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Reference re Senate Reform

Since the Upper House Reference,rendered in 1979 by the Supreme Court, constitutional negotiations surrounding Senate reform have always taken place in a multilateral framework that required the participation of the federal government and the provinces.

Since the Conservative Party of Canada was elected in 2006, the federal government has tabled no fewer than eight bills to either turn the Senate into an elected house or to impose a fixed term for senators (8, 9 or 10 years), or both. The Constitution of Canada, however, stipulates that the "method of selecting Senators" can only be amended multilaterally, with the assent of the Senate, House of Commons, and at least seven (7) provinces that represent at least fifty per cent (50%) of the population of all the provinces (the "7/50 formula" set out in paragraph 42(1) (b) of the Constitution Act, 1982). Moreover, in 1979, the Supreme Court ruled that the essential characteristics of the Senate could not be modified unilaterally.

In April 2012, the Québec government filed a reference motion with the Québec Court of Appeal on issues pertaining to the constitutionality of the measures set out in Bill C-7, the last Senate reform proposal tabled by the federal government (it has since died on the order paper). Titled An Act respecting the selection of senators and amending the Constitution Act, 1867, in respect of Senate term limits, Bill C-7 was divided into two parts. Firstly, it stipulated an electoral framework that was to be the "basis for the selection of Senate nominees" (clause 2). Insofar as a province enacted legislation on senatorial elections that is substantially in accordance with the stipulated federal framework, the Prime Minister of Canada would have to "consider" the election results in recommending Senate nominees to the Governor General, who officially appoints senators (clause 3). Secondly, Bill C-7 would have amended section 29 of the Constitution Act, 1867, stipulating that senators would henceforth be appointed for a single term of nine (9) years. Currently, section 29 states that a senator serves until he or she reaches retirement age, which is set at seventy-five years of age.

On October 24, 2013, the Québec Court of Appeal issued a ruling in support of the Attorney General of Québec, declaring that Bill C-7, if passed, would have been unconstitutional, as the measures it contained pertained to the "powers of the Senate and the method of selection of senators", matters covered by paragraph 42(1) (b) of the Constitution Act, 1982, which refers to the "7/50 formula." The Attorney General of Canada had argued that the method of selection of senators was untouched by the bill, as the method would remain by appointment (not election), with the Prime Minister of Canada and Governor General retaining their prerogative regarding the final selection of nominees, regardless of the election results. He also argued that the length of a senator's tenure was not a matter subject to the multilateral process for constitutional amendment.

On February 1, 2013, the federal government also turned to the courts, filing a reference with the Supreme Court of Canada with respect to Senate reform. The government asked the Court to determine the procedure applicable to 1) amending the tenure of senators; 2) instituting consultative senatorial elections; 3) abolishing the Senate; 4) amending the requirements regarding property qualifications for senators.

The hearings on the federal reference took place in November 2013. Aside from Yukon, all the provinces and territories intervened. The Supreme Court also appointed two friends of the Court (amicus curiæ) to submit briefs, given the complexity and importance of this constitutional case. The Supreme Court rendered its judgment on April 25, 2014. It ruled in favour of the Attorney General of Québec (and the other interveners who had submitted essentially the same arguments) on all questions put before it. It thus corroborated the essence of the conclusions reached by the Québec Court of Appeal in its finding. The Supreme Court also concluded that the unanimous consent of the federal Parliament and provinces was required to abolish the Senate, thereby recognizing that all of the provinces had a right of veto on this fundamental matter. Moreover, it concluded that the federal Parliament had to obtain Québec's consent in order to amend the property qualification for senators, as the Constitution contains a special arrangement for senators from Québec. 

For Québec, this is an important reference, as it is one of the few decisions in constitutional jurisprudence that addresses, on one hand, a profound change to a federal institution that lies at the heart of the federative compromise of 1867 and, on the other, the role that provinces are called upon to play with respect to such a change. 

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