Would Electing the Senate Require Constitutional Change?Save this online in Del.icio.us. [?] Vote For this Post
Would electing the Senate require Constitutional change? That's what Stephane Dion, Gilles Duceppe and Jack Layton are all alleging, according to this (obviously biased in favour of the opposition) CTV piece. While I'm not sure the proposed Conservative legislation is a good idea (discussed further down), Dion et co. are mistaken on the facts if they think passing a law that provides for electing the Senate requires Constitutional amendments like the heart-wrencher that was Meech Lake.
Technically speaking, the Senate is part of the Canadian Constitution and would thus require Constitutional change if it were to become an elected Chamber. The problem is that when people think Constitutional change, they think of Meech Lake and Charlottetown. Actually, those failed accords were addressed to one specific formula for amending the Constitution, one which requires the provinces' unanimous consent.
In this case, the amending formula that would apply would only require the general amending procedure, known as the 7-50 procedure. It requires the federal Parliament to pass the law in order to amend the Constitution, as well as the consent of 7 provinces (two thirds of the provinces, officially) representing at least 50% of the population. The formula in question can be found at section 38 of our Constitution, in Part V. Section 38 is titled "General procedure for amending Constitution of Canada" and it reads:
"38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized bySection 42 reads:
(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces."
"Amendment by general procedure 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):Italics mine. The point is that the trauma over Meech Lake and Charlottetown was largely due to the use of the unanimous amending procedure in section 41, and therefore the problems might be avoided by having recourse to section 38.
(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."
Another possibility is that "the method for selecting Senators" has a restrictive definition and goes to their appointment process. This would allow for the use of section 44, rather than 42 and 38. So if the Prime Minister is still the one carrying out the selection in concert with the Governor General, we could have a situation like the case of Nat Bell Liquors.
Nat Bell Liquors fought an Albertan alcohol law during Prohibition. NBL said that it was unconstitutional because Alberta's legislature abdicated its powers. Legislatures can't abdicate by virtue of the doctrine of Parliamentary Sovereignty. The basis for the abdication claim was that the Albertan legislature acted in accordance with another law that said it would have to pass anything Albertans approved of in a referendum. A referendum had approved the alcohol law and the legislature acted accordingly.
The ruling of the court (Alberta Appeals, if memory serves) was that the law wasn't unconstitutional. It would be quite strange, the justices remarked, to say that the legislature's role was to legislate in contradiction with popular will ....
Here we would have a similar "people's choice" situation where the executive acted in accordance with the will of the voters. The method of selecting Senators remains with the Executive.
Furthermore, if the referendum is made out to be only a consultational one, it would be possible to get around 38/42 entirely and use section 44. Section 44 allows amendment of the parts of the Constitution relating strictly to the federal executive and Parliament. Therefore, it only needs House and Senate approval (plus the rubber-stamping Royal Assent of course).
Why have the elections to begin with if they're only consultative? The point then would be to create a binding Constitutional convention, similar to those that govern the role of Prime Minister (the PM is only mentioned twice in the Constitutional Act of 1982, in fact). According to the Supreme Court's ruling in the first Patriation Reference (1981), a Constitutional convention arises based on three criteria: (i) precedent, (ii) others following the precedent because they feel bound to (iii) a reason for the convention.
So you could get future Prime Ministers to be bound on a so-called "manner and form" requirement for selecting Senators by a convention. This would avoid going through the soul-wringing of a section 41 amendment or even the moderate challenges of a section 38 amendment.
The question then is whether it's a worthwhile thing to do. Given that the Senate would be better off abolished (would require unanimous consent, again according to the SCC) because it doesn't fulfill its function of regional representation, this reform would be counter-productive. Jack Layton's comment that it would make the Senate even more dysfunctional is accurate (I'm quoting Jacko with approval! It's Armageddon!) in that electing the Senate would reinforce party lines there.
Stephane Dion pointed out that you might end up with the Senate being redundant as a second elected Chamber, which is true. Except that it's already redundant, so there's no big difference there.
IMHO, Harper and Justice Minister Toews need to modify their law to aim for the Constitutional convention and section 44 amending procedure. In addition, if the Conservatives' want to make the Senate more representative of Canadians (a noble goal), make it representative of Canadians on a regional basis, as the Senate was intended to be. [The Fathers of Confederation sought to have the less-populous provinces interests protected at the federal level by these means of regional representation.] Jacko could probably play a helpful role here and earn some points in winnable rural ridings by suggesting such a regional emphasis for the law.
Electing the Senate will require Constitutional change, but it can be easy and painless. With some tweaks, it can even be useful to Canadian democracy.
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