The Supreme Court of Canada begins three days of
hearings today into the federal government's proposed
amendments to the election and term limits of Senators. The federal
government has, since it was first elected, attempted on numerous
occasions to pass legislation to make the Senate elected and,
arguably, more effective (the last of the Triple-E, equal, is
seemingly left for another day).
if a province or territory enacts legislation for the selection
of Senators (not necessarily an election), the Prime Minister, in
recommending Senate appointments to the Governor General, must
consider names from the province's or territory's list
newly-appointed Senators remain Senators only for nine years
There was significant debate before the Parliamentary committees and amongst academics as to whether these reforms were
constitutional. The Constitution Act, 1982, provides five
procedures for amending the Constitution. The federal government argues that Parliament is entitled to amend
the Constitution as it relates to the method of selection and term
limits without obtaining the consent of the provinces.
On term limits, the provinces largely disagree—they argue that any reform to the Senate requires
approval of the federal Parliament and 2/3 of the provincial
legislatures representing at least 50 percent of the population of
all of the provinces (the 7/50 rule). Ontario and Saskatchewan argue that the federal Parliament
can provide for term limits, provided that they are not so short
that they interfere with the Senate's ability to be a place of
"sober second thought" (nine years for Ontario, 10 years
On selection, Alberta and Saskatchewan agree with the federal
government. The remaining provinces argue that advisory elections
(because the provinces cannot bind the Prime Minister never mind
the Governor General) require an amendment under the 7/50 rule.
Against the backdrop of the suspension of Senators Wallin, Duffy
and Brazeau, the more interesting issue may be the one tucked into
the back of the reference: what is the procedure for abolishing the
Senate? The federal government, Alberta and Saskatchewan argue that the 7/50 rule governs.
The other provinces argue that all of the provinces have to
Though references, especially about amending procedures under
the Constitution, can be a snooze-fest, this one is likely to prove
different. The Quebec Court of Appeal ruled in late
October that the 7/50 rule applies to Bill C-7. Last week,
Saskatchewan repealed its legislation allowing for the
election for Senators and called for abolition of the Senate. PEI appears prepared to agree to Senate
reform, but only in exchange for increased representation in the
House of Commons. And, to add, the Supreme Court of Canada will be
down a judge, with Justice Nadon sitting out pending another reference in January.
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