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COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF MONTREAL
No:
DATE:
500-09-022626-121
(Decree #346-2012)
OCTOBER 24, 2013
[1]
Pursuant to the Court of Appeal Reference Act, R.S.Q. c. R-23, the Court is
obliged to give its opinion to the Government on the following three constitutional
questions that relate to possible amendments to the method of selecting members of
the Canadian Senate and the duration of their term of office:
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[Translation]
1.
Is An Act respecting the election of senators and amending the
Constitution Act, 1867 in respect of Senate terms limits as well as its Schedule
given first reading on June 21, 2011 (Bill C-7) an amendment to the Constitution
of Canada bearing on the office of the Governor General contemplated by
paragraph 41(a) of the Constitution Act, 1982 that cannot be adopted without the
approval of the Senate, the House of Commons and the legislative assembly of
each province?
2.
Is An Act respecting the election of senators and amending the
Constitution Act, 1867 in respect of Senate terms limits as well as its Schedule
given first reading on June 21, 2011 (Bill C-7) an amendment to the Constitution
of Canada bearing on the method of selecting Senators contemplated by
paragraph 42(1)(b) of the Constitution Act, 1982 that can be adopted only in
conformity with subsection 38(1) of the Constitution Act, 1982, that is, with the
approval of the Senate, the House of Commons and the legislative assemblies of
at least two-thirds of the provinces that have in the aggregate at least fifty per
cent of the population of all of the provinces?
3.
Is An Act respecting the election of senators and amending the
Constitution Act, 1867 in respect of Senate terms limits as well as its Schedule
given first reading on June 21, 2011 (Bill C-7) an amendment to the Constitution
of Canada with respect to the fundamental characteristics and role of the Senate
that can be adopted only in conformity with subsection 38(1) of the Constitution
Act, 1982, that is, with the approval of the Senate, the House of Commons and
the legislative assemblies of at least two-thirds of the provinces that have in the
aggregate at least fifty per cent of the population of all of the provinces?
[2]
Since the adoption of the order-in-council initiating this reference, the Governor
General in Council submitted a reference to the Supreme Court of Canada. The six
questions thus posed ask that court to determine Parliament's powers in respect of
amendments concerning the Senate, and at the same time, to do likewise with respect
to the provinces.
[3]
In addition, subsequent to the hearing of this reference, on September 13, Bill
C-7 (the Senate Reform Act) died on the order paper when the first session of the
current Parliament was prorogued. When asked at the hearing what the effect would be
of such an eventuality, counsel for the Attorney General of Quebec and the interveners
answered that this reference nevertheless still raised questions of current interest, thus
warranting answers. The Court agrees; hence this opinion.
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THE CONTEXT
[4]
Canada's founding fathers sought to implant a parliament modeled on that of the
United Kingdom (see the preamble to the Constitution Act, 1867). Accordingly, there
were two legislative houses, the lower one also called the House of Commons and the
upper one, called the Senate, since the British colonies of North America did not have
an established nobility that could constitute a legislative chamber such as the House of
Lords.1
[5]
These two institutions enjoy the same privileges, immunities and powers as
those recognized at the time by the Parliament of the United Kingdom and by its
members (section 18, Constitution Act, 1867). In law their powers were identical, save
with respect to bills involving the expenditure of public funds or the imposition of taxes
(section 53, Constitution Act, 1867) and some constitutional amendments (section 47,
Constitution Act, 1982).
[6]
The transcript of the pre-confederation conferences shows that the founding
fathers discussed the role and composition of the Senate at length. There is no doubt
that this institution was a fundamental component of the federal compromise in 1867. In
fact, the Constitution Act, 1867 contains no less than 15 provisions that are specific to
the Senate, including its powers, prerogatives and privileges, composition, appointment
of senators and the duration of their tenure of office (essentially sections 21 36), not to
mention other provisions in which reference is made to the Senate.
[7]
For Sir John A. Macdonald, there was no question of senators being elected. He
disliked the fact that the members of the Legislative Council of the parliament of the
province of Canada had been so elected for renewable mandates of eight years. 2
[8]
In this Legislative Council, 24 members represented each of Lower Canada and
Upper Canada since their union in 1841, without reference to their respective
populations. This form of representation would be adopted in the Constitution Act, 1867,
where it was provided that the colonies of New Brunswick and Nova Scotia would also,
together, have 24 senators3. The three regions of the new Dominion were thus equally
represented in the Senate.4 Moreover, 24 senatorial electoral divisions were created for
1
2
3
In 1867, not only was Parliament bicameral, but so too were the legislatures of Quebec, Nova
Scotia and New Brunswick. Such was also the case with the colony of Prince Edward Island, as it
would be when the province of Manitoba was created. The provincial upper houses were all abolished
due to their redundancy and the costs they generated (David Smith, "The Senate of Canada and the
Conundrum of Reform" in Jennifer Smith (Dir.) The Democratic Dilemma Reforming the Canadian
Senate, Montreal, McGill-Queen's University Press, 2009, p. 11, at p. 13.).
An Act Respecting the Legislative Council, Revised Statutes of Canada, 1859 (22 Vict.), c. 1, s. 1.
When Prince Edward Island joined Confederation in 1873, four of these seats were allocated to
the new province.
With the addition of British Columbia in 1871, and the creation of Manitoba in 1870, Alberta and
Saskatchewan in 1905, a fourth region was created, which also was allocated 24 senators. Six
senators were added when Newfoundland joined Canada, as were one for each of the federal
500-09-022626-121
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Quebec that corresponded to those of the Legislative Council of the province of Canada
for Lower Canada in order to protect the province's Anglophone and Protestant minority.
[9]
Historians recognize that for the fathers of confederation, the Senate would have
the following functions:
Regional representation (three then four regions);
Representation of Quebec's Anglophone minority;
Sober second thought for bills and amendments to them;
Providing oversight to those who were wealthy, including the possibility of
controlling any excesses of elected officials.
[10] Over time, the Senate also became the legislative chamber for the introduction of
certain kinds of legislation by the government; particularly laws such as those that were
technical or uncontroversial (of which omnibus bills would be an example) apart from
money bills.
[11] In the same manner, as members of parliament, senators could influence a
multitude of ministerial or cabinet decisions, especially if they formed part of the
government caucus.
[12] In fact, it seems that the Senate and its members play a significant role in federal
political life, and that the institution is not simply a mirror of the House of Commons. 5
[13] For a variety of reasons, there are those who publicly advocate the abolition of
the Senate, or at least the reform of an institution whose usefulness, as it currently
stands, is debateable. Such considerations, however, are not relevant for the purposes
of this reference, which does not address the legitimacy or the necessity of the
proposed changes to the method by which senators are selected and the duration of
their term of office. These questions are purely political. The Court, however, is only
called upon to give its opinion on the question of whether under the Constitution, the
participation of the provinces is necessary to render these amendments valid.
[14] Before concluding this succinct contextual summary, it should be noted that the
great majority of federations have a bicameral legislature, with the second one often
called the Senate.6
5
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RELEVANT CASE LAW
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appointment of members of the Senate with tenure for life. To make the Senate a
wholly or partially elected body would affect a fundamental feature of that body.
We would answer this sub-question in the negative. (p. 77).
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[23] The Attorney General of Canada argues instead that Parliament can act
unilaterally in these matters pursuant to section 91 (peace, order and good government)
of the Constitution Act, 1867 and section 44 of the Constitution Act, 1982.
[24] As for the three interveners, in essence they agree with the position of the
Attorney General of Quebec with respect to the obligatory participation of the provinces
in the proposed amendments. Senator Joyal insists on the constitutional provision
relating to the office of the Governor General and the need for unanimity to either
transform or abolish the Senate. With respect to Francophones outside Quebec and
Acadians, they contend that one of the current Senate's essential characteristics is the
representation of the country's linguistic minorities, which, from their perspective, can
only be amended pursuant to section 38 of the Constitution Act, 1982 (the 7/50 general
amending formula).
THE CONSTITUTIONAL AMENDING PROCEDURE
[25] Since the patriation of the Constitution, Part V of the Constitution Act, 1982
constitutes a complete code that describes the various procedures applicable to any
amendment of the Constitution (Re: Objection by Quebec to a Resolution to amend the
Constitution, [1982] 2 S.C.R. 793, at p. 806).
[26] Part V contemplates five distinct procedures depending on the nature of the
proposed amendment. In a judgment of this Court, Potter v. Quebec (Attorney General),
[2001] R.J.Q. 2823 (C.A.), leave to appeal to the Supreme Court of Canada denied on
October 31, 2002, [2002] 3 S.C.R. x, Baudouin, J.A. summarized them as follows:
[Translation]
[12]
The first is the general procedure (sections 38, 39 and 40 of the
Constitution Act, 1982) that requires the agreement of the federal government
and at least seven provinces having in the aggregate at least 50% of the
population.
[13]
The second is the unanimous procedure (section 41) that covers only a
certain number of matters judged to be of particular importance (for example the
use of French or English, the office of the Queen, the Governor-General or the
Lieutenant Governor of a province).9
[14]
The third is the simplified general procedure specified for 6 matters
enumerated therein (section 42).
Following the 1995 provincial referendum, Parliament precluded the government from proposing
a constitutional amendment based on the 7/50 formula without the agreement of the National
Assembly: An Act respecting constitutional amendments, S.C. 1996, c. 1.
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[15]
The fourth is the unilateral procedure (sections 44 and 45) that permits
Parliament alone to amend the constitution relating to federal executive power,
the Senate and the House of Commons as well as providing the same powers to
the provinces with respect to their constitutions.
[16]
[27] With respect to the Senate, pursuant to section 42 of the Constitution Act, 1982,
the consent of seven provinces representing in the aggregate at least fifty per cent of
the population of all the provinces is required with respect to amendments relating to the
following four matters (in French, "questions"):
the powers of the Senate;
the method of selecting senators;
the number of senators allocated to each province;
the residence requirements they must fulfil (section 42).
[28] Pursuant to section 44, but subject to sections 41 and 42, Parliament may act
unilaterally to amend the Constitution with respect to the Senate as follows:
44.
44.
[29] With respect to sections 38 and 41 of the Constitution Act, 1982, they were not
drafted with a view to applying to amendments to the Constitution relating to the Senate
as an existing entity; rather, these amendments are governed by either section 44 or
section 42. Nevertheless, unanimity would be required (section 41) to abolish the
Senate, since, subject to section 47, it is an institution whose agreement is required for
all amendments to the Constitution, save for those contemplated by section 45. It
follows that the abolition of the Senate would amend the Constitution's amending
procedure, which would thus require the consent of Parliament and all the country's
provincial legislatures (section 41).
[30] Determining whether a constitutional amendment relating to the Senate is subject
to section 42 or section 44 is achieved by taking account of its terminology, as well as
its philosophical and historical context in order to establish its true meaning and purpose
(R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344).
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10
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is limited by the fact that it cannot amend those aspects of its structure that affect
provincial interests.
[38] Such is the essence of the inter-relationship between sections 42 and 44, on the
one hand, and sections 44 and 45, on the other hand.
[39] The four characteristics of the Senate in which the provinces have an interest are
those set out in section 42 of the Constitution Act, 1982. That provision codifies the
opinion of the Supreme Court of Canada in Reference re the Upper House relating to
provincial interest with respect to the powers of the Senate, the method of selection of
its members, their residence requirements and the number of seats allocated to each
region and province. The unilateral amending power pursuant to section 44 of the
Constitution cannot apply to these matters, such as was also the case under the now
repealed subsection 91(1) of the Constitution Act, 1867 (Reference re the Upper House,
supra).
[40] The interpretation of section 42 must also take account, in particular, that
because of the inability of the federal government and the provinces to agree in 1982 on
a total reform of the Constitution, including the Senate, amongst other institutions, the
framers decided to postpone further discussion of the matters it contains, while
specifying the applicable amending procedure to incorporate an eventual consensus in
the Constitution.
[41] While section 44 relates to the amendment of existing provisions of the
Constitution, section 42 addresses the amendment of the Constitution bearing on the
matters enumerated therein, which is broader than the mere amendment of existing
provisions. Section 42 "[translation] aligns itself well with the adoption of entirely new
provisions relating to one of the matters", to quote professors Morin and Woehrling. 11
[42] In addition, it cannot be contended that in the absence of a sufficient consensus
based on the 7/50 formula, Parliament can legislate by adopting an ordinary statute
relating to the matters for which section 42 recognizes a provincial interest, on the
condition it does not formally amend the written text of the Constitution. This is so for
several reasons.
[43] At the outset, it follows from the principle of supremacy of the Constitution that
political actors must comply with its text and its spirit. They cannot circumvent it on the
pretext that the constitutional amending process is complex or demanding. In fact, the
Constitution precludes the circumvention of its amending process (Quebec Secession
Reference, supra, at paras. 73 & 74; John White, "Senate Reform: What Does the
Constitution Say?" in Jennifer Smith, (Dir.), The Democratic Dilemma: Reforming the
Canadian Senate, supra, 2009, p.97.)12
11
Jacques-Yvan Morin and Jos Woehrling, Les constitutions du Canada et du Qubec: du regime
franais nos jours, Tome 1 "tudes", Montreal, ditions Thmis, 1994, p.516.
500-09-022626-121
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[45] Next, it is clear that with respect to the matters mentioned in section 42, the
framers recognized that the provinces' interest in them, and thus postponed any
amendment relating to such matters until the required consensus had developed. In the
meantime, until such a consensus emerged, the powers of the Senate, the method of
selecting its members (the appointment process by the Governor General in the name
of Her Majesty until retirement upon attaining the age of 75 years), 13 the number of
senators and their residence requirements could not be amended by Parliament acting
alone, with or without a constitutional amendment.
[46] Third, Parliament's power to make laws for the peace, order and good
government of the country (section 91 of the Constitution Act, 1867) could not be
interpreted as allowing it to disregard the principles of federalism or constitutionalism. If
Parliament could change the status quo by an ordinary statute with respect to the
matters enumerated in section 42, the development of a consensus with the provinces
would become unnecessary. As a result, the federal government would have no
incentive to achieve a consensus based on the 7/50 formula.
[47] Finally, section 42 cannot be read as reflecting a consensus between the federal
and provincial governments in 1982 to preserve the formalism but not the reality with
respect to the matters set out therein, including the method of selecting senators.
Limiting the constitutional protection afforded by section 42 to the formal power of the
Governor General to name senators would appear to be not easily defensible. In that
regard, what interest would the provinces have had when the Constitution Act, 1982
was adopted to protect a juridical reality that, even then, was inconsistent with political
reality?
12
13
To the same effect, in Attorney General of Nova Scotia v. Attorney General of Canada, [1951]
S.C.R. 31, at p. 36, interdelegation was disapproved, as it would permit Parliament and the provincial
legislatures to indirectly amend the division of powers without having amended the constitution. In
Ladore v. Bennett, [1939] A.C. 468 (P.C.), at p. 474, the Privy Council held that a level of government
"cannot do indirectly what it cannot do directly".
See sections 24, 26 and 32 of the Constitution Act, 1867; Reference re the Upper House, supra,
p. 77.
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[48] In conclusion, the status quo with respect to the matters mentioned in section 42,
and in particular that of the method of selecting senators (named until the age of 75) will
have to continue since as a matter of logic neither section 44 of the Constitution Act,
1982 nor section 91 of the Constitution Act, 1867 apply to them. In this respect, section
42 prescribes not only the amendment procedure for such matters, but recognizes that
they are not within the sole jurisdiction of Parliament, as the Supreme Court held in
Reference re the Upper House, supra.
[49] Next to be examined is the meaning of the only other relevant provision:
paragraph 42(1)(b) of the Constitution Act, 1982:
42. (1) Toute modification de la Constitution du 42. (1) An amendment to the Constitution of
Canada portant sur les questions suivantes se Canada in relation to the following matters may
fait conformment au paragraphe 38(1) :
be made only in accordance with subsection
38(1):
[];
[];
b) les pouvoirs du Snat et le mode de
slection des snateurs;
(b) the powers of the Senate and the method
of selecting Senators;
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[Translation]
According to the Petit Robert de la langue franaise selection is "the act of
choosing the best suited individuals", while nomination is "the act of naming
someone to a job or office", and that naming someone means "designation,
choosing a person of one's own authority, to fulfill a function or office". The word
"selection" refers to the general concept of choosing or making a choice, while
nomination refers to the more precise concept of designating someone to fulfill a
function. The use in paragraph 42(1)(b) of the word "selecting" seems to indicate
by itself what is contemplated, which is the entire process leading to the
appointment of someone to the Senate, but its combination with the word
"method" confirms this broad interpretation. Still according to the Petit Robert de
la langue franaise, "method" means "the particular manner by which something
is accomplished", which refers to the manner or the process by which an action is
effected.
The English version of the Constitution Act, 1982 confirms this broad
interpretation of the expression "mode de selection des snateurs" ["method of
selecting senators"]. According to the Concise Canadian Oxford Dictionary,
"selection" means "the act of the instance of selecting", while "select" means
"choose as the best or more suitable". The English version, however, clarifies
particularly well the broad sense of what is encompassed by the expression
"method of selection of senators" in light of the definition of the word "method".
Still according to the same dictionary, "method" means "a mode of procedure", "a
defined or systemic way of doing a thing", "orderliness", "regular habits", all of
which clearly refers to the process of selection leading to the appointment of
someone to the Senate.
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[54] Moreover, as of 1890, the holder of the office of Governor General who was
named by the British Prime Minister was associated in the process that preceded a
recommendation to the sovereign. This practice continued to evolve to the point that
after the imperial conferences of 1926 and 1930, the sovereign only took advice from
the Prime Minister of Canada. The Supplementary Letters Patent of 1931 and 1947
would confirm that the Governor General had become a Canadian institution whose
occupant could only act on the advice of the Prime Minister.
[55] In reality, the appointment of senators became the exclusive prerogative of the
Prime Minister who was then in office whenever a vacancy occurred. Within this
context, since 1867, Prime Ministers have filled almost 95% of Senate appointments
with persons who were subsequently aligned with the political party then forming the
government (Christopher P. Manfredi, Avis d'expert sur les effets possibles du projet de
loi C-7, May 2013, para. 21), several of whom were former elected members or
defeated candidates.
[56] In the present matter, nothing in Bill C-7 affected the Regal Office or the power of
the Governor General to summon persons to the Senate. In fact, the Governor General
would have formally continued to name such persons on the recommendation of the
Prime Minister.
[57] With respect to the practices the Prime Minister follows prior to recommending
someone for appointment, apart from the limits arising out of the Constitution, including
section 42 of the Constitution Act, 1982, they are matters of convention, precedent and
the realities of politics. Their amendment requires no recourse to the constitutional
amending process contemplated in Part V of the Constitution Act, 1982 (Benot Pelletier,
La modification constitutionnelle au Canada, Scarborough (Ont), Carswell, 1996, p.
104.) Furthermore, the great majority of constitutional law scholars disagree with the
view that the relations between the Prime Minister and the Governor General become
part of the written constitution (B. Pelletier, supra, p. 100-102; Peter W. Hogg,
Constitutional Law of Canada, vol. 1, 5th ed., loose-leaf edition, Toronto, Carswell,
2012, no. 9.3, p. 9-5; Patrick J. Monahan and Byron Shaw, Constitutional Law, 4th ed.
Toronto, Irwin Law, 2003, p. 190-191, 208).
[58] Moreover, to assimilate an amendment of the powers of the Prime Minister with
those of the Governor General for the purposes of paragraph 41(a) of the Constitution
Act, 1982 would limit Parliament's powers because of a constitutional convention. Such
a limitation does not exist, or at a minimum, does not concern the courts.
[59] On the contrary, constitutional conventions are not justiciable, contrary to the text
of the Constitution, which by its nature is susceptible of evolution, as Hogg, ( supra, no.
1.10(e), p. 1-29) affirms:
[T]he conventions allow the law to adapt to changing political realities without the
necessity for formal amendment.
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500-09-022626-121
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Attendu :
quil est important que les institutions
reprsentatives
du
Canada,
notamment le Snat, continuent
dvoluer de concert avec les
principes dune dmocratie moderne
et les attentes des Canadiens;
[]
[Emphasis added.]
[66] Those who promoted Bill C-7 placed emphasis on "democratic values" and the
fact that the Senate should better reflect them. Even more important was that Bill C-7
stated the clear objective of having names submitted to the Privy Council "for summons
to the Senate be determined by democratic election". The purpose of Bill C-7 was not
500-09-022626-121
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simply to create a consultative process, but to make the Senate a truly democratic
institution.
[67] The scheme leading to the election of candidates also illustrated the seriousness
and importance of the electoral process. Candidates could be associated with provincial
political parties (Bill C-7, Schedule, section 3) and could be identified as such on the
electoral ballot (Schedule, section 19). Bill C-7 also contained several provisions meant
to ensure an equitable process: provincial legislation, which generally includes penal
offences, could apply (Schedule, sections 27, 31, 39), candidates could have an
electoral agent and the manner in which votes were to be cast was set out (Schedule,
section 35). Finally, several provisions regulated the determination of the electoral
result, including recounts (Schedule, section 24), the procedure to be followed when
there was a tie vote (Schedule, subsection 21(4)), and the legal recourse available
when there was a controverted election (Schedule, section 26).
[68] In short, the legislative framework was much more elaborate than a mere
consultative process prior to a recommendation being made to the Governor General. It
had all the attributes of a law regulating elections.
[69]
[70] Bill C-7 did not oblige a province to organize senatorial elections. If a province
chose to do so, the process contemplated would nevertheless have had to substantially
respect the requirements set out in the Schedule to Bill C-7. If a province chose not to
do so, that process would be unchanged.
[71] On the other hand, in provinces that wished to conduct such elections, a true
electoral contest might ensue in every respect, conducted as if it were a provincial
election. Thereafter, the name of the candidate having obtained the most votes would
be transmitted to the Prime Minister.
[72] It is true that the text of Bill C-7 did not appear to oblige the Prime Minister to
recommend to the Governor General only someone who had previously obtained the
greatest number of votes at an election held in a province to represent it in the Senate,
but only to take account of the result of the election. Nevertheless, it is clear from its text
and the extrinsic evidence in the record, in particular the comments of the Prime
Minister on the subject and those of other representatives of the government, that
considerable if not determinative weight would be given to the electoral result.
[73] In practice, if the Prime Minister were not to give effect to the electoral result, it is
obvious that the whole exercise would have been a sham, and provinces would lose
interest in keeping it in place. The same impact would be seen on the participation of
provincial political parties, without even considering the effect on potential candidates
and electors.
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[74] It is equally obvious that once the Governor General would have named
someone, that person could legitimately claim to have obtained the support of the
provincial population or the senatorial district in question, as the case may be. As Bill C7 provided, that person could claim to have been selected "by democratic election by
the people of the province".
[75] On the whole, when the real meaning and true character of Bill C-7 is analyzed, it
unquestionably constituted an attempt to significantly amend the current method of
selecting senators, that is, an appointive process until 75, the age of retirement. Such
an amendment could only have been implemented as the result of the federal-provincial
consensus paragraph 42(1)(b) of the Constitution Act, 1982 contemplates.
[76] The agreement of a majority of the provinces based on the 7/50 formula would
therefore have been required.
[77] Moreover, it would have been aberrant to impose Bill C-7 on the provinces when
it required the holding of elections conducted in accordance with provincial laws, with
independent candidates or those endorsed by provincial political parties, without having
discussed it with them and in the absence of a consensus that the 7/50 formula affords
them.
[78] Finally, Bill C-7 would be unconstitutional in that it permitted the amendment of
the method of selection of senators as the provinces may choose at the choice of the
province concerned, which, in 1982, the framers sought to prevent by specifying in
subsection 42(2) of the Constitution Act, 1982 that an amendment adopted relative to a
matter contained in subsection 42(1) applies throughout Canada, without any possibility
of exclusion. The framers intended that amendments made with respect to the matters
mentioned in paragraph 42(1)(b) be uniform and ones of general application.
*****
[79] Bill C-7 would also have limited the duration of a senator's term of office to a
nine-year non-renewable mandate. This amendment to section 29 of the Constitution
Act, 1867 appeared to be based on the proposed scheme of selecting senators that
would have been electoral and, according to the sixth paragraph of its preamble, that
"the tenure of senators should be consistent with modern democratic principles". This
would appear to be an accessory to the rest of Bill C-7, with the result that its outcome
will be the same as for the rest of the Bill under review in this opinion.
[80] Moreover, it is apparent from paragraph 42(1)(b) of the Constitution Act, 1982
that the framers recognized not only a provincial interest both with respect to the powers
of the Senate and the method of selection if its members, but also in their relationship
with each other by dealing with them in the same paragraph.
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[81] The framers thus acted on what the Supreme Court held in Reference re the
Upper House, supra, when it wrote, at pages 76 & 77:
At present, a senator, when appointed, has tenure until he attains the age of
seventy-five. At some point, a reduction of the term of office might impair the
functioning of the Senate in providing what Sir John A. Macdonald described as
the sober second thought in legislation. The Act contemplated a constitution
similar in principle to that of the United Kingdom, where members of the House of
Lords hold office for life. The imposition of compulsory retirement at age seventyfive did not change the essential character of the Senate. However, to answer
this question we need to know what change of tenure is proposed.
[Emphasis added.]
[82] The Supreme Court thus recognized that the duration of a senatorial mandate
was intimately related to the Senate's powers and functioning, just as would be the
method of selecting its members. In reality, an amendment to the duration of that
mandate could affect both the powers of the Senate and the method of selecting
senators.
[83] It follows that the provinces have an interest in the replacement of an
appointment for life until the age of 75 by a mandate of pre-determined duration. The
proposed amendment could not have been governed by section 44 of the Constitution
Act, 1982.
[84] The foregoing extract from the Supreme Court's reasoning also shows the
difficulty inherent in the establishment of an appropriate relationship between powers,
on the one hand, and the duration of a mandate, on the other hand. It would be difficulty
for courts to trace clear guidelines on which side it could be affirmed unhesitatingly that
the Senate's functioning is unaffected by the method of selecting senators. As well, the
transformation from a lifetime mandate to one not exceeding nine years constitutes a
significant qualitative change. In such circumstances, it is more logical to conclude that
the framers chose to leave the determination of the duration of a senate mandate to
political actors rather than to the courts, and that paragraph 42(1)(b) includes the
duration of a mandate within the matters of powers and method of selection.
*****
[85] In conclusion, Bill C-7, if it had been adopted, would have been unconstitutional
without the agreement of the majority of the provinces pursuant to subsection 38(1) of
the Constitution Act, 1982, since its true nature was to amend the method of selection of
senators and the powers of the Senate without having respected the applicable
amending procedure. In reality, Bill C-7 attempted to circumvent that procedure.
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Question 1: No
Question 2: Yes
Question 3: No
500-09-022626-121
Mtre Jean-Yves Bernard
Mtre Jean-Franois Beaupr
BERNARD ROY (JUSTICE QUBEC)
For Attorney General of Quebec
Mtre David Lucas
Mtre Alexander Pless
Mtre Warren J. Newman
Mtre Marc Ribeiro
DEPARTMENT OF JUSTICE CANADA
For Attorney General of Canada
Honourable Senator Serge Joyal
In person
Mtre Christian E. Michaud
Mtre Serge Rousselle
COX & PALMER
For Socit de l'Acadie du Nouveau-Brunswick
Mtre Sbastien Grammond (legal adviser)
DENTON CANADA LLP
Mtre Perri Ravon
Mtre Mark C. Power
Mtre Jennifer Klinck
HEENAN BLAIKIE
For Fdration des communauts francophones
et acadienne du Canada
Dates of hearing: September 10 and 11, 2013
PAGE: 21
500-09-022626-121
PAGE: 22
ANNEXE APPENDIX
500-09-022626-121
PAGE: 23
gouvernement
du
Canada,
relativement toutes les matires ne
tombant pas dans les catgories de
sujets
par
la
prsente
loi
exclusivement
assigns
aux
lgislatures des provinces; mais, pour
plus de garantie, sans toutefois
restreindre la gnralit des termes
ci-haut employs dans le prsent
article, il est par la prsente dclar
que (nonobstant toute disposition
contraire nonce dans la prsente
loi) lautorit lgislative exclusive du
parlement du Canada stend toutes
les matires tombant dans les
catgories de sujets ci-dessous
numrs, savoir :
500-09-022626-121
dinvasion ou dinsurrection, relles
ou
apprhendes,
si
cette
prolongation nest pas lobjet dune
opposition exprime par les votes de
plus du tiers des membres de ladite
chambre.
[]
[paragraphe abrog en 1982]
92. Dans chaque province la
lgislature pourra exclusivement faire
des lois relatives aux matires
tombant dans les catgories de sujets
ci-dessous numrs, savoir :
1. Lamendement de temps autre,
nonobstant
toute
disposition
contraire nonce dans le prsent
acte, de la constitution de la
province, sauf les dispositions
relatives la charge de lieutenantgouverneur;
[]
[paragraphe abrog en 1982]
PAGE: 24
votes of more than one-third of the
members of such House.
500-09-022626-121
PAGE: 25
(2)
Une
modification
faite
conformment au paragraphe (1)
mais drogatoire la comptence
lgislative, aux droits de proprit ou
tous autres droits ou privilges
dune
lgislature
ou
dun
gouvernement provincial exige une
rsolution adopte la majorit des
snateurs, des dputs fdraux et
des dputs de chacune des
assembles lgislatives du nombre
requis de provinces.
[]
d) la composition de la Cour
suprme du Canada;
e) la modification de la prsente
partie.
500-09-022626-121
PAGE: 26
a) le principe de la reprsentation
proportionnelle des provinces la
Chambre des communes prvu par la
Constitution du Canada;
500-09-022626-121
sapplique notamment :
a) aux changements du trac des
frontires interprovinciales;
b) aux modifications des
dispositions relatives lusage du
franais ou de langlais dans une
province.
PAGE: 27
English or the French language within
a province,
may be made by proclamation issued
by the Governor General under the
Great Seal of Canada only where so
authorized by resolutions of the
Senate and House of Commons and
of the legislative assembly of each
province to which the amendment
applies.
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PAGE: 28
(2) La Constitution
comprend :
(2) The
includes
du
Canada
Constitution
of
Canada
500-09-022626-121
PAGE: 29
les
valeurs
dmocratiques
canadiennes et de mieux rpondre
aux besoins des rgions du Canada;
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PAGE: 30
dispositions de la Constitution du
Canada relatives au Snat;
5.
Larticle
29
de
la
Loi
constitutionnelle
de
1867
est
remplac par ce qui suit :
29. (1) Sous rserve des articles
29A 31, le snateur nomm aprs
lentre en vigueur de la Loi
constitutionnelle de 2011 (limitation
de la dure du mandat des
snateurs) lest pour un seul mandat
de neuf ans.
500-09-022626-121
PAGE: 31
Annexe Schedule
CADRE DU PROCESSUS DE
SLECTION DES SNATEURS
1. Les snateurs devant tre nomms
pour une province ou un territoire
devraient tre choisis partir de la
liste des candidats snatoriaux
prsente par le gouvernement de la
province ou du territoire.