Prof. David Schneiderman and second-year JD student Matthew Burns have written a commentary in the National Post looking at the potential impact of the Supreme Court of Canada's upcoming decision on the constitutional requirements to reform the Senate ("A recipe for deadlock," November 13, 2013).
Read the full commentary on the National Post website, or below.
A recipe for deadlock
David Schneiderman and Matthew Burns
November 13, 2013
Whatever one’s views about the Prime Minister’s Office or Senators’ housing allowances, there is no understating the enormity of the pending Supreme Court Senate reference. The Court is being asked to determine whether Stephen Harper’s plan for senate reform, limiting terms and appointing “provincially elected” nominees, requires substantial provincial consent. The Court is being asked, in effect, how much movement there is in the joints of the Constitution’s amending formula in Part V of the Constitution Act, 1982.
The Quebec Court of Appeal, responding to similar questions put to it by the Quebec government, ruled a couple of weeks ago that there is not much mobility. The Prime Minister’s plan, the Court unanimously held, amounts to “an attempt to significantly amend the current method of selecting senators” and so requires a substantial degree of provincial consensus, specifically, that contemplated by the general amending formula (seven out of 10 provinces representing more than 50% of the Canadian population).
As Charlottetown and Meech Lake revealed, proposals for meaningful change to Canada’s constitutional design are more than likely to result in deadlock. This holds true for any future constitutional proposals for Senate reform, including abolition. The logic of the Quebec Court of Appeal’s decision is that any non-constitutional process regarding Senate selection — whether be it through elections or on the advice of a nonpartisan body — will require broad provincial consent. The practical effect of the Quebec Court of Appeal’s ruling is the maintenance of an appointment regime supported by only 8% of Canadians, according to a recent Ipsos poll.
The high bar set by the Quebec Court of Appeal is all the more troubling given the shaky reasoning upon which this conclusion rests. Even if one accepts the Court’s proposition that function is no less important than form, it does not follow that these reforms amount to a constitutional amendment. By disregarding the form adopted, the Court lost sight of the fact that the proposed scheme was not to be entrenched. Because it is not entrenched, future governments can freely change the law (or not). Provincial governments, upon whose co-operation the proposed scheme depends, may choose to co-operate or they may not, and this position may evolve from one government to the next. This is the irony of the Prime Minster’s proposal for Senate reform. By pursuing non-constitutional means to secure Senate reform, he cannot, and his party may not, remain in power long enough to ensure that it sticks.
The fact is that Canada’s amending formulae are seriously deficient. Only governments are relevant actors in Part V amendments — there is no mention whatsoever of consulting the people. What our amending formulae contemplate is essentially the same process as that adopted to amend the constitution in 1982. After the Meech Lake debacle, it was decided that a Canada-wide process of consultation via referendum was appropriate during the Charlottetown round. This presumably did not run afoul of the constitutional amending formula and would not today.
The Prime Minister now seeks a means to consult provincial electorates about persons to nominate to the Canadian Senate. There is little in the Constitution to constrain the Prime Minster’s choice of nominee other than a short list of qualifications, including the archaic requirement of holding real property worth more than $4,000. This is not to say that the scheme as proposed could not be improved upon and that abolition is not preferable. What is at stake is the principle that governments in Canada are entitled to experiment, for good or for ill, with poorly performing political institutions without having to run into constitutional gridlock.
