Study Notes on Reference re Senate Reform - SCC Case 2014 SCC 32
Reference re Senate Reform Overview
Judgment Date: April 25, 2014
Neutral Citation: 2014 SCC 32
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Case Number: 35203
Subjects: Constitutional Law, Canadian Institutions, Senate, Constitutional Amendment
Summary: This case addresses the constitutional questions referred by the Governor in Council regarding the reform of the Senate, as set out in Order in Council P.C. 2013-70.
Key Issues Discussed
Senatorial Tenure and Terms
Whether fixed terms for Senators can be set unilaterally by Parliament.
Proposed terms included:
Fixed term of nine years (Clause 5 of Bill C-7)
Fixed term of ten years or more
Fixed term of eight years or less
Terms equating to the life of two or three Parliaments
Renewable terms
Retrospective limits for Senators appointed before October 14, 2008.
Consultative Elections
Whether Parliament can create a framework for consultative elections to appoint Senators without provincial consent.
Proposed frameworks involved national processes for consulting nominations.
Property Qualifications
Potential repeal of the property qualifications established in the Constitution Act, 1867 for Senators, specifically ss. 23(3) and 23(4).
Discussion of the implication of removing these requirements and related provincial consent.
Abolition of the Senate
Whether the Senate can be abolished via the general amending procedure or requires unanimous provincial consent.
Proposed methods of abolition included textual amendments or structural changes.
Answers Provided by the Court
Senatorial Tenure: Answers to proposed limits on tenure were all negative—Parliament does not have unilateral authority.
Requires a significant degree of provincial consent; proper amendment process involves the general amending procedure (s. 38) and s. 42(1)(b).
Consultative Elections: Negative—Parliament cannot unilaterally implement consultative elections, as it constitutes an amendment to the Constitution requiring general amending procedures, not unilateral decisions.
Property Qualifications: Affirmative for the repeal of the net worth requirement by federal procedure (s. 44), but full repeal of real property qualifications requires provincial assembly consent (s. 43).
Abolition of the Senate: Negative—requires unanimous consent of all provinces, as it fundamentally alters the federal structure outlined in s. 41(e).
Constitutional Framework of Amendments
Part V of the Constitution Act, 1982 outlines the amendment procedures, divided as:
General Amending Procedure (s. 38):
Requires resolutions of the Senate and House of Commons and at least two-thirds of provincial legislatures, covering substantial changes affecting provincial interests.
Unanimous Consent Procedure (s. 41):
Applies to essential changes involving the monarchy, parliamentary representation, and the Supreme Court's composition.
Special Arrangements Procedure (s. 43):
Applies to amendments affecting only some provinces, ensuring their consent.
Unilateral Procedures (s. 44 and 45):
Allows the federal or provincial governments to amend their aspects without engaging the other's interests.
Constitutional Theories and Implications
The Constitution must be interpreted broadly, reflecting the fundamental principles of federalism, democracy, and minority protection.
Refraining from unilateral changes to integral institutions like the Senate protects the constitutional balance and collaborative governance.
Abolishing the Senate would disrupt constitutional architecture requiring separate mechanisms for amendment.
Historical Context and Challenges
The Senate has been under reform critique since its inception, with various unsuccessful attempts documented through federal proposals.
Any change to the Senate's tenure directly correlates with its intended role within Canadian federalism, demanding a cooperative approach to determine future directions.
Conclusion
Major changes proposed related to Senate reform necessitate comprehensive discussion and coordination across federal and provincial levels to ensure alignment with constitutional principles.
Appendix: Relevant Constitutional Sections**
Constitution Act, 1867 & 1982: Revision procedures and engagement for federal and provincial bodies.
Bills C-7, C-20, and S-4: Legislative frameworks discussed and referenced during the case evaluations.