Period 1 class 3
Persons Case and the Constitutional "Living Tree" Doctrine
Background on the Constitution Act, 1867:
The text of the Constitution Act, 1867 written regarding senatorial requirements exclusively used masculine pronouns (e.g., "He shall be 30 years of age", "He shall have property worth $4,000").
Based on this gendered language, the federal government originally interpreted the constitution to mean that only male persons were eligible to be appointed as senators.
The Famous Five Legal Challenge:
In 1927, five women—known as the Famous Five—launched a legal challenge against the federal government's interpretation of the Constitution Act, 1867.
The case was initially brought to the Supreme Court of Canada, which dismissed the case and upheld the interpretation that women were not legal persons under the law for senatorial appointment.
Following their defeat at the Supreme Court of Canada, the Famous Five appealed the decision to the Judicial Committee of the Privy Council (JCPC) in Great Britain.
In 1929, the JCPC reversed the decision of the Supreme Court of Canada, ruling that women are indeed legal persons and are eligible to sit in the Senate.
The "Living Tree" Doctrine:
The JCPC ruling established the landmark constitutional doctrine known as the "living tree" doctrine.
This doctrine dictates that the Canadian constitution is not static; it can evolve over time and adapt to changing societal norms, new ways of thinking, and modern mores.
Contextual connection: Women had already gained the right to vote at the federal level in 1920. The logical extension was that if women possessed the democratic right to vote, they should equally possess the right to sit in Parliament.
A monument commemorating the Famous Five and their legal victory stands on Parliament Hill today.
Senate Structure and Proposals for Reform
Historical Continuity and Stagnation:
The Senate is the least reformed institution in Canada and remains nearly identical in design to its original 1867 structure.
The last major structural reform to the Senate occurred in 1965, which established mandatory retirement for senators at the age of 75. Prior to 1965, senatorial appointments were for life, and senators served until death.
Constitutional Reform Failures:
Since the 1970s, there have been a total of 37 failed attempts to constitutionally reform the Senate.
Failure stems from deep provincial disagreements over the nature and scope of changes required, combined with high constitutional amendment thresholds.
Divergent Provincial Positions on Senate Reform:
Abolition: Some provinces favor completely abolishing the Senate, eliminating the upper house/second chamber entirely so that Parliament operates unicamerally, similar to provincial legislatures (none of which retain upper houses).
Status Quo Retention (Ontario): Ontario opposes abolition and supports keeping the Senate, largely because it holds a significant number of seats.
Provincial Appointment Model (Quebec): Quebec favors retaining the Senate but demands that senators be appointed directly by provincial governments rather than the federal government.
Maritime Alignment: Nova Scotia, New Brunswick, and Prince Edward Island favor retaining the Senate.
Undecided/Neutral: British Columbia and Newfoundland remain uncertain regarding their precise preference.
Historical Note on Provincial Upper Houses: Several provinces possessed legislative councils (upper houses) prior to Confederation or in their early history. The last provincial legislature to abolish its upper house was Quebec in 1968.
Federal Party Positions on Senate Reform:
New Democratic Party (NDP): Has consistently favored complete abolition of the Senate over recent decades.
Liberal Party of Canada: Has advocated for an independent, non-partisan Senate.
Conservative Party of Canada: Has historically supported the Triple-E Senate model, aligning with its strong political base in Western Canada (specifically Alberta, where the party has historically won roughly 99% of parliamentary seats).
The Triple-E Senate Model and Alberta's Senators-in-Waiting
Definition of the Triple-E Senate:
Elected: Senators would be chosen by democratic election rather than partisan appointment.
Effective: The Senate would exercise real legislative power as an active counterweight to the House of Commons. Democratic legitimacy derived from popular election would grant senators the authority to block legislation and propose substantive amendments.
Equal: Every province would receive an equal number of Senate seats regardless of population size (e.g., approximately 10 to 12 seats per province), correcting significant population representation disparities (such as British Columbia, the third most populous province, currently possessing only 6 seats).
Alberta's Senator-in-Waiting Mechanism:
To force Senate reform, Alberta instituted provincial senatorial elections held alongside provincial general elections to elect "senators-in-waiting".
Candidates elected by the public do not automatically enter the Senate; the Alberta government submits their names to the Prime Minister, requesting their formal appointment.
Candidates retain their day jobs while waiting and receive no public senatorial salary unless formally appointed. If an elected candidate reaches age 75 without being appointed, they become ineligible.
Prime Ministerial discretion governs appointments. Only two senators-in-waiting have ever been formally appointed to the Senate: Prime Minister Brian Mulroney appointed one in 1990, and Prime Minister Stephen Harper appointed one in 2007.
Stephen Harper's Senate Reform Bills and the 2014 Supreme Court Reference
Concept and History of "Sober Second Thought":
Originally formulated by Sir John A. Macdonald, who drew inspiration from the British House of Lords (where seats were granted automatically to the landed aristocracy).
Macdonald held a skepticism of unchecked democracy and designed the Senate both to protect economic/wealthy minorities and to provide a legislative check on the House of Commons.
In modern parliamentary democracy, sober second thought means providing objective policy review free from electoral pressures, as Members of Parliament often make short-term decisions driven by reelection goals.
Concrete Example: Following the events of September 11, 2001, the Anti-Terrorism Act was introduced. While the House of Commons focused on immediate anti-terrorism measures, the Senate insisted on adding a 5-year sunset clause—a provision terminating the law automatically after five years unless explicitly re-enacted by Parliament—to balance public security with the protection of fundamental civil rights.
Harper's Proposed Reform Legislation:
Upon taking office with a minority government in 2006, Stephen Harper introduced two key bills:
An Act to amend the Constitution Act, 1867 (Senate tenure): Aimed to limit Senate terms to a fixed mandate of 8 years (longer than the average 4-year House of Commons mandate, thereby retaining independence for sober second thought).
An Act to provide for consultation with electors on their preference for appointment to the Senate: Aimed to establish indirect consultative elections nationwide, allowing electors to vote for senatorial nominees whom the Prime Minister would then appoint.
Political Gridlock and Senate Vacancies:
Due to minority government status and Liberal Party dominance in the Senate, Harper's bills failed to pass.
Harper initially refused to fill vacant Senate seats as a protest strategy, leading to 18 vacancies out of the 105-member chamber.
In 2008, under the political threat of a Liberal-NDP coalition government, Harper appointed 18 senators to fill the vacancies.
Conservatives achieved a majority in the Senate in 2012.
The 2014 Supreme Court Reference on Senate Reform:
In 2012, the Harper government submitted a constitutional reference—an advisory mechanism where the government submits legal questions directly to the Supreme Court of Canada—asking whether term limits, consultative elections, or unilateral Senate abolition were constitutional.
Supreme Court Ruling on Term Limits and Consultative Elections:
The Court ruled both proposals unconstitutional via simple parliamentary legislation.
Imposing fixed terms changes the fundamental role and nature of the Senate by altering the security of tenure designed to protect legislative independence.
Consultative elections alter the constitutional architecture by granting senators a popular mandate, which contradicts the Senate's purpose as a complementary, non-elected legislative chamber.
Implementing term limits or elections requires a formal constitutional amendment under the 7/50 rule (requiring the approval of the federal Parliament plus at least 7 provincial legislatures representing at least 50% of the total Canadian population).
Supreme Court Ruling on Senate Abolition:
The Court ruled that complete abolition of the Senate requires the unanimity rule (approval from the federal Parliament and all 10 provincial legislatures).
Abolishing the Senate removes the bicameral structure established in the Constitution Act, 1867.
Note on Amendment Power: While the Senate is part of Parliament, it cannot block a constitutional amendment indefinitely; under constitutional rules, the Senate can only delay a constitutional amendment for up to 180 days if the House of Commons re-approves it.
Modern Senate Reforms: Justin Trudeau, Mark Carney, and Senate Composition
The Trudeau Senate Reforms (2014–Present):
In 2014, Liberal Party Leader Justin Trudeau expelled all Liberal senators from the national Liberal parliamentary caucus, directing them to sit as political independents.
The reform ended traditional partisan appointments (which historically rewarded party donors, political aides, cabinet ministers, or personal friends of the Prime Minister).
Established the Independent Advisory Board for Senate Appointments, allowing ordinary Canadians to formally apply for appointment based on merit and professional expertise.
Outcome: Increased gender equity, higher representation of Indigenous peoples, and appointments of non-partisan domain experts.
Current Parliamentary Caucuses in the Senate:
Independent Senators Group (ISG): Holds 40 seats.
Canadian Senators Group (CSG): Holds 18 seats.
Progressive Senate Group.
Conservative Party of Canada Caucus: Conservative senators remain inside the official Conservative party caucus under Pierre Poilievre.
Government Representatives Office.
Non-affiliated Senators.
Recent Adjustments under Mark Carney:
Retained the Independent Advisory Board structure while modifying specific selection criteria.
Re-allowed individuals with previous partisan affiliations to be appointed, provided they possess targeted domain expertise (e.g., international trade and corporate finance).
Example: The appointment of Sandra Pupatello, a former provincial Liberal cabinet minister and Ontario Liberal leadership candidate.
House of Commons: Principle of Representation by Population
Core Structure and Principles:
Parliament consists of three distinct components: The Crown, the Senate, and the House of Commons.
Unlike the Senate (which is based on regional representation), the House of Commons is organized entirely on the principle of representation by population ("rep by pop").
The House of Commons contains 338 electoral ridings (constituencies), each represented by a single Member of Parliament (MP).
Local Application: The University of Windsor is located within the federal writing of Windsor West, represented by MP Park Gill since 2025.
Urban ridings are geographically small due to high population density, whereas rural ridings cover vast geographic areas due to dispersed populations.
Seat Allocation and Electoral Boundary Adjustments:
Seats are distributed among provinces relative to population size; Ontario holds the largest total number of seats.
Electoral boundaries are redistributed every 7 to 10 years by an independent Electoral Boundaries Commission to adjust for population shifts and prevent political gerrymandering. MPs and the general public provide input, but the final decision rests with the commission.
Constitutional Exceptions to Representation by Population and Electoral Boundaries
Deviations from Pure Representation by Population:
Pure rep by pop would require every riding in Canada to contain an identical number of electors. Canada deliberately deviates from this rule due to statutory and constitutional guarantees:
Senatorial Clause (Section 51A of the Constitution Act, 1867): No province can have fewer seats in the House of Commons than it has in the Senate. Example: Prince Edward Island has 4 senators, so it is guaranteed a minimum of 4 House of Commons seats (under pure rep by pop, PEI would receive only 1 seat).
Grandfather Clause: No province can have fewer House of Commons seats than it possessed in 1974. Example: Quebec maintains its seat total despite a declining relative percentage of the national population. To accommodate growing provinces without stripping seats from Quebec, Parliament expands overall seats (increasing from 301 seats in 2001 to 338 seats currently—an expansion of 37 MPs over 25 years).
Territorial Representation Guarantee: Each Canadian territory (Yukon, Northwest Territories, Nunavut) is constitutionally guaranteed at least 1 seat, despite lacking the population required under strict rep by pop.
Discrepancies in Riding Sizes:
Smallest riding by population: Labrador (approximately 19,000 electors).
Largest riding by population: Niagara South (approximately 112,000 electors).
Represents a disparity of nearly 100,000 electors between the smallest and largest constituencies.
Saskatchewan Electoral Boundaries Reference (1991):
Legal Challenge: Plaintiffs argued that extreme variation in riding sizes violated the right to vote guaranteed under Section 3 of the Canadian Charter of Rights and Freedoms by diluting individual voting power.
Supreme Court Ruling: The Court ruled that size discrepancies do not violate Section 3 of the Charter.
Judicial Rationale (Former Chief Justice Beverley McLachlin): Section 3 of the Charter does not guarantee pure equality of voting power. Instead, its primary purpose is guaranteeing the right to effective representation.
Factors in Effective Representation: Achieving effective representation requires balancing raw population numbers with geographic boundaries, community history, community interests, and minority representation to ensure legislative assemblies represent Canada's social mosaic (e.g., preserving Labrador as a distinct riding due to its distinct landmass, history, and community identity separate from island Newfoundland).
Questions & Discussion
Timeline of the Persons Case Challenge:
Question (Sarah): Request for clarification regarding the specific dates when the Famous Five challenged the constitution.
Response: The legal challenge was initiated in 1927. The Supreme Court of Canada dismissed the case shortly thereafter. Two years later, in 1929, the Judicial Committee of the Privy Council (JCPC) heard the appeal and ruled in favor of the Famous Five.
Details of the Triple-E Senate Model:
Question (Logan): Inquiry regarding whether the Triple-E proposal involved spending public funds or specific financial mechanics.
Response: Detailed financial mechanisms were not fully elaborated in the overarching proposal, but the core focus remained establishing equal provincial representation.
Question (Ben): Inquiry regarding whether a specific number of seats per province was assigned under the Triple-E proposal.
Response: Exact numbers varied, but assuming 10 provinces, the general proposal envisioned approximately 10 to 12 senators per province to ensure absolute equality.
Status and Role of Senators-in-Waiting:
Question (Ella): Inquiry into whether senators-in-waiting receive salaries or hold actual official positions while waiting for appointment.
Response: Senators-in-waiting receive no official salary from the federal government and maintain their regular employment. Many individuals elected as senators-in-waiting in Alberta were never appointed to the Senate.
Question (Lauren): Request for re-explanation of the role of senators-in-waiting.
Response: Senators-in-waiting are individuals democratically elected by the citizens of Alberta to demonstrate provincial preference. However, they hold no official power or seat in the Senate unless the Prime Minister chooses to advise the Governor General to formally appoint them.
Question (Amy): Inquiry regarding the exact number of active senators-in-waiting currently elected.
Response: Recommended using an AI search tool to pull the exact live count.
Intervention (Student): Comment noting that candidates run for senatorial waiting positions around age 55, giving them a 20-year window to potentially be appointed before reaching the mandatory retirement age of 75.
Question (Seth): Clarification on Prime Ministerial discretion.
Response: Absolute discretion rests with the Prime Minister over whether to appoint an elected senator-in-waiting or select another candidate. Because only two have been appointed over forty years, running for a senator-in-waiting position often involves substantial campaign spending without guaranteed appointment.