canada (Ontario), who would have preferred a unicameral parliament, a second chamber was critical for those from the less populous regions. As George Brown described it: “Our Lower Canada (Quebec) friends have agreed to give us representation by population in the lower house, on the express condition that they shall have equality in the upper house. On no other condition could we have advanced a step.”[2]  Alexander Mackenzie, who went on to serve as our second Prime Minister, observed: “The most important question that arises relates to the constitution of the upper house.”[3]

 

            In addition to the equality of representation from the three regions of the country (Maritimes, Quebec, Ontario), there was also a debate about whether senators should be appointed or elected, with the view of John A. Macdonald finally prevailing: “There is, I repeat, a greater danger of an irreconcilable difference of opinion between the two branches of the legislature, if the upper be elective, than if it holds its commission from the Crown.”[4]

 

In the end, the compromise reached called for a Senate with equal representation from the three regions, made up of members who were appointed for life terms by the executive. That this was a compromise designed to achieve unanimity among the participants was underscored by Alexander Mackenzie, who said: “While it is my opinion that we would be better without an upper house, I know the question is not, at the present moment, what is the best possible form of government, according to our particular opinions, but what is the best that can be framed for a community holding different views on the subject.”[5]

 

            To follow Alexander Mackenzie’s line of thought, the two key questions at the present moment for the members of this Committee are whether the measures contained in Bill S-4 bring us closer to the “best possible form of government” and whether there is a constitutional obligation for the federal government to take into account the views of those in our federal community, namely the provinces, who may hold a different opinion about what is proposed? These are the questions which informed the work of this Committee.

 

            Bill S-4 arises out of the June 2006 election promise of the Conservative Party to “begin reform of the Senate by creating a national process for choosing elected senators from each province and territory”.

 

The new Conservative Government began that reform by introducing Bill S-4 on May 30, 2006, choosing to deal with the issue of tenure of new senators before advancing  changes to their method of selection.

 

The subject matter of the bill was referred to a Special Senate Committee on June 28, 2006, which recommended in principle defined term limits for new senators and concluded that “there appears to be no need for additional clarity on the constitutionality of Bill S-4…”.  However, following the presentation of the Committee’s Report, the Government introduced, on December 13, 2006, Bill C-43, the Senate Appointment Consultation Act.  This new development in the federal Government’s Senate reform initiative led some senators, as well as a number of constitutional scholars and provincial authorities, to reconsider their earlier analysis of Bill S-4, particularly as concerned its constitutionality.   Consequently, this Committee, building on the work of the Special Committee, has given closer attention to the evolving constitutional issues, and the principles defined in the ruling of the Supreme Court in 1979, known as the Upper House Reference.

 

I.       8-Year Term Appointments

 

The core of Bill S-4 is the proposal to provide fixed eight-year terms for new senators. In 1979, the Supreme Court of Canada was asked whether it was within the legislative authority of Parliament to enact legislation changing the tenure of members of the Senate.  The Court said:

 

“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 [1867 Constitution] 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.”[6]  (emphasis added)

 

It would appear from this statement that some Senate tenure terms would be constitutional – but others would not.  None of the witnesses who testified before the Committee was able to state where the dividing line is to be found. Even the Government’s legal counsel, Warren Newman, General Counsel, Constitutional and Administrative Law Section of Justice Canada, acknowledged that certain changes, such as a reduction to one year, would not pass constitutional muster, thereby acknowledging on behalf of the Government that its ability to make changes to Senate tenure under section 44 is not absolute.  But no one could identify the critical dividing line.

 

Henry S. Brown, a constitutional lawyer with Gowling Lafleur Henderson, provided the Committee with a lengthy written opinion and also testified in person.  He pointed out that in the Upper House Reference, the Supreme Court said that Parliament is not permitted unilaterally (i.e. without the involvement of the provinces) to make alterations which would “affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional representation and provincial representation in the federal legislative process”.[7]  

 

A second test that must be met is whether the proposed reduction in 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’.” [8]

 

Mr. Brown emphasized that:

 

 “the Supreme Court specifically referred to the independence of the Senate as forming part of its fundamental features.  The Court said that the ‘intention was to make the Senate a thoroughly’ – and I emphasize the word ‘thoroughly’ – ‘independent body which would canvass dispassionately the measures of the House of Commons’ and that this was ‘accomplished by providing for the appointment of members of the Senate with tenure for life.’”[9]

 

There are therefore three critical characteristics that must be maintained in any proposed change of tenure: (1) the Senate’s thorough independence; (2) the Senate’s capacity to provide sober second thought; and (3) the Senate’s role as a means of provincial and regional representation.

 

Witnesses raised a number of concerns about the proposed 8-year term that related to these constitutional issues, including the fact that the term would allow a two-term Prime Minister to appoint every single senator in the Chamber.  This would profoundly undermine the Senate’s ability to fulfil its role as “a thoroughly independent body” of sober second thought.  Virtually every expert who testified before us agreed that this is a significant problem.

 

Indeed, the Premier of New Brunswick, Shawn Graham, wrote on April 20, 2007 to say:

 

“An additional concern of the Government of New Brunswick regarding Bill S-4 in its current form is the ability of any Federal Government in power for at least two full mandates to completely replenish the ranks of the Senate using an as yet undefined process.  This follows directly from the proposed reduction in the tenure of Senators to only 8 years.  Again here, this can only lead to a dilution of the independence of regional representation in the Senate.  For a Province like New Brunswick, it is difficult to conceive how such a proposal could be favourable to its interests.”[10] 

 

As noted above, under the Upper House Reference an alteration which would “affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional representation and provincial representation in the federal legislative process” is beyond the jurisdiction of Parliament acting unilaterally to enact.  Premier Graham certainly believes this to be such an alteration.

 

Other important issues were also raised questioning the merits of the proposed 8-year terms.  Several witnesses spoke of the value in having Senators who, by virtue of their long careers in the Senate, have acquired expertise in particular subject areas as well as in the procedural rules of the Senate – the so-called “Deans” of the Senate.  There was concern that the long-term perspective now applied in the Senate would be impaired or lost. 

 

A witness raised the issue that the proposed term would reduce the stability of the Senate, noting that “the present tenure virtually ensures that the Senate will exercise a powerful potential oversight and curtailment function for several years after the governing party is replaced in the House of Commons....This may result in a significant change in the Senate’s overview function, and will certainly mean that the resulting Senate is no longer ‘thoroughly independent’ as required by the Supreme Court of Canada in Re Upper House.”[11]

 

We were also impressed by the thoughtful comments from those who have closely studied the British House of Lords.  Reform of that House has been the subject of extensive thought, study and debate for a decade.  The proposal now under consideration is that peers should sit for 15 years, the equivalent of three electoral cycles of the European Parliament, with one-third being replaced every five years.  This 15-year term would not be renewable.

 

Gerard Horgan, a Canadian political scientist currently teaching at the International Study Centre for Queen’s University in the United Kingdom, described the findings of the Royal Commission on Reform of the House of Lords (the “Wakeham Commission”) which reported in 2000, as follows:

“The Commission's aspirations for the membership of the House of Lords in many instances paralleled those expressed for the Canadian Senate.  For instance, the Commission took the view that long tenure would, ‘encourage members to be independent minded and take a long‑term view, discourage the politically ambitious from seeking a place in the second chamber, contribute to a less partisan style of debate, and allow members time to absorb the distinctive ethos of the second chamber and to learn how to contribute most effectively to its proceedings.’

 

Given those aspirations and having taken into account the possible disadvantages of long tenure, the Commission concluded that members should serve for the equivalent of three electoral cycles, a term of 12 to 15 years.  In addition, the Commission noted that it did consider a term based on two electoral cycles but that it ‘concluded that terms of this length would be too short for the purposes of creating the kind of second chamber which we envisage.’

.....

In summary, then, first, the principled argument for at minimum a three‑to‑one ratio of Lords to Commons terms was made by the Wakeham Commission.  Second, although the last word on Lords reform is a long way from being written, the force of the argument for a term of significant length for the U.K. upper chamber has been sufficient to gain government support for a 15‑year term.  Third, given the possibility of selecting only a portion of provincial senatorial contingents at each consultative election, one of the possible objections to a significant term for senators is obviated.

 

To close, I would just say that what I have hoped to do with my submissions and remarks is to provide honourable senators with evidence that there are reasoned arguments in favour of significantly longer terms for upper chambers.  However, and I say this not out of a motivation to flatter but because I believe it is true, on these issues, you, senators, are the true experts.  If I as a researcher wanted to know how long it takes a new member to understand the ethos of the Senate, I would come and ask you.  In the case of this legislation, it is as important that you look to your own experience as it is that you hear from people like me.” [12]

 

Dr. Meg Russell of University College London similarly urged consideration of longer terms: 

 

“In terms of maintaining the ethos of the independence and much of what people value about the House of Lords, many people have argued that long term lengths are important.  As Professor Horgan has said, the royal commission recommended 15 years.  The government has also recently recommended 15 years.” [13]

 

Lord Howe, a Conservative member of the House of Lords, testified that in his opinion, “15 years should be a minimum length of tenure.” [14]

 

We agree.  Our amendment to Bill S-4 changes the proposed 8-year term, which we believe would not meet the Supreme Court’s test for constitutionality, to a 15-year term, which we believe would be more likely to meet the constitutional test. 

 

II.     Non-Renewable Appointments

 

The proposal in Bill S-4 that the new term appointments for Senators should be open to renewal by the Prime Minister of the day was a source of much concern for many witnesses.  The Bill itself is silent on the question of renewability.  However, the Right Honourable Stephen Harper told the Special Senate Committee on Senate Reform that, “By its silence, you can presume that there would be the possibility of renewal.”[15]

 

Both the Leader of the Government in the Senate, when she spoke to Bill S-4 in the Senate Chamber, and Prime Minister Harper, when he appeared before the Special Senate Committee on Senate Committee, were clear that the decision to permit renewal of the Senate appointments was designed with a view to senators being elected.  However, to date, the Government has not proposed a constitutional amendment for an elected Senate. Bill S-4 does not address this in any way.

 

The overriding issue for many witnesses was the impact of renewability on the independence of a new Senator.  Prime Minister Harper dismissed these concerns, saying:

 

“In my assessment of whether senators would alter their behaviour in light of a renewable term, I tend to dismiss that.  In my experience, whether members of either House are willing to work with the government is determined first and foremost by their party affiliation.  That is not likely to change whether the terms are renewable or otherwise.  That is my take on human nature as it pertains to the legislative process.”[16] 

 

Although this may be an accurate description of what takes place in the House of Commons, the situation in the Senate is somewhat more nuanced.  In fact, there is a strong tradition in the Senate of independent voting.  This is borne out by statistics.  Professor Andrew Heard of Simon Fraser University told our Committee that he conducted a study of voting patterns in the Senate in the period 2001 to 2005.  He testified:

 

“There is a perception, at least, that, over time, senators have more freedom of personal action than individual MPs do.  There has been little statistical or empirical work on this, so I did a study that covered the period of 2001 to 2005....  I looked at 125 formal divisions involving 122 members of the Senate and 7,700 votes.  This is only a fraction of the votes, because, as you realize, many votes are settled on a voice vote, and those include a formal recorded vision but no idea of who was in fact dissenting from the vote.  I took the record of votes where individual senators are recorded abstaining, voting for or against a bill, and I wanted to see how often they vote against their caucus position and how often they abstain.  It was quite clear that there is a wide practice of independence among senators in a relative sense, certainly relative to the House of Commons.” [17]  (emphasis added)

 

Professor Heard was adamant that permitting terms to be renewed would seriously impact the independence of senators:

 

“I do have a serious concern about the possibility of renewal terms.  The possibility of a prime minister deciding which of the senators deserve to be reappointed to a new term seriously raises questions about the potential voting patterns of senators who wish to be reappointed.  In this respect, I believe that renewable terms would have the potential to seriously impact the independence of senators voting.” [18] 

 

Other witnesses agreed.  Professor Jennifer Smith, Chair of the Department of Political Science at Dalhousie University, testified that a renewable term diminishes the independence of the appointee and thus affects the Senate’s function as the chamber of sober second thought.  In her considered opinion, it also engages the Senate’s function of federal representation, because the appointee’s independence is compromised by the prospect of the renewable appointment.  As such, it affects the character of the Senate as established at Confederation.

 

Professor David Smith of the Saskatchewan Institute of Public Policy expressed similar views:

 

“A provision for renewable appointment would make a senator who desired renewal susceptible to influence from the Prime Minister, who would continue to make the nominations to the Governor General.  Ambition and a view to future opportunities would assume far greater significance than they have today in the calculations that members of the upper house bring to their work.  That comment is not intended as a criticism of such behaviour but as a statement of political life that would now apply to the Senate.” [19] 

 

However, it must be pointed out that while there was a clear consensus among the witnesses who appeared that renewability would undermine the independence of the Senate, there were views expressed that raised concerns with non-renewability when combined with a relatively short fixed term.  Professor Smith, for example, told the Committee:

 

“A provision for non‑renewable appointment for a fixed term would result in a chamber characterized by continual turnover.  The features now cited as the Senate's strengths of experience, knowledge and perspective would disappear.  More than that, rather than Senate membership coming at the end of an individual's career, it could come at its inexperienced beginning.  For example, a person in their thirties appointed to the Senate for eight years would be in a position to seek a seat in the House of Commons by the time she or he was 40.  If that were the case, Senate tenure might be seen as easily as prefatory to a period in the Commons as it is now seen to follow time in the lower house or in another occupation.  In other words, the relationship between the two chambers would be reversed and the independence that now attaches to senators, whose political ambitions are at an end, would be compromised.” [20] 

 

The Committee recognizes as well that there are dual militating objectives.  So long as Senators continue to be appointed, then allowing for reappointments could significantly undermine a senator’s independence, striking at the very core of the constitutional role and responsibility of the Chamber in which they would serve.  If, however, there is at some point a change to elect Senators, then a prohibition against a second (or third) term could undermine the accountability that is at the core of elections. 

We also received strong representations on the issue of renewability from the Premier of New Brunswick, who noted that a renewable term

 

“...would allow the Prime Minister to improve the accountability of Senators through the suggested advisory electoral process, assuming that the federal Government proceeded with such a change.  It is through elections that the population can truly express their approval with the work done by their Senate representatives.  If the Senators could hold office for one term only, then elections would not improve their accountability.  In the Government of New Brunswick’s opinion, this is one feature of the proposal that is likely to reduce the effectiveness of the Senate as a representative institution.  There is also the likelihood that reappointment would increase party line loyalties.  A Senator will invariably have to vote according to the values and position of the Federal Government in power if s/he wishes a reappointment.  This can only lead to an increased pressure on the Senators to abandon the interests of their regions in favour of adherence to the agenda of the government in the House of Commons.  This would effectively compromise the ability of the Senate to act as a “Chamber of sober second thought”.

 

It should also be noted that the apparent ability of the Federal Government to reappoint Senators, if Bill S-4 becomes law, when combined with the apparent removal of the current age limit of 75, means that such individuals could remain in office longer than what is currently allowed under s. 29 of the Constitution Act, 1867.” [21]

 

The Premier of Newfoundland and Labrador recently wrote to Prime Minister Harper, with a copy to your Committee’s chair, to express his Government’s concerns with Bill S-4.  He said the bill’s “potential for re-appointment would have a limiting effect on the independence of Senators, leaving future appointees beholden to the Prime Minister, and under pressure to curry favour with the Prime Minister so as to enhance the likelihood of re-appointment.  This Bill, if enacted, would therefore diminish the independence of the Senate, its ability to act as a “chamber of sober second thought”, and its effectiveness in providing representation for regional and provincial interests.”[22]

 

In Britain, the proposals are clearly for one non-renewable 15-year term in the House of Lords.  Lord Tyler, Liberal Democrat member of the House of Lords, told us:

 

“Most important of all, if we are to have the degree of independence from party control in future, whether it is from an elected base or from some form of nomination from the parties, we want people, once they come into the second chamber, whether we call it the Senate or whatever, to feel as free from party emphasis, party influence, party pressure as they can be.” [23]

 

We agree with the many witnesses and other representations which raised concern that the prospect of reappointment could significantly undermine the independence of Senators, and therefore the Senate as a whole.  Few would argue that the independence of the Supreme Court of Canada would not be affected if the current tenure of its members – namely, appointment to the age of 75 – were altered to provide for 8-year terms, renewable at the sole discretion of the sitting Prime Minister (whose legislation and policy initiatives often come before the Court).  The independence of Parliament’s second Chamber is no less important to our system of government.   Accordingly, we have amended Bill S-4 to provide expressly that the 15-year term appointment for new Senators may not be renewed.

III. 75-Year Age Limit

 

The Constitution Act, 1867 originally provided for Senators to be appointed for life.  This was considered the best guarantee of independence from the Government, similar to that afforded members of the judiciary.  This provision was amended in 1965, to provide for tenure up to the age of 75.  This amendment followed a similar change of tenure for members of Canada’s judiciary.

 

Bill S-4 would remove that upper age limit, thus allowing Senators to be appointed and remain in office for their appointed 8-year term, even if that term takes the individual beyond the age of 75.  For example, the Prime Minister could choose to appoint someone at the age of 73, and have that person serve the 8-year term, even though they would be in the Senate until the age of 81.  As proposed, a Prime Minister could appoint a new Senator at the age of 75, 80 or even older, because there would no longer be any upper age limit.  (The Bill, however, leaves intact the constitutional requirement that a Senator be at least 30 years old.)

 

Although not many witnesses who appeared before us addressed this issue, those who did were almost uniformly opposed to the proposal.  For example, Professor Andrew Heard noted that since 1965 (when the 75-year retirement age was established), almost 23 per cent of senators have died before their end of term.  He then continued:

 

“There is a larger consideration about how the chamber has to cope with this reality of people at an advanced age.  It is not just the fact that people die at a much more frequent rate than MPs.  In the same period, only 3 per cent of MPs have died, compared to 23 per cent of senators.  It also has an impact on the Senate's work because of a number of senators being ill, having to take extended time off or perhaps not work as full hours as they would otherwise.  Doing away with mandatory retirement would run the risk of further impacting the work of the Senate with these age‑related issues.  I see little reason to proceed with it, and I am concerned about the consequences of abolishing mandatory retirement.”[24]

 

Other witnesses also recommended keeping the mandatory retirement age of 75, arguing it encourages a greater diversity of viewpoints in the Senate.

 

Your Committee was also struck by the contrast between the proposal in Bill S-4 and current efforts in progress now in the United Kingdom to reform the House of Lords.  We held two hearings by teleconference from London, one with academics closely familiar with the House of Lords, and the second with three members of that House.  Dr. Meg Russell, a close observer of the House of Lords both as an academic (now at University College London) and a consultant to the British Government and the Royal Commission on House of Lords reform in 1999, told our Committee:

 

“We are in a rather different position from you.  Obviously, you have already moved away from life tenure and toward retirement age 75.  We have not got that far.  For us, any move to less than life is quite a significant one.” [25]

 

The Lords who testified spoke strongly in favour of a retirement age.  Lord Howe of Aberavon, a Conservative, said, “We [the House of Lords] might need to set a retirement age because otherwise we have a predominantly elderly house.  I am sure we need a kind of retirement system.”[26]

 

Baroness Deech, a Crossbencher (independent member), said:

 

“It is more important to have a retirement age than to have a particular length of tenure. Whatever the length of tenure is, it should be such that you are not tempted to use your periods in the upper house as a springboard to a lucrative position in business or as prelude to being elected to the lower house.  In other words, it should be a period of time toward the end of a career, without people being too old.  To have a retirement age of 75 or something like that is a good idea ‑‑ perhaps an age comparable to that of judges.  If judges stay wise until the age of 70 or 75, then I think senators can do so as well.” [27]

 

Canadian judges are required to retire at the age of 75.  Most Canadians retire from their work at the age of 65.  In view of Professor Heard’s statistical analysis, removing the current age limit could effectively return the Senate to a Chamber to which members are appointed for life.

 

We believe that it would be a step backward for the Senate to remove the provision requiring retirement at age 75.  This may become appropriate if the Constitution is amended to provide for elected members of the Senate.  However, no such proposal has been put forward by the current Government. 

 

Removal of the 75-year age limit would likely have an effect on the nature and quality of the work of this Chamber, and undoubtedly also on the attitude of Canadians toward this Chamber. If, as we were told by the Government, a goal of this Bill is to ensure that the Senate experiences a renewal of ideas and perspectives, we are not convinced that removing the 75-year mandatory retirement is the optimal path to that goal. We refrain from speculating on the reason for this Government proposing this change while leaving the minimum age of 30 unchanged.  There is no minimum age for the House of Commons. 

 

We believe the amendment in 1965, that required Senators, like judges, to retire at the age of 75, was an appropriate improvement for the work and contribution of the Senate as a whole.  We have heard no testimony that provides a convincing reason why this now should be revoked, but we have heard compelling testimony that the limitation should remain.  Accordingly, we have amended Bill S-4 to maintain the constitutional provision requiring retirement of Senators at the age of 75.

 

IV. Concerns as to the Constitutionality of Bill S-4

 

During Second Reading debate of Bill S-4, the major concern of many senators was whether Parliament has the authority to adopt this constitutional amendment unilaterally pursuant to section 44 of the Constitution Act, 1982.  This issue was considered by the Special Senate Committee on Senate Reform, which conducted a subject matter study of Bill S-4 as one part of its review of Senate Reform issues.  Although that Committee concluded that changes to tenure could be accomplished through a reliance on section 44, a number of critical questions remained unresolved for many senators concerning the constitutionality of the Bill. This was the major reason for referring the Bill to the Standing Committee on Legal and Constitutional Affairs for further examination.  The constitutionality of Bill S-4 was therefore a primary focus of our hearings.  We sought to determine whether Parliament has the authority on its own to adopt the constitutional amendment set out in Bill S-4, or whether under the Constitution, this amendment in fact requires the agreement of the provinces.

 

Amending Formulae

 

The Constitution Act, 1982 sets out four procedures whereby constitutional amendments may be adopted.  The general procedure for amending the Constitution of Canada is set out in section 38.  It permits amendments where authorized by each of the Senate and House of Commons, and by the legislative assemblies of at least 2/3 of the provinces that have at least 50 per cent of the population of all the provinces (the so-called 7/50 amending formula).  Sections 41, 43 and 44 then set out three other amending procedures, for particular constitutional amendments.  Section 41 enumerates certain amendments that require unanimous agreement among the Senate, House of Commons and the legislative assemblies of all the provinces.  Section 43 relates to amendments that apply to one or more, but not all the provinces.  

 

The position of the Government is that Bill S-4 may properly be passed under section 44.  That section states in full:

 

s. 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.

 

As described above, section 41 refers to certain amendments which require unanimity, while section 42 deals with amendments which can only be made under the 7/50 amending formula set out in section 38.

 

Section 42(1) of the Constitution Act, 1982, reads as follows:

 

s. 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):

 

(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.

 

Historical Background

 

Until 1982, the primary constitutional document was the British North America Act of 1867, now referred to as the Constitution Act, 1867.  When it was enacted in 1867 by the British Parliament (interestingly, passed first by the British House of Lords and subsequently by the British House of Commons), there was no thought of providing a method of amending it other than through a subsequent Act of the United Kingdom Parliament.[28] As a result, there were a number of instances when the British Parliament was asked to adopt what one scholar described as “rather technical bills”, such as the Canadian Speaker (Appointment of Deputy) Act, 1895, which clarified the power of the Canadian Parliament to provide for a deputy speaker in the Senate.  As the scholar observed, “This was not a satisfactory arrangement.”[29]

 

In 1949, the British North America Act was amended to permit the Parliament of Canada on its own to make certain amendments to the Constitution.  The relevant provision was s. 91(1).  It provided, in relevant part:

 

s. 91. ..., it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated, that is to say,

 

(1)  The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, or to any class of persons with respect to schools or as regards the use of the English or the French language or as regards the requirements that there shall be a session of the Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House: provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such House.

 

Before this section was repealed in 1982 and replaced by section 44, quoted above, section 91(1) was used five times.  Notably for present purposes, it was used in 1965 to amend the provision that then gave Senators tenure for life by imposing compulsory retirement at age 75.  The Supreme Court characterized all five of the amendments under s. 91(1) as “federal ‘housekeeping’ matters”.[30]

 

The Upper House Reference[31]

 

In 1978, the Canadian Government, led by the Right Honourable Pierre Trudeau, referred a series of questions to the Supreme Court of Canada to determine whether the federal Parliament could pass legislation under s. 91(1) to abolish or to effect certain reforms to the Senate.  One of the questions asked whether it was within the legislative authority of the Parliament to enact legislation “to change the tenure of members of [the Senate]”.

 

In its December 21, 1979 opinion, known as the Upper House Reference, the Court devoted considerable attention to the historical background that led to the creation of the Senate, quoting at length from the Confederation debates that detailed the purpose of the Senate, including the need to protect sectional [now referred to as regional] and provincial interests.  The Court noted the role of the Senate in providing, as Sir John A. Macdonald had characterized it, “the sober second thought in legislation.”  The Court said, “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.”[32] 

 

The Court rejected the suggestion that section 91(1) could be used to abolish the Senate, and summed up its response to the various specific Senate reform questions as follows:

 

“...[I]t is our opinion that while s. 91(1) would permit some changes to be made by Parliament in respect of the Senate as now constituted, it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process.  The character of the Senate was determined by the British Parliament in response to the proposals submitted by the three provinces in order to meet the requirement of the proposed federal system.  It was that Senate, created by the Act, to which a legislative role was given by s. 91.  In our opinion, its fundamental character cannot be altered by unilateral action by the Parliament of Canada and s. 91(1) does not give that power.”[33] (emphasis added)

 

On the particular question whether Parliament could act unilaterally under s. 91(1) to change the tenure of members of the Senate, the Court said:

 

“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.”[34]  (emphasis added)

 

Discussion

 

The Upper House Reference was decided in 1979; the Constitution was patriated in 1982, at which time s. 91(1) was repealed and the amending formulae consisting of sections 38, 41, 43 and 44 were enacted.  One of the questions before us was whether the Upper House Reference continues to apply as good law, or whether it was superseded by the passage of the Constitution Act, 1982.  Put another way, was section 44 intended to give Parliament new powers, or was it intended to substantially reproduce the former subsection 91(1)?

 

 The current Government put forward Bill S-4 arguing that those alterations which, using the language of the Supreme Court, “ would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process,” and therefore require provincial consent, have all been codified in section 42 of the Constitution Act, 1982.  In other words, if a proposed change to the Senate is not enumerated in section 42, then it may be effected by Parliament acting unilaterally under section 44.   This position was stated on behalf of the Government to our Committee by Matthew King, Assistant Secretary to the Cabinet, Legislation and House Planning, Privy Council Office:

 

“It is the government’s position that the chosen approach, namely, to amend section 29 of the Constitution Act, 1867, using section 44 of the Constitution Act, 1982, is entirely constitutional.

 

The government’s view is based on its opinion that the elements of Senate reform that require the use of the general amending formula, the so-called 7/50 amending formula are clearly set out in section 42 of the 1982 Act, those being section 42(b), the powers of the Senate and the method of selecting senators, and section 42(c), the number of members by which a province is entitled to be represented in the Senate and the residency qualification of senators.

 

As tenure is not one of the elements specified in section 42, it is the Government’s position that Parliament has the power to enact Bill S-4 through the use of section 44.”[35]

 

This position is buttressed by the preamble to Bill S-4, which uses the language of the Upper House Reference, saying:

 

WHEREAS Parliament wishes to maintain the essential characteristics of the Senate within Canada’s parliamentary democracy as a chamber of independent, sober second thought.

 

However, as Joseph Magnet, a constitutional law professor at the University of Ottawa,  told us very clearly:

 

“To some extent, the "whereas" clauses provide some insight as to the purpose.  The "whereas" clauses refer to the democratic principle.  They also try to provide some supports – may I say, perhaps a little self‑servingly – to try to bring the Bill S‑4 amendment into the understood permissible limits of the old section 91(1). In other words, the "whereas" clauses say that a purpose is to preserve the essential characteristics of the Senate as a chamber of sober second thought.  The "whereas" clauses say that specifically.  It is an interesting and helpful statement but it is not overriding.”[36] 

 

The overwhelming weight of testimony that our Committee heard supported the proposition that the Upper House Reference continues as good law, and that section 44 does not provide Parliament with any greater amending powers than existed under the former subsection 91(1).  For example, Professor Magnet told the Committee:

 

“The whole idea of the patriation bill was to leave things as they were, except to patriate the Constitution and the Charter of Rights and Freedoms with an amending formula.  The patriation bill was specifically justified as not increasing the powers of Parliament.  Section 31 of the Constitution Act, 1982, makes this intention plain.  It says, "nothing in this charter extends the legislative powers of Parliament."  That intent carries by design to section 44, in which, although not in the Charter, the marginal notes make clear that nothing changes.

 

The upshot of this is that section 44 is no larger in scope than the old section 91(1).  Section 44, in my respectful opinion, cannot support legislation that would change the fundamental features or the essential character of the Senate.  Contrary to some of the opinions senators have heard, it is my advice that if a court sees in Bill S‑4 the first step in changing these fundamental features, section 44 will not necessarily support it.  Section 44 does not give Parliament increased powers to change the essential characteristics of the Senate except for the four matters mentioned in section 42(b) and (c).”[37]

 

Other constitutional experts testified to the same conclusion, including constitutional law Professor John McEvoy of the University of New Brunswick, who supported his position with excerpts from the historical record of deliberations at the time of consideration of the Constitution Act, 1982.  He told us of a motion that was introduced in 1981 by the Honourable Jake Epp to specifically exclude the Senate from the unilateral federal amending power (the section that would become section 44) altogether.  Explaining his purpose, Mr. Epp stated:

 

“This amendment would assure that the role and scope of the Senate could not be changed simply through the House or a federal initiative.”

 

Professor McEvoy told us that Mr. Epp withdrew this amendment only after he was assured by the Minister of Justice that this amendment was unnecessary, as the federal amending power was limited in scope, applying only to internal issues such as a change in quorum in the Senate.  He said:

 

“The significance of this historical record is that the stated intention at the time of consideration of what became the Constitution Act, 1982 – at least as expressed before the 1981 Special Joint Committee on the Constitution, co-chaired by Senator Joyal – was to maintain the status quo.”[38]

 

Professor Andrew Heard pointed out a critical problem with the current Government’s reasoning that if something is not specifically enumerated in sections 41 or 42, then it may be amended unilaterally by Parliament under section 44.  Professor Heard had testified before the Special Committee on Senate Reform. That Committee stated in its report that Professor Heard believed that section 44 permits Parliament to act alone in reducing Senate tenure.  When he appeared before our Committee, however, Professor Heard told us that he had reconsidered, and changed his opinion since testifying previously.  He presented a powerful argument. 

 

Professor Heard pointed out that section 42 cannot be an exhaustive list of those items that cannot be unilaterally changed by Parliament, as a number of critical items are absent. For example, the old section 91(1) explicitly provided that the federal amending power could not be used to change the requirement that there must be an election at least every five years.  That is not listed anywhere in the amending powers of the 1982 Constitution.  Similarly, the right to vote in a federal election is not addressed in any of the amending formulae.  Both matters arguably are amendments “in relation to the... House of Commons” that are not specifically listed in section 41 or 42 as requiring provincial consent.  Yet it would be absurd to argue that Parliament has the right to pass an amendment that would give it the right to stay in power for 10, 20 or 30 years without a general election, or to limit the right to vote, for example to the majority party’s supporters.  As Professor Heard said:

“If one took the argument that section 44 literally only has the exceptions applied in sections 41 and 42, then Parliament could do away with the five‑year limit.  It could, in theory, perhaps, do away with the right to vote and being candidates.  No Supreme Court will accept that and that is precisely my point:  They will read further context into the limits that are imposed in that literal reading of section 44.”[39]  (emphasis added)

 

Henry Brown, Q.C., of the law firm Gowling, Lafleur Henderson, and constitutional law Professor Errol Mendes agreed with Professor Heard’s argument.  His logic is compelling and we agree, as well. 

 

The next question, then, is:  is Bill S-4 a permitted exercise of unilateral federal authority under section 44, within the limits described by the Supreme Court in the Upper House Reference?  Here again, the overwhelming weight of expert evidence heard by our Committee concluded that there are significant constitutional concerns as to whether this bill can properly be passed by Parliament alone, without the involvement of the provinces.

 

An important factor for several constitutional experts was the Government’s introduction of Bill C-43 in the House of Commons on December 13, 2006.  That Bill would provide for “consultative elections” to determine electors’ preferences for the appointment of senators to represent a province.  At the time that the subject matter of Bill S-4 was considered by the Special Committee on Senate Reform, the Prime Minister, the Right Honourable Stephen Harper, testified before that Committee and stated his Government’s belief “that the Senate should be elected”.[40]  He also declared his Government’s intention to “introduce a bill in the House of Commons to create a process to choose elected senators.  This bill will further demonstrate how seriously the government takes the issue of serious Senate reform.”[41] 

 

No bill was introduced during the Special Committee’s study, and therefore could not be considered by that Committee.  Bill C-43 was only tabled in the House of Commons almost two months after the Special Senate Committee concluded its study on the subject matter of Bill S-4.

 

The Government’s position is that Bills S-4 and C-43 should not be considered together, but rather each on its own.  Mr. Matthew King of the Privy Council Office told us:

 

“It is the view of the Government that these bills [S-4 and C-43] are not tied one to the other.  Rather, the Government has made it clear that the two bills stand alone and each should be considered on their own merit.”[42]

 

We appreciate that the Government wishes us to consider Bill S-4 on its own, separate from Bill C-43.  However, the testimony of constitutional law experts made it clear that a court would likely proceed differently by looking closely at all the initiatives for Senate reform.

 

Professor Magnet, who was clear that he was simply presenting his best impartial advice, took us through a careful analysis of how a court would approach the question of the Bill S-4’s constitutionality, should it be seized of it.  He said:

 

“First, a court would use the tested and true method of constitutional analysis referred to in so many of the Supreme Court of Canada precedents.  The court would ask:  What is the object and purpose, the pith and substance, the legal and practical effect of this amendment?”[43]

 

To answer this question, Professor Magnet looked at a number of factors, including the substance and preamble to Bill S-4, the history of Senate reform proposals, and Prime Minister Harper’s statements before the Special Committee on Senate Reform.  He then testified:

 

“This makes it clear that Bill S‑4 is part of more to come.  All of this will tempt a court to see Bill S‑4 as part of an overall design with an object and purpose, a pith and substance to change, step by step, the regional representation, first, by changing tenure; second, by providing for election; and, as Prime Minister Harper said, lastly, by trying to create, probably through constitutional amendment, a change in provincial representation.”[44]

 

Professor Magnet told the Committee that in his opinion, a Court would consider this to fall outside the scope of those amendments permitted under section 44.  He said, “Section 44, in my respectful opinion, cannot support legislation that would change the fundamental features or the essential character of the Senate.  Contrary to some of the opinions senators have heard, it is my advice that if a court sees in Bill S‑4 the first step in changing these fundamental features, section 44 will not necessarily support it.”[45]

 

He concluded:

 

“I believe there is a real risk that Bill S‑4 will not survive constitutional scrutiny.  I believe there is a real risk.  I do not say it will not survive, I simply say there is a real risk that it will not survive; and I cannot be more precise than that.”[46]

 

Professor Magnet’s testimony was persuasive for Roger Gibbins, the President and Chief Executive Office of Canada West Foundation, who has been one of the longest-standing advocates of Senate reform in Canada.  He appeared before our Committee (as he had appeared before the Special Committee on Senate Reform) arguing strongly in favour of Bill S-4.  However, after listening to Professor Magnet, Mr. Gibbins told our Committee:

 

“I am still reeling somewhat from Professor Magnet's comments because he raised concerns in my mind about the constitutionality that were not there earlier in the day.  He made the argument, quite persuasively, that if the court sees this as the first step, it would likely strike it down.  At least, that is the bottom line that I read.

 

If that message sinks in and if it stands up, and it sounded pretty persuasive today, then going the Supreme Court reference [route] may make sense.  More fundamentally, it is an invitation to the Supreme Court to shut the process down. 

 

I am caught here.  I am not sure what to do because I always believed that some element of Senate reform is necessary to strengthen the ties that Canadians have to their national Parliament, and to have this debate simply shut down and not have another government touch it for another generation or two would have adverse consequences for the country.

 

I am torn on this.  I would say that the test you have heard this evening has introduced more serious questions in my mind about the constitutionality of what we are doing, and I find that deeply depressing, but also somewhat convincing.”[47]

 

Professor Errol Mendes, another professor of constitutional law, agreed with Professor Magnet:

 

“It is generally known that Bill S‑4 is only a precursor to a larger attempt to have future appointments to the Senate come under a federally regulated advisory elections framework.  In my view, if the two statutes or two attempts are linked, it profoundly is unconstitutional.

 

In my view, this is an attempt to do what cannot be done directly without the clear instructions of section 42 and the general amending formula.  Keep in mind that the patriation reference decision in 1981 informed the then Prime Minister, Pierre Trudeau, that he would breach constitutional convention if he repatriated the Constitution without the substantial consent of the provinces yet the Supreme Court of Canada halted that attempt and the rest is history.

 

In the development of the federal advisory elections of the Senate, we have a much more serious attempt linked to Bill S‑4. This does indirectly what cannot be done directly, both under constitutional conventions and under the Constitution Act 1867 and 1982, without the involvement of provinces and provincial consent. 

...

In conclusion, with all the arguments I have presented, there is good reason to suggest that Bill S‑4 should be withdrawn until further study is undertaken to understand what is really at stake in this piecemeal and dubious attempt to reform the Senate so that it is consistent with the principles of modern democracy.”[48]  (emphasis added)

 

Provincial governments similarly conclude that the two bills must be considered together.  The Honourable Marie Bountrogianni, Minister of Intergovernmental Affairs and Minister responsible for Democratic Renewal for the Government of Ontario, wrote that:

 

“I agree with the legal and constitutional experts who testified before your Committee that Bills C-43 and S-4 should be considered together, rather than in isolation.  Bill S-4 and Bill C-43 are inextricably linked.  Without term limits, Senators would be effectively elected for life; without elections, the Prime Minister’s appointment power would be excessive.  Together, the inevitable changes occasioned by these pieces of legislation would fundamentally alter the functioning of Parliament by changing the essential character of the Senate.  Yet, the federal government introduced legislation without meaningfully consulting provinces or obtaining provincial consent.”[49]

 

The Government of Quebec recently wrote to your Committee, and told us that with the introduction of Bill C-43,

 

“[T]he federal government’s intentions are now known. Bill S-4 can no longer be taken in isolation.  It must now be considered in light of Bill C-43, for its effect is different depending on whether the current method of selecting senators stays the same or is changed.

 

Were it not for Bill C-43, the fixed eight-year term should be non-renewable, for reasons of independence.  On the other hand, if the Senate becomes an elected chamber, as contemplated by Bill C-43, then the renewable character of the term becomes an important accountability mechanism.

 

Since Bill S-4 does not oppose the renewability of the eight-year term, we can therefore recognize that there is an organic link between Bill S-4 and Bill C-43.  The two bills are thus to be seen as two components of a single federal legislative initiative whose overall objective is ‘to create an elected Senate’, to use Prime Minister Harper’s phrase.  The apprehensions expressed by the Government of Quebec in September 2006 with regard to the federal government’s intentions are confirmed with the addition of Bill C-43. 

 

This context leads the Government of Quebec to reconsider its support for Bill S-4 because it can no longer be considered a limited measure.  It is a measure that is now part of a broader initiative revealed by Bill C-43.”[50] (emphasis added)

 

The Government of Quebec also raised questions about the relationship between the proposed reforms to the Senate and Bill C-56, an Act to amend the Constitution Act, 1867 (Democratic representation), which the federal government tabled in the House of Commons on May 11, 2007.  The Government of Quebec wrote:

 

“Although the Senate of Canada has been unable to fully meet the objectives that underlay its creation, it nonetheless remains an integral component of the compromise that gave birth to Canada in 1867, and it is closely tied to the balance of the federation in general and to the balance of the forces at play in the Parliament of Canada in particular.

 

Even in matters concerned with the composition of the House of Commons, the federal context has an influence. Indeed, proportionality there cannot be reduced to a simple mathematical fact. It must follow from a subtle trade-off between various factors, one being the need for Quebeckers as a nation to maintain an effective place within federal institutions so that their voices can be usefully heard in the governance of our country.

 

Bill C-56, which would reduce Quebec’s weight in the House of Commons, is in this context another major source of concern with respect to the current federal initiatives in the institutional sphere.  This is another bill whose withdrawal was requested by a unanimous resolution adopted by Quebec’s National Assembly on May 16, 2007.

 

The federal government’s legislative objectives for the Senate also may prompt demands concerning the distribution of seats in the Senate.  This is a matter which, from the standpoint of the Government of Quebec, and as it pointed out before the Special Senate Committee, the interests at play have deep roots which touch upon Canadian duality and the very origins of the federation.

 

It must always be remembered that the overall balance of representation in the federal Parliament was a crucial issue for Quebec in 1867 and continues to be one for the Quebec of today.”[51]

 

Professor Emeritus Alan Cairns urged us to view Bill S-4 as only the first of a three-stage process of Senate reform – tenure, consultative elections, and redistribution of seats.  He told us:

 

“This forces senators to make a very complicated judgment.  They must decide, among other things, if stage one is an acceptable fallback position if stage two does not get proceeded with because it gets defeated in one or the other House.  There is, therefore, the complicated conundrum that it is intellectually possible to support stage one because you support it as a basis for succeeding with stage two but oppose it as a stand‑alone provision.

 

The problem is that senators lack the choice simultaneously to oppose it as a stand‑alone provision but to support it because they like stage one and stage two when they are bound together.  Stage two obviously changes the role of the Prime Minister and changes the nature of those that get elected.

 

The report of the earlier committee argued that Bill S‑4 is "not linked to prospective advisory election legislation in a way that precludes its consideration as a stand‑alone measure."  However, the proceedings of the previous committee made it very clear that many witnesses argued that Bill S‑4 by itself was unacceptable without an advisory election process. 

 

We have to ask ourselves the question, then, as we decide how to vote on stage 1:  Suppose there is no stage two implementation; have we then improved the system?  By itself, I would argue that stage one not followed by some version of stage two has negative consequences because it would simply increase the power of the Prime Minister in the appointing process by the rapid turnover which he would have completely under his control for successive eight‑year periods.”[52] (emphasis added)

 

However, even viewing Bill S-4 on its own, as the Government would wish, there are still concerns that it exceeds the authority of Parliament under section 44, and requires the involvement of the provinces.  For example, constitutional law professor John McEvoy testified:

 

“The decision to alter Senate tenure to eight years, whether or not open to a second term on an individual basis, is of such importance that, in my view, it goes beyond a matter of interest to the federal Parliament alone.  It is not an internal modification to the Senate; it is a structural change that should involve a level of provincial consent.  The historical and structural approaches to constitutional interpretation support this conclusion.  It is a change that should be considered along with reform of the method of selection.”[53]

 

Professor McEvoy was also clear that in his view, the proposed changes in Bill S-4 would affect the Senate’s role as a body of regional representation, because that role is an integral part of its roles as a revising body and body of inquiry:

 

“Regional representation, inquiry role and revising role are three symbiotic parts of the role of the Senate.  A regional representative is not only to represent the views of that particular region in one single role, but in all of its roles.  The voice of the Senate is very important, and I would disagree with the premise that one should divide the Senate into those three distinct roles.  They are symbiotic.”[54]

 

Professor Don Desserud of the University of New Brunswick testified:

 

“My points are simple; I have two to make.  First, I believe that this amendment does not fall under section 44 and does fall under section 42.  Second, I think comparisons to previous amendments, which reduced the tenure of senators by imposing the 75-year retirement age, are not directly comparable to this one.... 

 

Section 42 says that amendments in relation to the powers and methods of appointments of senators use the general amending formula – the seven-50 rule.  It does not say amendments that drastically change the powers or amendments that improve the powers; it says amendments in relation to the powers. 

 

... I do not see how changing the tenure of senators to fixed eight‑year terms can be seen as anything but a change in the powers of the Senate.” [55]

 

Professor David E. Smith of the Saskatchewan Institute of Public Policy, who has written extensively on the Senate of Canada, told us:

 

“On September 20, 2006, I appeared before the Special Senate Committee on Senate Reform to discuss Bill S‑4 on Senate tenure.  In those remarks, I said that I thought that the fundamental character of the Senate of Canada, to be inferred from the criteria for appointment established at Confederation:  that is, age and property qualifications of nominees; life tenure, originally; a fixed number of senators; and that enunciated 90 years later by the Supreme Court of Canada in its Senate reference opinion that that criterion is independence.  Any proposal to alter the Senate, whose effect would compromise the Senate's independence and which, at the same time, has not met some standard of provincial concurrence for amendment of the Constitution ‑‑ a set of circumstances, I believe, that echoes those leading to the reference opinion itself in 1980 ‑‑ would undermine the essential characteristic of the upper house in my view. 

 

The government maintains that the proposed change to a fixed term of eight years for senators in place of a mandatory retirement age of 75 may be implemented by Parliament acting alone under section 44 of the Constitution Act, 1982.  Honourable senators have heard contradictory testimony from constitutional experts as to the soundness of that position.  My own view is that a fixed term for senators ‑‑ whether renewable, or elected or appointed, challenges the principle of independence that the Fathers of Confederation sought to entrench in the structure of the Senate and which the Supreme Court of Canada reiterated in 1980.”[56]  (emphasis added)

 

Professor Jennifer Smith, Chair of the Department of Political Science at Dalhousie University, was blunt in her characterization of the potential impact of Bill S-4:

 

“I am not certain about whether it is constitutionally valid under section 44 for the Parliament of Canada to make this change.  The reason I say that is simply because I can imagine the argument on the other side.  I can imagine the argument that might be presented to a court and how they might come to the conclusion that an eight‑year renewable term has enough of an impact on the functioning of the Senate that it gets to the power of the Senate and, therefore, you are arbitrarily changing what is, after all, a foundational institution of Confederation.  That is like pulling a rug out from under the people of Canada.  That is an issue.”[57]  (emphasis added)

 

And in fact, this is an issue of significant concern to a number of provincial governments.  Several of the governments which have written to us expressed their disagreement with the unilateral attempt by the current Government to reform the Senate. 

 

The Premier of New Brunswick, Shawn Graham, wrote to our Committee on April 20, 2007.  He said:

 

“The Government of New Brunswick has carefully considered the proposed amendment [Bill S-4] and is not able to support this amendment in its current form.  The Government of New Brunswick does not accept the conclusions of the [Special Senate Reform] Committee that the Government of Canada has the constitutional authority to unilaterally proceed with this proposed change to the tenure of Senators.  Our review of jurisprudence on this issue, contained in the attached position paper, supports the view that the provinces must give consent to any change that affects representation in the Senate.

 

Without other substantive changes to the Senate, the limitation of the tenure of Senators to eight years is more likely to reduce the effectiveness of this forum for regional and sectoral interests in Parliament than to improve it.  The absence of any detail regarding the selection of Senators and their eligibility to be reappointed (or not) is also an area of concern.

 

The genius of the Canadian Constitution is the careful balance that has been struck between the more populated and less populated regions of the country as well as between the rights of the majority and the protection of minorities.  While a term limit of eight years might be appropriate as part of a comprehensive reform of the Senate, a piecemeal and unilateral approach by the Government of Canada to Senate Reform has the potential to lead to a highly unsatisfactory and divisive result.”[58]  (emphasis added)

 

The concerns expressed by Premier Graham are shared by the Government of Ontario.  The Honourable Marie Bountrogianni, Minister of Intergovernmental Affairs and Minister Responsible for Democratic Renewal, Government of Ontario, wrote recently to your Committee, expressly endorsing the constitutional and other concerns outlined by Premier Graham in his letter.[59] 

 

Minister Bountrogianni had testified before the Special Committee on Senate Reform.  After making it clear that Senate reform is not a priority for the Ontario Government, she said:

 

“When the Senate was established at the time of Confederation, it was established on the basis of appointed senators, lifetime tenure, and regional equality, rather than representation by population.  Clearly, changing any of these pieces is a significant departure from the intended role of the Senate, that of “chamber of sober second thought,” and requires a full national discussion and the consent of the Canadian public.”[60]  (emphasis added)

 

In her recent letter to your Committee, Minister Bountrogianni  reiterated her Government’s reservations regarding the unilateral nature of the federal government’s proposed Senate reforms, saying, “I believe it is appropriate under our constitutional federal system that significant changes to federal institutions are agreed to by both partners – the federal government and the provinces.  All Premiers, in a July 28, 2006 communique, agreed that ‘the Council of the Federation must be involved in any discussion on changes to important features of key Canadian institutions such as the Senate and the Supreme Court of Canada.’”[61] 

 

Specifically with respect to Bill S-4, Minister Bountrogianni wrote:

 

“Turning to the reforms proposed in Bill S-4, the Government of Ontario generally endorses the constitutional and other concerns outlined by Premier Graham in his letter of April 20, 2007 to your Committee. Piece-meal and unilateral Senate reform has “the potential to lead to a highly unsatisfactory and divisive result.”  I note that similar concerns regarding an incremental reform approach were raised by the Governments of Saskatchewan and Newfoundland and Labrador.

 

Bill S-4, on its own, would dramatically alter the real functioning of the Senate, detracting from its traditional role as an independent chamber of sober second thought.  The Bill is silent on the issue of term renewals, which means that Senators could become unduly beholden to the Prime Minister if seeking a new term.  They may be prone to follow the dictates of the Prime Minister, who, by the end of two terms in office, could conceivably have filled the Senate with members of his own party.

 

The Prime Minister’s new power to appoint every member of the Senate over eight years would significantly expand his appointment power and impair the independent functioning of the upper chamber.  The result would be a partisan institution with nearly co-equal powers to the House of Commons and an institution that would be more likely to exercise those powers in order to please or obstruct a government, creating an untenable situation.

 

In addition, the Government of Ontario is concerned that the federal government has also introduced Bill C-43, the Senate Appointment Consultations Act.  Bill C-43 establishes a new process for selecting senators in the form of so-called “advisory” elections.  The Prime Minister himself has not hesitated to link the two pieces of legislation as part of his broader Senate reform agenda.  I agree with the legal and constitutional experts who testified before your Committee that Bills C-43 and S-4 should be considered together, rather than in isolation.

 

Bill S-4 and Bill C-43 are inextricably linked.  Without term limits, Senators would be effectively elected for life; without elections, the Prime Minister’s appointment power would be excessive.  Together, the inevitable changes occasioned by these pieces of legislation would fundamentally alter the functioning of Parliament by changing the essential character of the Senate.  Yet, the federal government introduced legislation without meaningfully consulting provinces or obtaining provincial consent.

...

The Government of Ontario has concerns about the constitutionality of Bill S-4 and Bill C-43 and notes that serious questions on this point were also raised by a variety of legal scholars and political scientists before both your Committee and the Special Committee.”[62]

 

The Premier of Newfoundland and Labrador, Danny Williams, Q.C., wrote to the Prime Minister to express his Government’s view that Bill S-4 and Bill C-43 “represent attempts to alter the Constitution of Canada so as to significantly change the powers of the Senate and the method of selecting Senators within the meaning of Section 42(1)(b) of the Constitution Act, 1982.  Such constitutional amendments may not be made by acts of Parliament alone, but also require resolutions of the legislatures of at least two-thirds of the provinces that have, in the aggregate, at least fifty per cent of the population.”[63]  He said:

 

“The choices that we make about our national institutions are fundamental choices about how Canadian society represents itself through sovereign government.  These choices should not be made lightly.  They will have long-lasting effects on the way that our society is governed and the operation of the Federation.  Any changes should be carefully considered by both constitutional orders of government in the context of a national public debate.  The current piecemeal and unilateral approach does not suffice.  There are many reasons to believe that Bills S-4 and C-43, if passed, will have numerous unintended and negative consequences.  They also only address some of the aspects of the Senate that could be reformed.  I understand that you have taken this approach because the threshold for changing the Constitution is so high.  But it is so by design; constitutions are the basic rules that shape our democracy and should not be easy to change.  Constitutional change should take place after careful and thorough consideration.

 

Changes to an essential national institution like the Senate should involve government-to-government consultation.  You will recall that this is the position upon which all Premiers agreed at the Council of the Federation meeting in St. John’s last July.  However, there have been no indications that government-to-government consultations are planned, much less any attempt to seek the endorsement of provincial legislatures for the reforms proposed.

 

In light of the concerns outlined above, the Government of Newfoundland and Labrador requests that your Government withdraw Bills S-4 and C-43.  While we would prefer that you not reinitiate your Senate reform initiative, if you do it should be in the form of a comprehensive reform package, developed through formal government-to-government consultation, and with reference to the general constitutional amending formula in section 38(1) of the Constitution Act, 1982.”[64]

 

The Premier of Nunavut, Paul Okalik, recently wrote to your Committee making it clear that his Government believes that Senate reform, including the proposed change to an 8-year term, should proceed through a single, comprehensive reform process involving the provinces and territories.  He wrote:

 

“I feel it is critical that the provinces and territories be involved in any constitutional reform and this is particularly true of Senate reform.

 

The Government of Nunavut believes that there are several issues which should be examined with respect to Senate reform.  The Government of Nunavut is interested in making representations and working with the Government of Canada and the other provinces and territories to make the Senate more effective and representative.  In particular, the representation in the Senate for northerners is something which requires attention.

 

However, such reform, including the proposal for a fixed 8 year term for Senators set out in Bill S-4, is best addressed through a single, comprehensive reform process which is consistent with the Constitution.”[65]

 

The Government of Quebec was unequivocal in its assessment of the impact of the reforms to the Senate proposed by the current federal Government.  Minister Pelletier (an acknowledged constitutional law expert) wrote that, “The transformation of the Senate raises some fundamental issues for Quebec and the Canadian federation in general.... The federal bills on the Senate do not represent a limited change.”[66]  He later noted,  “In short, the Senate exists in a complex and coherent constitutional environment that is tied to considerations underlying the federal compact and the balance of intergovernmental relations.”[67]

 

The Quebec Government was blunt in its view of the required course of action with respect to Bill S-4:

 

“In summary, the Government of Quebec considers that the federal legislative initiative represented by bills S-4 and C-43 is liable to modify the nature and role of the Senate, in a manner which departs from the original pact of 1867.

 

Such changes are beyond the unilateral powers of the Parliament of Canada. They instead require a coordinated constitutional amendment formula, which in turn requires the participation and consent of the provinces.

 

The well-known legal rule that one may not do indirectly what cannot be done directly fully applies to the amendment process that is in question here with bills S-4 and C-43.

 

The Government of Quebec is not opposed to modernizing the Senate. But if the aim is to alter the essential features of that institution, the only avenue is the initiation of a coordinated federal-provincial constitutional process that fully associates the constitutional players, one of them being Quebec, in the exercise of constituent authority.

 

The Government of Quebec, with the unanimous support of the National Assembly, therefore requests the withdrawal of Bill C-43. It also requests the suspension of proceedings on Bill S-4 so long as the federal government is planning to unilaterally transform the nature and role of the Senate.”[68]  (emphasis added)

 

The only provincial government on record as supporting Bill S-4 is that of Alberta.  The Government of Saskatchewan, while acknowledging that it has received legal advice that Bill S-4 could be enacted pursuant to section 44 of the Constitution Act, 1982, nevertheless has repeated several times that it does not support an incremental approach to reforming the Senate “and does not support Bill S-4”.[69] 

 

The Government of British Columbia wrote to your Committee saying first that Senate and constitutional reform are not a high priority for that Government; British Columbia favours abolishing rather than reforming the Senate; failing that, “substantive changes would be required to make the Senate a truly effective body that would enrich our federal parliamentary system and fairly represent British Columbia’s role in the federation.”   Minister van Dongen told us that his Government recognizes that there are differing views on the appropriate constitutional amending process, and “British Columbia does not have strong views on either the substance of the bill [S-4] or its constitutional implications at this time.”[70]

 

In summary, your Committee received representations opposing the proposed unilateral Senate reforms contained in Bill S-4 from the governments of the two largest provinces in Canada and the governments of two of the smallest provinces and one territory.  In total, these governments represent significantly more than 50 per cent of the population of the country, and three out of the four regions described in our Constitution. Only one province has come forward supporting the Bill.  Other provinces have expressed at best ambivalence and more generally opposition to the proposed incremental approach.

 

As was reiterated by the Supreme Court of Canada in the Upper House Reference, a fundamental, indeed critical role of the Senate of Canada is to protect and defend regional and provincial interests against the combination of majorities in the House of Commons.  As Sir John A Macdonald said during the Confederation debates at the Quebec Conference, quoted by the Supreme Court of Canada:

 

“To the Upper House is to be confided the protection of sectional [now referred to as regional] interests:  therefore is it that the three great divisions are there equally represented for the purpose of defending such interests against the combinations of majorities in the Assembly.”[71]

 

We believe the concerns expressed by these governments must be afforded considerable weight.  If we do not represent the interests of our regions and provinces now, when what is at stake is the very institution established to defend those interests, then we give justification to those critics who question our continued value in Canadian parliamentary democracy.

 

Conclusion

 

The overwhelming weight of testimony that our Committee heard supported the conclusion that there are significant constitutional concerns if we proceed as proposed by the current federal Government and pass Bill S-4 pursuant to the amending powers set out in section 44 of the Constitution Act, 1982.  Experts in Canadian constitutional law have cautioned that this is not a matter for unilateral federal amendment, but rather is one that requires the consent of the provinces.  And indeed, several provincial governments have written to express their considered view that this is not a matter for unilateral federal action, but rather a constitutional amendment to which they must be party.

 

As a legislative committee of the Senate, a revising body, we believe it is our duty within the Canadian parliamentary structure to amend bills brought before us to the best of our ability.  In that spirit, we have amended Bill S-4 in our best effort to correct those elements that we believe would render it clearly unconstitutional.  However, we know that serious concerns remain whether the Bill, even as amended, falls within the legislative authority of Parliament.  Furthermore, in amending the particular provisions of the Bill, we were conscious that we were making alterations which arguably “would affect the fundamental features or essential characteristics” given to the Senate at Confederation.  The Supreme Court of Canada was very clear in its  1979 decision:

 

“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”.”[72]

 

We have exercised our best efforts to provide a term of office that will not impair the functioning of the Senate – however, we recognize, as did the Government of then-Prime Minister Trudeau, that this is not a matter for any Government or any Parliament to decide; this is a matter of the Constitution of Canada, and should be referred for consideration to the Supreme Court of Canada.  In 1979, the Supreme Court invited the Government to return and tell the Court what change of tenure is proposed.  We believe the Court got it right, and that is the proper procedure to be followed.

 

Constitutional law professor Errol Mendes testified that if Bill S-4 were passed, with fixed-term senators then appointed, and legislation subsequently passed by Parliament and these new senators, “there would be constitutional chaos” if Bill S-4 were then found to be unconstitutional.[73]  The Government’s lawyer, Warren J. Newman, subsequently wrote to your Committee, seeking to distinguish the Supreme Court jurisprudence upon which Professor Mendes relied.  The irrefutable fact, however, is that no one can say with certainty what the Court would hold the consequences to be.  “Constitutional chaos” remains a serious concern. 

 

The stakes are high.  This is not a situation where we can accede to the Government’s wish for speedy Senate reform, and wait to find out later whether the Government was right, or whether in fact the many constitutional experts who expressed concern about the constitutionality of this bill were right. 

 

We therefore urge the Government to take the time necessary to do it right as it moves to change the constitutional arrangement negotiated at the time of Confederation.  We ask the Government to refer Bill S-4 as we have amended it to the Supreme Court of Canada.  This is what many of the witnesses who appeared before us recommended; this is what we have concluded is the prudent thing to do.

 

We appreciate that the Prime Minister and his Government are anxious to move quickly on Senate reform.  But we believe, and we trust that the Prime Minister would agree, that the Constitution is more important.  There is no real, objective urgency that demands passing this Bill quickly.  Conversely, the stakes if we get it wrong are significant indeed – as Professor Mendes characterized the potential consequences, “constitutional chaos.” 

 

Several supporters of Bill S-4 have said that they accept the bill’s reforms to the Senate at least in part in the hope that the reforms introduced by the Bill would so destabilize the status quo that further, comprehensive reform of the Chamber would become obviously necessary.  Roger Gibbins has written that he supports the Bill as a means of “destabilizing the status quo to the point where Canadians say, ‘This is a mess, and we’ve got to sort it out.’”[74] 

 

Professor Gerard Horgan told us:

 

“The advantage of what is being done with the incremental reform, as I see it, is that it is introducing instability into the system.  Right now we have what most people would think of as a stable suboptimal system.  By introducing these incremental reforms, it will perhaps cause instability and drive the process forward.” [75]

 

Your Committee believes that changes to any country’s constitution should be guided by a desire to ameliorate existing tension and not to exacerbate them, and this is how we have approached our work on the examination of Bill S-4.

 

We are convinced that the only way to ensure that the approach that the Government has taken on Senate reform is indeed constitutional is for the Government to refer Bill S-4 as we have amended it to the Supreme Court of Canada on a constitutional reference. 

 

We also note the strong concerns expressed by a number of provincial governments and constitutional experts concerning the constitutionality of Bill C-43, and the “inextricable linking” (in the words of the Government of Ontario) between that Bill and Bill S-4.  We believe that the constitutional reference should therefore include Bill C-43 along with Bill S-4, as we have amended it.