Notes from the Senate Reference Hearing

8/14/2019 Notes from the Senate Reference Hearing

1/41

Canada:

34 years ago, gvt sought courts advice on legal issues surrounding Senate reform. That advice was

reflected in the new amending procedures in part V of CA 1982. That was a framework, but reform

failed. Now again advice for democratic reform of the Senate.

Four questions: term limits, consultative elections w/out amending the constitution, property

qualification, procedure for abolition.

On term limits: can Parliament use s 44 to amend s 29 of CA 1867? We say yes. Three conventional

interpretive techniques: primacy to the text, consideration of historical context, pith and substance of

proposalstheir purpose and effect.

In 1965, Parliament acting alone under 91 1 changed the constitution to reduce senatorial term from life

to 75 years. Parliament can act to limit tenure including in a significant way. For some senators, it was a

reduction of 20-25 years. Parliament was also able to add seats for the territories, and to add seats to

HofC. So 44 is not mere housekeeping.

S 44 is subject to 41 and 42. 41 says nothing about term limits. 42 speaks of powers of the senate and

method of selecting senators. Nothing suggests these are mere examples of what provinces must be

consulted on. QCCA said its these four only. Care was taken to define issues of fundamental importance

to the provinces, for example only one of the five qualifications. So nothing says provincial consent

required for changes to tenure.

1982 procedure came after Upper House Ref, where question was asked about tenure, and after 1965

amendment. It was drafted by the provinces themselves. Provinces defined what really mattered to

them. They made their choices, and their choices did not include tenure.

Pith and substance: Senate Reform bills all have general purpose to reflect democratic values. Ministers

suggests term limits would reinvigorate the senate by increasing turnover, attract better people, remove

unproductive people. These are valid democracy-enhancing goals. Contest is more about the effects. In

Upper House ref there was a question about tenure, but Court refused to answer. It said some terms

might be too short. Issue is whether a change to tenure would affect one of the subjects in 42. Only real

possibility is a change to the powers of the Senate. But thats an overbroad construction of powers.

Powers is about sort of work Senate does rather than its capacity to do that work.

Lebel: we dont have to consider whether the change will modify the nature of the Senate, look just at

wording of 42?

Yes, thats our position.

Lets look at likely effects of changes to tenure. There is some empirical evidence. Terms of 8 to 10 years

are not far from post-1965 reality, mean/median terms are about 10 years. If thats enough, the

proposals are enough too. Lets look at upper house terms in other democracies.


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Abella: regardless of 8/12 years, renewable or not, whats missing is the intended character of the

senate; dont we have to think about what the intention of the framers was in designing this senate

compared to the house of commons; otherwise we are dealing with abstract principles.

Most relevant history is the 1982 history. 1982 act is almost entirely how you change 1867 act.

Abella: but youre asking us to look at whats being amended. 75 to 8 years is one thing, but if we go

from independent body to one that is responsive in a different way, isnt it a different question?

Its about how you get that in discussion of amending procedure. If its about senates independence, we

have to be careful about how it fits with the amending procedure. Argument against us is that it will

affect independence; but if term limits compromise independence, thats an argument that term limits

shouldnt be adopted at all. They dont become more acceptable if the provinces are involved. Thats

not the point of the questions. The question is only about who can make the change.

Abella: its not just independence its also sober second thought. People who look for renewal or a

second career, does that affect the power of independent sober second thought? The heart of thequestion is whether it interferes with the historic characters

The reason I spoke of historical evidence is that now Senators serve terms much like those proposed. If

those are acceptable, then its not much of a change.

CJ: do you accept that independence and sober second thought are dinfing characteristics of the

senate?

Independence was the goal in 1867, more aspirational than achieved. You have to think about

independence from whom or what? Theyre political partisans. Its not like the independence of other

political actors. The issue is whether it has something to do with one of the four items in 42. The claimhas to be that powers of the senate includes independence somehow.

Abella: thats exactly the claim thats made. It is argued that if youre appointed at 67 and have 8 years

left, thats very different from being appointed at 50 for 8 years. The question is about the kind of

institution the senate is. Is it about powers or

Im asking you to give powers of the senate the most conventional meaning, about legislative

authority, not about whether it would be a better place with term limits, thats an argument about

efficacy, not about what the powers of the senate are

Abella: so you say term limits dont affect powers of the senate to do the job historically anticipated orwhat the government is proposing it be

Our position is that it doesnt affect sober second thought. Be careful with independence, the claim

hasnt been articulated, its not a neutral body, never has been never will be.

Moldaver: some people will say, I know its a bit of a stretch, that it will better fit under method of

selection, if Im selecting someone for life or until 75, or for 8, 9, or 10years, it may be different


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The second question, about consultative elections, is all about method of selection

Moldaver: but your friends say this is too

I know they say that, but our position is that it is even more of a stretch to tie it to method of selection

than to powers.

If we measure the senate terms by standards of other democracies, we would still have one of the

longest terms in the world. You cannot plausibly argue that 8 or 9 years are not enough. Elsewhere they

think it is, even shorter terms are. Is it a colourable attempt to get at the powers of the senate? Not at

all.

Rothstein: what would happen, if youre right, and fed gvt decided to have term limits of four or five

years? Could they?

In the Upper House reference it was suggested that a term could be too short to allow the senate to do

its work. At some very small number it would be tantamount to abolition. The Court didnt go there

though, and you dont need either. All of the proposals before you are 8 years or more.

Rothstein: but its about principle. It shouldnt matter whether its 8 or 9 years or anything. If theres

something that restricts fed government from doing it unilaterally, that changes the discussion

Its difficult to identify a number. Different parties suggest different things. How do you get to a

number? The only advice the gvt needs is whether 8 years or more are enough.

Rothstein: were really talking about whether 44 can be invoked to do it unilaterally. You say if its 8

years 44 applies. If its 4 years, could it?

In principle, the amending power is with the federal gvt under 44, subject to the exceptions, and

independence, sober second thought only come in at a low number

Rothstein: because then goes to powers?

Because at some minuscule number it becomes a colourable attempt to take away all powers.

Cromwell: your position is that 44 is everything about the senate except whats in 42?

Yes

Karakatsanis: you told Justice Abella that we dont have to lookat 1867 for essential features of the

senate, we just look at 1982, at Part V, right?

No, the essential features were established in 1867, but when we talk about reform, who has the power

to do it, 44 gives power to Parliament, subject to 42.

Karakatsanis: so tenure is essential characteristic?

Tenure is in CA 1867, and 1982 is about how to change whats in there


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Wagner: how do you reconcile your position with what this court said in 1980, where it says how 91 1 is

to be narrowly interpreted

You have to look at purpose and effect of proposals, and history. Whether we describe it as narrow or

not is not helpful.

CJ: But you say that the living tree approach applies, so long as essential features remain the Senate

should be capable of change as to detail so as better to reflect modern reality?

Thats what the preambles tothese bills say

CJ: by reading some of the factums there was a lot of emphasis there was emphasis on what founding

fathers said, like originalism, in others on need to evolve. Where do you situate yourself?

Governments goal is evolve, its reflect in gvtposition on the 4000$ qualification, so yeah, living tree

Lebel: but are tenure etc mere details?

No, not mere details

Lebel: but then why should there not be provincial input, if this is not just housekeeping?

We have specific amendment procedures, and with respect to the senate, there are four things of

interest to the provinces

Consultative elections:

Lebel: can we interpret the amending formula w/out reference to the complete constitution, including

principles

Federalism says provinces agreed on this formula, thats what they wanted

Abella: you say its not about whether its a good idea, but you keep saying that it is; also you take a very

literal approach, its not about how Canada works

You cant take an approach that would add things to 42, that would render the constitution incoherent,

they agreed on something, we must keep to that

On consultative elections, text, history, and pith and substance; the consultative processes do not

require constitutional amendment; ordinary legislation under POGG is enough because there is no

change to the text of CA 1867. S 24 gives GG power to summon qualified persons; you couldnt havedirect elections; but the GG legally and constitutionally acts pursuant to the advice of the PC, by

convention of the PM. Provinces have never had a formal role in the process leading up to GG

recommendations; thus the consultative process contemplated in c-7 and c-20 is not contemplate by the

words method of selection

Rothstein: Is it a constitutional workaround?


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Its a more transparent andpotentially accountable decision-making system, but its not a change to the

method of appointment, because the PM still advises, and GG still appoints; PM could create a

commission to advise him

Lebel: So long you dont change BNA Act, there is no changeto method of appointing in the meaning

of 42?

Yes

Lebel: Even if the political process is completely changed?

Not completely

Lebel: substantially

Hes getting substantially more advice (laughter)

Lebel: and theres the possibility of JR

Well yes, thatsa possible result

Lebel: so theres a change, but not within BNA framework

Yes, its not a change that requires amendment

Wagner: the preamble says constitution similar in principle to the UK, isnt it a change to that?

Theyve changed it, too.

Abella: but the principle is unelected upper house? And now youll have an unelected body from electedpeople

But its not direct election. That would take direct election

The effect is no different from a non-binding referendum. Its aggregating views of electors whom the

PM couldnt consult personally. Changes like fixed-election-date that have a constitutional effect need

not require constitutional amendment.

method of selecting doesnt give provinces power to influence selections; its a power they never had

Explains Oct 14 2008: we think these sorts of changes be retroactive

***

It is a formalistic approach we are taking to Part V; Part V is the result of a specific agreement between

political actors, so it requires a different approach than the Charter

About abolition: we are not talking about unilateral abolition; our opponents suggest that thats what

we want to do, but that is not our position and that is not what the questions ask


7/41

S 38, via 42, is the proper process for abolition. Court rejected unanimity in Patriation reference, and it

was rejected in part V.

On language: in Big M, court said interpretation is in linguistic, philosophic, and historical context; in

Secession Reference, par 32: text is primary source, although not exhaustive; unwritten principles and

rules apply when text doesnt deal with the problem; but here you have an exhaustive and completecode, in part V. At par 53: principles no invitation to dispense w/ written text; predictability and

certainty were missing before 1982. Principles can fill gaps, but there are no gaps here because of Part

V.

S 38 is the fallback provision in Part V, its where you go absent a specific rule. S 41 is the exhaustive

list of procedures that require unanimity. S 42 carves out items out of s 44. 41b provides a base number

of MPs. Framers did not protect the senate in 41, they went to 42 1b and 1c. Unanimity is very difficult.

7/50 is difficult too, and gives the provinces a full right of participation, which is very different from what

was at issue in upper house reference. In 42 1b and 1c there are no internal limits. The powers of the

senate could be reduced to nothing. The number of the members to which a province is entitled could

be reduced to 0. Comparing it to 41, its clear the framers did not approach the Senate in the same way

as the House of Commons. In 1867, the powers of the two houses were (almost) equal. In 1982 there is

a significant change. S 47 allows the HofC to override the Senate

Lebel: but this gives the Senate a role to play

A role, but not the final word. And the Amending formula works w/ out the senate.

Cromwell: except 44

But that says Parliament and Parliament could be redefined under 7/50 to mean Queen and HofC.

About history: there have been doubts about the need for the Senate since before confederation. Bill c-

60 would have abolished the Senate. Then there was the upper house reference, Patriation proposal,

Patriation Reference, agreement between the provinces which basically becomes Part V, which also

suggests that unanimity was an exception. These things suggest that reform of the senate was at the

forefront of the political agenda. What the political agenda came up with is Part V, which doesnt

mention senate reform in 41.

Abella: If you take out the senate, whats the guarantee to the provinces about number of mps in 41?

41 provides a historical baseline at the time this section comes into force

Abella: but this protection is tied to the senate; you take out the senate and it floats away

The protection is tied to the number of Senators that were there when part V came into being. The base

limit still applies if the senate is abolished

Moldaver: you say 42 is a de facto way to abolish the senate, although some would say changing doesnt

mean changing to 0. But if you go to 38, could the provinces opt out?


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9/41

Its both; its 42 insofar as you can reduce powers and seats to nothing, but these things are not enough,

maybe some references to the Senate in CA 1867, they will be spent, or maybe you do an amendment

under 38 to clean it up

Karakatsanis: So which is it?

Depends on the approach taken

CJ: whatever the final agreement looks like?

Yes

***

Removal of property requirement:

There seems to be agreement that this can be done under 44; wrt to residence requirements for

Qubec, you can do a bilateral amendment with Qc under 43

Cromwell: why not 42 1c?

There is a distinction between general requirements and those specific to Qc

***

Ontario: provinces have a strong interest in the Senate. Part V recognizes provincial interests. Provinces

should play a role in fundamental senate reform.

Court is interpreting the amending procedure for the first time; an express articulation of the relevant

interpretive principles will illuminate the path forward; the issue is whether the apparently overlapping

provisions are broad or narrow.

Canada says 44 is broad and 42 is narrow exceptions. We say 44 is narrow. Principles demonstrate that.

If the court had ignored context and purpose, we would have a very different constitution. The court

relied on context in the Upper House reference, which is fundamental for this case even though it

predates part V because it states the extent of provincial interests.

Provincial consensus to fundamental changes has always been seen as fundamental. S 44 is not plenarybecause of

Constitutions are difficult to change for good reason. It is this difficulty of amendment that distinguishes

constitutions from ordinary law. Entrenchment means we put things beyond easy reach. Harmony in

society requires agreement of more than simple majorities. Interests must be accommodated; the

balance struck should not be upset lightly; the degree of difficulty should be commensurate with the

interests at stake.


10/41

Federalism is a defining principle, without which Canada would not exist. Federal power of unilateral

change would upset the balance.

CJ: How do we use the broad principles? Does federalism suggest that we should prefer 38?

They go to understanding whose interests are at stake

CJ: Are provincial interests at stake in abolition?

Yes, and indeed the federal gvt agrees. S 44 is for things that only interest the federal government. In

Securities reference, court said federalism requires the maintenance of a balance. Federalism is

different from other powers in shaping how the provisions of the constitution are to be read. The

essential characteristics of the senate are its powers as the house of sober second thought, its method

of appointment, and its regional composition. These reflect the federal principle, the balance. As for the

democratic priniciple, the issue is the process of reform, not the result. The democratic principle does

not tell us who should be elected. US is not more democratic because it elects the proverbial dog-

catcher, many in its judiciary, and its head of state.

Part V provides a spectrum of ways to change. But 7/50 is the default provision; everything else is

exception. It reflects the courts substantial provincial consent requirement. S 38 provides an opt out,

but of course there can be no opt out from change to federal institutions such as the senate and the

SCC. There is a sliding scale dependent on the interests at stake. If the provinces have an interest, they

should have a role.

S 44 is not a plenary grant of authority. It applies to matters of interest only to federal government, not

those that interest provinces. S 44 and 45 are similar, except for provincial concern in federal

institutions. In upper house reference court rejected plenary power conception of 91 1. Court

interpreted to mean the constitution of the federal gvt as distinct from provinces. In OPSEU court said

exclusion applies to indivisible matters and fundamental terms of union.

91 1 and 92 1 were repealed, but the key terms constitution of Canada and constitution of the

province were retained, in reliance on the Courts authoritative interpretation. Explanatory note and

ministers comment suggest 44 was internal matters such as quorumor property qualificationsthat

are not of interest to the provinces

CJ: but in 1867 property was of considerable importance; has the living tree grown?

Note that the amount was never raised

CJ: Youre asking us to look at it through the lens of today

Yes, the question is what are the essential characteristics of the Senate todayindependent house of

sober second thought, appointed house, and regional representation

Rothstein: Could the federal gvt unilaterally increase it?


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Not having ever done it, that has led to acknowledgment that this is not a fundamental characteristic

now, so reintroducing it now would be a fundamental change

Rothstein: so living tree?

Yes

On consultative process, the distincition with a real election is without a difference. Courts are

concerned with substance over form, and have overturned colourable legislation. From every angle but

one this is an election. The candidates are asking for votes, not for opinions. Denying winner right to

take a seat does not make it different. Canada says no matter because old process survives. But this is

formalistic and goes against the intention of the framers.

CJ: Your friends will say that the living tree can apply here too

Living tree operates within a context; it applies to procedures for constitutional change, but it cannot

get us to different rules.

CJ: isnt it logically inconsistent to say living tree there founding fathers here?

No because one thing has not endured since 1867 but the other has

Cromwell: does your position preclude purely provincial process?

No, Alberta did it, it was fine

Cromwell: if the PM says Ill take it seriously

Thats fine, PM can consult if it is not public law

Cromwell: so you could have the same system, so long as it is not in writing?

Well, you couldnt have an election without a law; a federal statute that derogates from the PMs

discretion and creates election creates a form of consultation that is not legitimate

Lebel: if its done under a federal legislative government is illegitimate?

Yes, one under a federal scheme and would constrain PM, in practice or law

CJ: What difference does the law make? You say PM can make a practice

PMs come and go, they can change their practice; the likelihood that PMs will follow predecessors

practices is low; a law makes this thing mandatory

CJ: Could a government ignore the statute such as C-7?

Thats pretty bad when elected government ignore the law; the normal response is to amend the law

CJ: So these bills could pass and the next government could repeal it and have an on-off elected body?


12/41

In theory, yes, but that would be a mess

Lebel: it would look like pre-confederation legislative council

Cromwell: are you saying that if there is an unfettered discretion in the constitution a statute cannot

fetter that?

Yes

Cromwell: so you cannot pass legislation for appointing an advisory committee for appointing judges?

(embarrassed silence). The principles underlying judiciary and senate are different. Independence of

the judiciary is served here, so its ok

Cromwell: so then its not fettering discretion but serving underlying goals that matters

Thats part of it

On term limits: the point is that they must be long enough for senate to have long-term perspective and

be independent; 8 years or less is too short, because it would allow a two-term PM to appoint

everybody; that changes the powers of the senate.

Abella: but they are partisan appointees

Once appointed you are free to change Long terms also mean opposition representation survives

longer

On abolition: it is such a fundamental change that unanimity is required

Wagner: protection of minorities is a constitutional principles; whats the place of aboriginals in that

process?

In the amending formula its the legislatures

Wagner: what about the living tree?

You still cant ignore the letter of the constitution

Amending formula includes Senate, so 41 includes senate. You cannot have colourable legislation.

Cromwell: Would the creation of a province change the amending formula?

The formula doesnt say how many provinces

Cromwell: but the meaning of unanimity would change;


13/41

Senate is expressly named in all the multilateral amendment formula; it can initiate amendments. Feds

say s 47 means Senate is not important. Its the opposite.

Abella: can you amend powers of the senate so as to deprive them of role in amending procedure?

No

CJ: what powers could you take away under 42 1?

You could give them a suspensive veto

CJ: In the amending procedure

Not there

CJ: so what can you remove?

Powers wrt ordinary legislation

***

Qubec

Le PM sera contraint des lections, les snateurs lus se compoteront diffremment, et les relations

entre le snat et les communes seront profondment modifies. Cest une vritable loi lectorale qui en

a tous les attributs. Les snateurs seront lus par plus dlecteurs que les dputs, et en driveront une

lgitimit dmocratique

Le titre de C-7 cest Loi concernant la slection des snateurs , les attendus sont aussi clairants sur

lobjet et leffet du projet. Cest une lection, pas unrfrendum, pas une consultation. Un rfrendumporte sur un sujet spcifique. Andrew Heard dit quil sagit clairement dune lection et que limpact

pratique de c-7 sera de transformer le snat en institution lue. Le premier ministre sera li par le

rsultat dun vote, le premier ministre actuel ladit plusieurs fois en chambre.

Que le PM soit li ou pas, cest un changement au mode de slection des snateurs. Le mode de

slection actuel est non-lectif.

Wagner : sil y a une lection, est-ce que a change le rle du snateur?

Effectivement. Un snateur sera redevable aux lecteurs, naura pas la mme relation avec la chambre

des communes. Si en plus il est nomm pour une courte priode, a renforce le principe. La dure

moyenne des mandats na rien voir avec une nomination pour un terme. La perspective au moment de

la nomination est diffrente, mais plus le mandat est court, plus a cre de problmes. Si les gens se

peroivent comme lus, le rapport entre les deux chambres nest plus du tout le mmequavait t

envisag par les pres de la confdration. Les snateurs nauraient plus lindpendence

Lebel : mais en ralit les snateurs ne sont pas vraiment indpendants


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Peu importe la ralit , ce nest pas une raison pour modifier si la modification ncessite laccord des

provinces

Wagner : doit-on tenir compte de lvolution du rle du Snat?

La thorie de larbre vivant na pas t utilise dans un contexte comme celui. Les droit de la Charte ou

le partage des comptences doivent voluer, mais pas les institutions fondamentales qui font lobjet du

pacte fdratif.

CJ : Et le 4000$?

Cest du dbroussaillage pour une institution devenue dsute, mais ce nest pas la mme chose que par

exemple augmenter cette exigence, l a serait imposer des conditions ce qui ferait partie du mode de

slection des snateurs

Si on faisait la moyenne de la dure du mandat dun juge, mais imposer a comme limite ce nest pas

pareil. Dailleurs il faut toujours se mfier des statistiques.

La dure du mandat est trs importante. On avance toutes sortes de chiffres, personne ne sentend sur

le bon chiffre. Mais cest fondamental pour le fonctionnement du Snat. Ce nest ni au Parlement ni la

Cour de fixer un chiffre. Lentente, ctait nomination vie, et il faudrait une nouvelle entente pour la

changer.

Lebel : par lart 38

Oui, ce serait relatif au mode de slection. Cest ce que la cour dappel dit au par 81.

On disait que si on pouvait imposer la retraite 75 ans, un mandat de 9 ans nest quun petit pas. Mais

la Cour ne sest jamais prononc l-dessus. Mais ctait une question fdrale interne, a visait instaurer un rgime de retraite pour les snateurs. [???? Cause et effet????] Dans cette perspective-l, il

fallait fixer un ge de retraite, mais crer un rgime de retraite cest effectivement de la rgie interne.

Larticle 44 reproduit les pouvoirs qui taient 91 1. Il aurait t fort curieux que les provinces

acceptent daccorder plus de pouvoirs au parlement alors quelles venaient dobtenir gain de cause en

80 et que le renvoi sur le rapatriement leur donnait un droit de regard, pourquoi auraient-elles

abandonn un pouvoir relativement au snat? Heard considre que la limitation du mandat nest pas la

mme chose que limposition dun ge de retraite. Le comit snatorial pensaient que mme un mandat

de 15 ans pouvait poser problme constitutionnellement. La dure du mandat doit tre dtermine par

les partenaires de la fdration, non par le parlement ou les tribunaux.

Sur les exigences de proprit, le Qubec est dans une situation particulire. Si on abroge la qualification

on retirerait loption au snateur de possder sa qualification foncire dans son district. Il faudrait un

amendement sous 43.

Sur labolition, ce serait une modification une institution fondamentale, ce qui aurait un effet sur les

comptences et obligations des acteurs constitutionnels. Ce serait une modification radicale du pacte


15/41

fdratifs, ce qui ncessiterait le plus haut degr de consentement provincial. Cest une composante du

Parlement. Cest aussi une modification la formule damendement. Ce nest quune formalit. 47

permet de passer outre, mais pas nimporte comment. Labolition du snat fait disparatre 47 toutes

fins pratiques.

Wagner : le rle du snat envisag la confdration tait de faire contrepoids aux communes quoiquil en soit, quelle est la place des premires nations?

La Cour a dj dit que les formules damendement comportent toutes les garanties pour les droits des

minorits. On peut modifier le snat en suivant la formule constitutionnel. Ce nest pas parce que cest

difficile quon peut les court-circuiter. Le dbat nest pas sur l-propos de la rforme. Cest le propre

dune constitution que dtre difficile amender.

Argument subsidiaire : modification la charge du gouverneur-gnral via la restriction du conseil du

PM

Lebel : peut-on abolir le snat en rduisant nant ses pouvoirs?

a serait faire indirectement ce quon ne peut faire directement

Lebel : que veut dire les pouvoirs?

Il tait dj question dun snat lu. Si le snat est lu il faudrait modifier les pouvoirs. On pourrait

enlever le pouvoir dinitier les projets de loi. Ou au contraire donner le pouvoir de faire les projets

financiers. On aurait pu, comme dans laccord de Charlottetown, donner le pouvoir dentriner les

nominations. On essaie ici de faire une modification la pice, mais cest plus facile comprendre dans

un contexte global

Karakatsanis : est-ce quon peut tout enlever sauf les pouvoirs en matire constitutionnelle?

Non, on naurait plus rellement un parlement compos de deux chambres.

On ne peut pas tirer de conclusion de la non-nomination de snateurs lus en Alberta. Il ny avait pas de

loi ce moment-l. Maintenant il y en a une et le PM devrait sy conformer, il pourrait y avoir des

contestations judiciaires.

Il y a eu 8 projets de loi pour rformer le snat, mais aucune confrence constitutionnelle. Ce nest pas

parce que cest difficile quon peut y obvier.

***

Nova Scotia

Meaningful provincial consultation required.

Function of the Senate: sober second thought, and regional representation. These purposes have

endured relatively intact since confederation.


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17/41

***

Manitoba:

Stress the importance of federalism and the interest of the provinces; respect for federalism requires

consensus for fundamental change; amending formula is to be understood in light of federalism. The

question is whether an amendment affects the provinces. If does, substantial provincial consent is

required. Federalism helps us interpret 44, although not beyond that.

On term limits: this turns directly on the interpretation of s 44. On its face, it might countenance term

limits, but that would ignore history and be absurd. In the Upper House reference, provinces

successfully defended against broad interpretation of 91 1. We urge the same interpretation of s 44.

Senate terms affect independence. Independence obviously doesnt mean apolitical. What it means is

an ability to choose to be apolitical. And we have seen that in the Senate. Individual senators have

exercise their independence, to vote their conscience, whereas in the HofC conscience votes are limited

to free votes. Term limits mean that senators will want to curry favour with the PM.

Abella: renewable or not?

Yes, because you need to think of something afterwards

Abella: what about administrative tribunals, are they not independent?

They are not a part of our Parliament, they are fundamentally different

Abella: but is their independence in question?

Administrative tribunals are not necessarily independent, and term limits affect the public perception,

including of independent tribunals

The AGCs interpretation of s 44 leads to absurd results. The Charter provides for elections every five

years, but on a literal reading of 44, Parliament could change that on its own.

This is not about whether term limits a good idea, but about who gets to decide.

Abella: but we do have to look at whether term limits will affect the powers of the senate

The question is whether it affects the provinces interest in an independent senate, and term limits by

definition do that

On election: Ill accept Canadas consultation claim at face value. BUT they are consultation by

elections, which makes them different from consultations with, say, social groups. We can have those,

but not consultative elections. Elections are fundamentally different. Even non-binding elections would

lead to a hodge-podge of appointed processes; some senators would be appointed after winning an

election, others after losing, some who never ran.

CJ: so, whats wrong with diversity?


18/41

The acts speak of appropriateness, of preference for election. It would be a chamber of unequals.

CJ: but they each have one vote

Sure, but not the same legitimacy authority; what is the public going to think, and what are the senators

themselves going to think? From the provinces persepctives, what if the PM chooses not to appoint a

provinces senator, does it mean that it is second-class? It is perception more than reality, but

perception matters. Now it might be that we can live with the hodge-podge, but provinces would have

to agree to that.

Rothstein: is it 42 or 38?

Good question. Term limits affect powers so its 42. Consultative elections, Ill accept that it doesnt

change the method, but it changes the character of the Senate, so it again affect the powers of the

Senate under 42. Powers means the fundamental power to be an independent body and provides sober

second thought and represent regions. It doesnt include their power in the amendment process though

Abella: do Senators now represent regions?

They have no obligation to take any particular position. They have the ability to speak independently.

Cromwell: should 42 be interpreted broadly because it deals with essential characteristics? What is the

interpretive principle youre advancing?

First you consider 44, then you consider 44, and then you look at 38 and 42, reading 42 quite broadly, to

reflect the fundamental characteristics of the senate On the question whether you take away all

powers except power in the amendment process, no, you cant allow the abolition of the Senate

through the back door. There is a line that you cannot cross, and thats not the intention of the

amending formula.

On the fact that abolition was on peoples minds: the provision is written in such a way as to presume

the existence of the Senate, even in a new form, or under a new name, not its abolition.

On property qualification: you can get rid of it but not raise it; you cant make it elitist?

Rothstein: is it not the whole idea in 1867?

Living tree!

Rothstein: whatever works?

Welcome to the law! But seriously, the living tree is not only judicial decisions, but also in how the

constitution evolves

On aboriginal role: at the end of the day, legislatures represent everybody. In the case of Manitoba, it

was an aboriginal person who stopped us endorsing Meech lake.


19/41

***

New Brunswick

Historical context matters most for the small provinces. The Senate was a key component of the

Agreement in 1867. Agreement means that there was compromise, give-and-take. For us, Senate is a

crucial element of representation, we have relatively many more seats in the Senate than in the

Commons. In 1981, our core interests were no different from 1867, we needed a voice, but we had the

benefit of the upper house reference in 1980, when the court acknowledged the senates role and

recognized that Parliament could not unilaterally alter essential characteristics of the Senate.

Many have said part V is the codification of the courts 1980 decision. So where does tenure fit in? Court

commented on tenure in 1980. So where does it fit in in 42? People have debated whether its powers

or method of selection, But the fallback position or indeed the starting point is 38. Its the first provision

of Part V. It illustrates the importance of compromise. If you cannot put a proposed reform within 42,

you look to 38 before 44. On term limits and elections, we say they impact on the provinces, they were

addressed directly or indirectly in 1980, 42 tried to codify that, but they are so important that if 42

doesnt get to it, its 38.

On abolition, much has been said about 41e. Its atrap to think there can be no unanimous consent.

There is no immunity to amendment, these items can be amended, its not easy but not impossible. The

continued existence of the senate is implied throughout part V, its a core feature of the amending

process. It would be a roundabout way to say that abolition was considered and put into 42. You cannot

just take away the powers and reduce the institution to an empty shell. 7/50 is a troublesome possibility

for NB, because senate could be abolished without the consent of NB, NS & PEI, which are a division,

which are the provinces the senate was specifically designed to abolish. You could also have major

reform w/out BC, Alberta and Saskatchewan.

CJ: But thats an argument against the s 38 fallback, which was inspired by the basis on which Patriation

happened. What you say is true but that it doesnt help us decided.

38 is the fallback, but not for items in 41, and we say that abolition is.

Moldaver: but in 1982, Newfoundland was there, and then you could not get to 7/50 if the four Atlantic

provinces are united. So do we look to 1867 or 1982?

NB supports Senate reform, and when it comes to abolition its about the process, we say its under 41

Lebel: we are forgetting that we now have 11 provinces

Sorry?

Lebel: we are forgetting that we now have 11 provinces

Correct. *Silence+


20/41

In 7/50, you win some, you lose some, thats the compromise on which the federation was built. But

abolition is a different thing, it cannot be done without the consent of a province.

***

BC

Reference is not about merits, but about whether feds can change Senate unilaterally. Term limits

impact the powers of the Senate and the method of selecting. Same for the consultative process. It is

achieving indirectly what s 42 prevents. For abolition, unanimity not required.

Feds read 42 1b very narrowly. Provinces equal partners in confederation. Senate protects sectional and

regional interests. Bargain struck at confederation: colonies relinquish many of their legislative powers,

but the common parliament would allow airing of regional views in the Senate

CJ: Weve heard that I dont know how many times. What new do you have to bring?

The bargain is very important and still is

CJ: But there were important meetings around 81. It would be more helpful to talk about that

BC underrepresented, BC people want a voice in the Senate and about what happens with respect to it.

We have a law that says we must have a referendum before legislative resolution on constitutional

amendment. We also have a law that provides a framework for electing Senate nominees.

Wrt interpretive principles, broad and purposeful interpretation, federalism, balance between centre

and regions. The constitution must be difficult to change for the sake of certainty, but also have some

flexibility. Matters essential to the character of the federation require unanimity, which is a change from

before Patriation. These matters were specifically chosen.

Abella: to what extent do we take into account what went on in 82 between provinces and feds?

You have to take into account what was decided

Abella: but what when abolition of an institution, which was not mentioned?

Wrt to living tree versus originalism, in 82 they made specific choices about what to prune from the tree

and what to graft to it. The amending formula does not contemplate abolition of the senate, or the

HofC, or the Queen. So the parties did not contemplate it, but they created a catch-all in 38.

Abella: but the argument goes both ways: they didnt contemplate it so it goes into 38, or they didnt

contemplate it because its too fundamental and so should require unanimity

Yes, thats why were here

Lebel: does the abolition impact the amending formula?

Collaterally, but not in pith and substance


21/41


22/41

Abolition is not listed in 41, so its either such a fundamental change that its not contemplated or its s

38.

CJ: Can you help us any further?

Not really

Cromwell: can you abolish the House of Commons under s 38

Theres a refence to seats in HofC in 41

Cromwell: but that would just be spent?

Yes

Cromwell: so you could abolish Senate and HofC under 38?

Yes

Important to keep in mind that there can be consultation w/ provinces outside legal requirements for

consent. Thats why theres the regional veto act, BC referendum legislation, consultation w/ territories.

In the context of legal requirements, there is this process You can reads 44 as permissive, nothing

prevents consultative process even for amendments under 44. BC says feds shouldnt decide unilaterally

whats best for the country

CJ: thats pretty clear to us by now

Conclusion: its about amending formula

***

PEI

AGC did not place enough importance on context. QCCA starts w/ context. Thats the proper way to

begin the analysis. Not 82, but 150 years ago. What emerges from that is the importance of federalism.

This is the central organization theme, the lens through which you make sense of the provisions of part

V. Federalism is the lodestar. There are two sovereign orders of government, not one subservient to the

other. Federalism is a balance between centre and regions.

Senate was a big deal. Small provinces were very concerned about being overwhelmed, and were at the

table. Now we feel like were not even allowed in the room nor are other provinces.

CJ: Under 44. They say on abolition it takes 7/50. Youre in the room.

Im in this room. But Im talking about 44. The Senate is the provinces house. We feel like our house is

under renovation without our consent.


23/41

Rothstein: arent you overstating the case? The question is how do we decide what can and what cant

be done unilaterally?

History and federalism give you a lens. Upper House Ref gives you a lot. The issues and argument were

very similar. 44 is the successor of 91 1. Restricted scope of 91 1 leads to restrictive interpretation of 44.

Rothstein: theres water under the bridge. How does Patriation affect Upper House Reference?

A lot of water. But it doesnt magically transform 44 into something broader. It was viewed as the

successor of 91 1. If you argue that something that was restrictive is now broad, you need some

evidence of why its changed. But there is nothing tosupport the proposition here.

On term limits: they fall squarely under 42 1b both as powers of the Senate and selection mode. AGC

urges very narrow view of powers. We have to take it in its ordinary meaning. Its about doing your

job in a an effective way. Theres no evidence on effect of term limits. But we have some evidence from

the US about how term limits there affect the authority of those subject to them. Losing the deans of

the senate, people with expertise in procedure

Abella: but in the American example there is re-election. But here you wouldnt

It still impairs independence because you still look for something to do after, and you have constant

turnover. Powers is a broad term.

CJ: When constitutions says powers they mean what an institution can do. But I take your argument.

Term limits also affect method of selection. They constrain the discretion of the PM. [why? Missed due

to connection problems.]

On abolition: being 7thits difficult to come up withsomething interesting to say. We cant say whyabolition of senate or other key institutions wasnt specifically contemplated. But theres 41e. Senate is

in Part V

Cromwell: you said powers is broad why doesnt it include no powers

Thats doing something indirectly that you cant do directly. As Rothstein J said its a workaround. You

cant abolish the Senate by a slight of hand.

Moldaver: could senate be reduced to say 20 people under 7/50?

No yes

Moldaver: could the power to take veto legislation be taken away?

Yes

Moldaver: so why cant you then take away their power to veto amendments

Its covered under 41e


24/41

If you consider context and federalism, provinces have an interest. Consultation is required.

***

Saskatchewan

First assessment of how part V should operate in 21stcentury, in a way that reflect federal and

democratic principles. Sask LA unanimously calls for senate abolition.

Essential character of the Senate must be maintained. Non-renewable term ensures independence. Two

terms of Parliament does it.

On consultative elections, Parliament can enact these under POGG. They are analogous to a consultative

referendum, they do not change the constitution, they dont bind PM or affect GG.

Can abolish property requirement. Can abolish senate under 7/50.

On general interpretive approach:

1. Part V is a complete code, exhaustive code of all future amendments, see 53 3. All previous legaland conventional mechanisms are exhausted. There is no external mechanism, it cannot be

added to or deviated from on the basis of principles. There are no gaps there

2. Part V is unique. In part V con law intersects w/ politics. Be sensitive that unanimity is verydifficult to achieve. Compromise is the norm. There has to be a presumption for less than

unanimity. In Patriation and Qc veto reference court endorsed that. This approach is carried

forward in s 38.

Moldaver: but what happened in 82 would be covered under part V

Yes

Moldaver: so unanimity would be required

Yes, but thats a change

Karakatsanis: so where does the right to vote fit? Right to vote isnt mentioned in part V, so how do we

deal with that under your complete code? Can right to vote be abolished under 7/50?

Yes

Lebel: Canada could be turned into a dictatorship under 38?

In the very unlikely circumstances

Lebel: Were asking theoretical questions. But it shows your approach allows very fundamental changes

to be made without unanimity


25/41

Yes. Thats what is contemplated. Im sure our participants in the confederation would not contemplate

removal of right to vote

Lebel: arent some constitutional amendments so fundamental that they could not be done without

absolute unanimity?

Unanimity provisions are very specific. Unwritten principles do not add to the list

Lebel: but they can tell us what are the basic elements of our constitutional system

It would be a very long stretch to imagine

Moldaver: if talking about theory, Canada could dissolve completely

Yes

Abella: you say part V is a complete code, but then that it couldnt have been in the intention of the

framers to contemplate abolishing elections. So if we conclude that they didnt contemplate abolishingthe Senate, how does that work?

Unless it falls within 41, and abolition of the Senate does not, you use 38. 38 gives enormous amount of

participation to provinces

CJ: give us the rest of your principles

Yes.

3. Part V incorporates federal and democratic principles. You dont need to enhance its text on thebasis of these principles. The purposive interpretation of part V is heavily textual.

Abella: what do we do with the fact that the Senate has a role in amendment?

Later

4. S 38 is not a default or residual formula. Its the starting point. Other provisions derogate fromit. Its a provision of general application. Any gap is filled by s 38.

5. S 42 is not a different amending formula, its a roadmaps, a clarification of how 38 operates.6. Unanimity is a derogation. 41 is exhaustive, should be narrowly construed, only when a

proposed amendment clearly falls within its scope.

7. Starting w/ s 38 affects the whole analysis, its not just a nuance. If you start w/ 41 you mightgive it a broader reading than is warranted. Framers intended most fundamental changes to be

possible under 38. All provinces have a voice under 38, although not a veto. The Atlantic

provinces together could stop an amendment.

Cromwell: are there s 38 amendments that do not fall under 42 but are not subject to opt out?

38 clarifies what is subject to opt out. 42 1 and 42 2 are additional clarifications


26/41

Cromwell: so abolition of HofC not subject to opt out?

Thats right

Rothstein: did I hear you say HofC could be abolished under 38

Cromwell: that was assumption built into my question

Ill change my answer: s 41 protects membership in HofC

Abella: s 38 says amendment has to be by resolution of senate and HofC; procedure fundamentally

relies on the senate; so are we not amending part V by taking the senate out of it?

I would say not. If you closely read the text, the answer is more obvious, though not free from doubt.

Term powers in 42 involves both legislative and constitutional powers.

Abella: so why does 38 mention it if it can be so easily removed?

Lebel: there is a specific role for the senate in the amending formula

It says there should be a resolution, but powers of the senate are referenced in 38 [42?]. 42 authorizes

amendments to SCC except composition. If they were going to exclude powers of the Senate on

constitutional matters, they would have made powers subject to 41e.

Cromwell: is an alternate explanation that the discussions assumed the continuance of bicameralism?

Its hard to say. We shouldnt assume that the moment the senate is gone, its the end of bicameralism.

Lebel: it would be for a time

Thats how a country evolves.

On consultative elections: this does not amount to a constitutional amendment. Its really a consultative

referendum to determine suitable nominees. 1. There was emphasis that it used the infrastructure of an

election. But just because it walks like an election and quacks like an election its not election. Thatsjust

a practical solution. It doesnt change the nature of the process. 2. PM is not mentioned in the

constitution. The important thing is that it doesnt bind GG. 3. On electing judges: there are differences

between recommendations for a political office and nominations for judicial office. You probably

couldnt elect judges, but here its a political office, its appropriate

Abella: what would it take to create a new upper house?

7/50. We patriated the constitution w/ less than unanimity.

***

Alberta


27/41

In relation to abolition, we adopt Saskatchewans submissions.

On consultations: main interpretive principle: primacy of written constitution, identified in the Secession

ref., to foster predictability. Constitution similar in principle to UK dont start w/pre-conceived notion

of what that looks like. In 1867, House of Lords included hereditary, ecclesiastical, and elected lords. In

Act of Union with Ireland the House of Lords was to include Irish lords, included rotating Lords Spiritual,and 28 Irish Lords to be elected. The elected aspect of the peerage then disappeared, but it was there in

1867. So our senate might also be able to accommodate a hodge-podge.

Abella: what do we make of s. 17?

I only meant to say that the House of Lords isnt too much of a model for the Senate

We say Canada could pass c-7 and c-20 unilaterally under s. 91. They are not amendments to the

constitution of Canada. S 42 is only concerned with amendments to the constitution of Canada. So

what does the constitution of Canada actually say about method of selecting senators? Bill c-7 only says

pm must consider. C-20 doesnt even say that. The constitution, s 24, says GG shall summon qualifiedpersons. Thats all it says about method of selection. Nothing in either bill affects that. The GG will keep

summoning qualified people. Nothing affects the fact that GG gets names from the PM.

Abella: could GG summon someone not submitted by PM?

Theoretically, but its never happened. So what the argument is is that the bills will change whatever

process, we dont know what it is, by which PM submits names.

Abella: but the election constrains the discretion of PM?

Thats not what our experience has been

Abella: but thats because your elections arent under something like c-7 or c-20

Under c-20 PM just gets a list. Under c-7, pm has to consider, should select from the list but doesnt

have to. The anticipation of Albertans is that theyd be considered, but we know its not automatic

selection.

Rothstein: do you say method of selecting senators only refers to s 24, the GG process?

It may also refer to the convention that GG appoints people submitted by PM, but this doesnt affect

that. So its very different from upper house reference, which was about direct elections.

Albertas legislation is substantially similar to that contemplated by bill c-7. Its an election, its an

election to a list, with the expectation that the people on the list will be considered

CJ: so youre saying Alberta will get greater control, and so control the PM

Provinces have great interest into who represents their interest. But the control is still with the PM


28/41

CJ: but you hope it will effect a change to how our confederation works

We hope so

Abella: would your argument be different if these elections were taken to be determinative?

Yes, our position would be different. But thats not what is happening. If the governments cannotconsult the electorate, then you constitutionalize the current situation whereby provinces and people

have no input into who sits in the senate.

***

NL

Dont take narrow and literal view of part V.

Term limits: we agree w/ Qc and NS. We agree that retirement age was housekeeping, and proposed

amendment is not.

WRT elections we rely on Qc oral submissions. Elections affect selection. People know senators are

appointed by pm. Notion that pm would not be bound affects democratic principle, possibly the ROL.

When we joined confederation, we bought into the bicameral structure. Almost all federations have

upper houses. Continued existence of the senate is presupposed in amending formulas. Abolishing it

changes the amendment process. Being a small province, we have greater risk of being left out.

You cant judge the success of amending formulas on the number of times theyve been used.

***

Northwest territories

Unanimity for abolition, and we would add that the feds have to consult territories. We have a senator,

and taking it away from us requires consultation. The amending formula seems to exclude territory

residents from amendment process. Parliament undertook to legislate for the good of the people of the

territory. That undertaking is incorporated into the constitution. Now we have responsible government;

we will have authority over land and resources, and so substantially the same authority as a province,

but w/out constitutional status. We have limited constitutional recognition. The government of NWT

can speak on constitutional reform. We voted in 1992 on Charlottetown. There is a convention that feds

must listen to us. Part V doesnt say so, but every citizen benefits from the constitution. NWT might loseits senators without being consulted. Some mechanism is needed to give us ability to participate.

Constitution should be read purposively. Living tree should recognize the evolution of NWT. Canada

must consider, as it undertook in 1867, to consider the best interests of the NWT. Democracy is an

essential interpretive principle. Narrow reading of amending formula excludes small but no less

important portion of Canadian population. It would be inconsistent with the democratic principle.

Charter provides right to vote for Parliament; we should also have a say in constitutional amendment.


29/41

Wagner: but how does it work in practice with part V?

Its a living tree. We are very different from what we were in 82.

Wagner: yes, but how does that actually work?

You can impose an obligation for consultation.

CJ: Where does that come from? Duty to consult first nations comes from honour of the crown, it was a

legal foundation. Whats the foundation here? Is it the role of the Courts to impose this without a

juridical foundation?

There is a basis in the 1870 order by which the gvt of Canada committed to provide for good

government, and that includes obligation to consult.

The principle of protection of minorities requires Canada to protect aboriginal citizens of the territories

by consulting.

***

Nunavut

Agrees with Ontario, Qc, PEI, NS, Manitoba

AGC referred to explanatory notes to April accord. They are of assistance in ascertaining the intention of

the framers. The note says that aspects of institutions important for maintaining the federal-provincial

balance are excluded from unilateral amendment by Parliament. Says that provision is intended to

replace 91 1. So what court said about 91 1 in upper house reference is important. What affects fed-

prov balance was never meant to be captured by 44. It was not meant to be a plenary power.

Unanimity is not impossible. All governments agreed to Charlottetown accord. We can have unanimity.

Lebel: but then we had a referendum

That wasnt part of Part V (laughter) Lets forget about the referendum. Were talking about part V

(thumps the table). Meech Lake came close to unanimity. It would have repealed s 42 and folded

everything that is now 42 1 into 41. I find it interesting.

CJ(?): Interesting, but it didnt happen

It didnt, but its interesting that governments were considering imposing unanimity requirement.

Protection of minorities is important. In 1981 territories werent invited to attend meetings. But

territories have changed. As territories are more province-like, they ought to be represented. Nunavut is

the homeland of an aboriginal people. The vast majority of its population is aboriginal. Someday,

Nunavut will be a new province. In the meantime, we hope to be included in constitutional changes. We

as NWT said, we have a senator, we dont want to lose that.


30/41

Amending formula was the result of a compromise. Provinces wanted it in exchange for agreeing to the

Charter. It was a very expensive deal for the provinces. Proposed changes require provincial

involvement.

Abolition requires unanimity. Shortening the tenure diminishes the power and requires 38(1).

Disestablishment of the Senate is a fundamental change to the amending formula, the lawmakingprocess, and the constitution of Canada. Senate is an integral part of constitution and parliament itself.

***

FCAF

Arrt Hogan: formule damendement protgedroits des minorits. Lorsquon affecte les droits des

minorits, on devrait favoriser un consentement plus large pour que qqn puisse prendre la dfense des

minorits. Dans le renvoi sur la scession, il y a une obligation de ngocier, non-justiciable. On peut aussi

conclure quil y a une obligation, non-justiciable, de consulter les minorits affectes par un

amendement, de les inviter la table de ngotiations, comme cest arriv Charlottetown.

Sur les principes : il faut prendre en considration toutes les sources interprtatives disponibles. Il faut

faire attention lorsquon applique le principe de living tree. Larbre vivant ne peut transformer un

document. Ce quon vous demande de faire cest dcarter la formule damendement parce quelle est

trop difficile. De draciner larbre. Lhistoire nous apprend que (1) les participants aux discussions de 81

ont prsum quil y aurait toujours une chambre haute, mais rforme brve chance; (2)

entretemps, on a voulu interdire au parlement de modifier unilatralement les caractristiques

importantes du snat; (3) on a identifi ces caractristiques dans 42.

Intrts des communauts francophones : il y a une longue tradition de nommer des snateurs dun

bout lautre du pays, ce qui assure une meilleure reprsentation des francophones au snat quaux

communes, les lections ne reprsentant pas bien les minorits, surtout lorsquelles ne sont pas

concentres gographiquement. 42 1b a une fonction prohibitive. Il interdit les lections, que le PM

conserve sa discrtion ou non. Les politiciens de 82 savaient que la formule damendement devait

protger le fdralisme et les minorits. Ils savaient que la Snat jouait ce rle-l. Les objectifs de 42 1b

sont formuls en termes ngatifs, de prohibitions lencontre du parlement. En 80,le gvt fdral a

dcid de scinder les ngotiations, priorisant la charte et la formule damendement et repoussant les

sujets tels que le snat. Ds lors, il devenait important de spcifier comment la seconde tape se

droulerait.

Que veut dire mode de slection? Selon moi, tout changement la source de lgitimit politique. adtermine la manire dont les snateurs vont se comporter. Ici, cest une changement de lgitimit

politique que le parlement cherche oprer. O tracer la ligne? On pourrait avoir une loi qui cre un

conseil de sages qui recommanderait des nomination, parce que ce seraient toujours des snateurs

nomms, et non lus.


31/41

Sur labolition: avec 7/50 on pourrait abolir le snat sans laccord du Qc, NB, N, 3 des 4 partenaires

originaux, presque la moiti des siges.

Wagner : est-ce que a veut dire quon ne la pas contempl?

Oui, jy arrive. Jy arrive par 41e. Le fait quune institution est mentionne dans la formule

damendement cest quelles sont fondamentales et ne peuvent tre abolies quavec lunanimit. Sur le

plan des principes, la Cour a dit dans les annes 30 et 50 que certains principes taient trop importants,

labri du parlement. On pourrait appliquer le mme raisonnement ici. Le principe du bicamralisme

sert le fdralisme et la protection des minorits. Les rdacteurs de la formule damendement nont pas

envisag tous les scnarios extrmes. Mais on avait propos labolition de la monarchie, alors a

explique peut-tre quon y ait prt une attention particulire. Par contre, mme si le gvt fdral avait

pos la question de labolition du snat la Cour, labolition navait jamais t srieusement envisage

dans les ngociations avec les provinces. Tout le monde sentendait pour avoir une chambre haute. On

parlait de rforme, rforme radicale mme, mais pas dabolition. Les rdacteurs de la formule

rdigeaient en fonction des proccupations de lpoque. La rforme en tait une, pas labolition. De

mme quon na jamais pens abolir la chambre des communes, on na pas pens abolir le snat.

Wagner : vous avez rfr la thorie de lArbre vivant quil me fait plaisir de commenter lorsque je suis

autoris le faire. Comment est-ce quon lintgre avec les textes?

Les textes sont importants. On peut y superposer une obligation de consultation des minorits, mais une

obligation non justiciable.

Sur la dure du mandat : chaque fois quon discute de la dure du mandat en 80 81, cest un accessoire

du mode de slection. Si cest des lus, cest mandats fixes, si cest des reprsentants des provinces,

cest au bon plaisir de la lgislature. Donc la dure du mandat est attrape par une combinaison descaractristiques 42.

***

Socit de lAcadie du NB

Le Snat assure la reprsentation des minorits, y compris celles de langues officielles. Linstauration

dun snat lectif pourrait nuire au fonctionnement du snat cet gard.

Sagissant de lart 44, nous adoptons une interprtation tlologique. 44 cest le successeur de 91 1.

Jean Chrtien, ministre de la justice, avait prcis quil sagissait de questions de rgie interne. Le renvoi

sur la chambre haute ne permet pas de modifier les caractristiques fondamentales du snat.

Le snat a un rle fondamental pour ce qui est de la reprsentation des minorits. LC 1867 prvoit une

reprsentation des rgions. Les pres de la confdration voulaient que le snat ne reprsente pas la

population comme la Chambre des communes, mais les rgions. [Cite dbats pr-confdratifs qui parle

de la reprsentation de minorits linguistiques et religieuses.] Le Snat a donc rle essential, assurant la

protection des intrts rgionaux. Le maintien des droits des minorits tait la condition de lentre de


32/41

ces minorits dans la fdration. Le fdralisme est une rponse aux ralits politiques et culturelles du

Canada. La reconnaissance des proccupations des Canadiens franais tait au cur des proccupations

concernant les minorits. Depuis la confdration, les minorits linguistiques taient de plus en plus

reprsentes au Snat, et les snateurs en questions taient conscients de leur rle de reprsentant.

Changer le caractre du Snat en le rendant lectif affecterait la reprsentation des minorits. Leprincipe non-lectif devait permettre et a permis la reprsentation des minorits. Le projet de loi, en

crant des lections lchelle provinciales, dsavantagerait les minorits francophones et acadiennes.

La diversit de la chambre haute sera rduite. On aurait pu subdiviser le vote en district gographiques,

mais ce nest pas le cas, ce qui est contraire au principe de la reprsentation effective.

C-7 impose un cadre lectoral, qui ne tient pas compte de la reprsentation linguistique. La Charte

codifie lgalit des communauts linguistiques au NB. Ces dispositions imposent au gouvernement du

NB dassurer la reprsentation francophone au snat sil lgifre sur le sujet. Or, C-7 ne prvoit aucune

mesure en ce sens, et va mme contre-courant de ces obligations en imposant une lection lchelle

provinciale.

***

Serge Joyal

Its unusual for a member of the legislature to ask the Court to be heard in a reference of such a nature.

People are generally not aware of the Courts role of constitutional amendment. This court force the gvt

to shelve bill C-60, and led to the compromise of s 42. This court denied the existence of a veto but

forced the fed gvt to negotiate with the provinces. This court established the approach to take to an

issue not in the constitution, in the Secession reference. In all the discussion that took place in the

special joint committee on the constitution, nobody raised the issue of bicameralism. There was a lot ofdiscussion about monarchy because the PM of the day was suspected of being a republican. So the

office of the Queen was entrenched in 41a. It is the system of constitutional monarchy, wherefrom the

legislative powers are deemed to flow. That entrenches responsible government. This is the most

important principle of democracy. So when we are talking about removing one of the houses of

parliament, we are talking about changing the way our responsible government is entrenched. Also

when we talk about abolition, we do not at the same time talk about compensating the representation

of minorities.

On independence: it is entrenched at two levels. At the personal level, it is about a lengthy tenure. A

senator can refuse to go to a caucus, can decide to vote the way he wants. Senators vote against their

own governments, or introduce amendments to them, or delay them. In 1913, on the eve of the war,

the Senate refused to vote for the naval aid bill because they thought Canadians should vote on it. Same

with the GST. Once a person is appointed, he is out of reach of the PM, because there is no cursus

honorum in the Senate, you dont look for another appointment. Pre-confederation debates discussed

limited term appointments and worried that members would be under the influence of the executive.

If we accept the 9 year term, a PM like Trudeau would appoint all of the Senate. If there is a better way

to sabotage the institution, this is it.


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On property: in 1867, you had to have 500 pounds to run for the House of commons. Voters also had

property requirements. Its not just the Senate that was meant to protect the affluent, its the whole

system. Before abolishing the protection of the English minority in Qubec, we should have sober

second thought. Property qualification should not be divorced from the residence qualification.

Remember that a bankrupt person is disqualified from the Senate. This helps maintain the

independence of the institution. Same with the fact that the number of seats cannot be changed.

***

Senator Cools

Constitution is both a legal and a political document. The living tree keeps growing, but always from its

rules.

On life tenure: agree with Ontario and Manitoba on history of s 44. Whats the essence of the Senate?

Whats the current social reality of the Senate? Its the fact that Senators are unelected, and appointed

for life. A senatorial office is a life estate that cannot be taken away, except on breach of good behaviouras defined in s 31. In Wells the court said tenure concepts were anachronistic except for judges and

others holding life tenure. Agree w/ Joyal, Manitoba on independence. But independence is not all or

nothing. Life appointment is a common law and constitutional guarantee of independence for judges,

and also for senators. It was meant to be very independent. This has not changed with Patriation. The

independence of the Senate is not purely theoretical. Senate recently has stopped legislation. The

Senate is intended to act as a bulwark against the abusive exercise of authority by the government of

the day. The question isnt whether 9 or 10 years are enough independence, its whether youre

changing the nature of the senate. The existence of disagreement doesnt mean fed gvt gets a margin of

error it means the question should be settled in negotiation. Imagine if judges had 10 years tenure.

CJ: Youre talking about what the senate should be like, not how to change it

Its not just that. Its also about what the nature of the senate is and whether you can affect it by s 44.

The Senate cannot become a consultative body. Its an advisor to the sovereign, not to the House of

Commons.

Cromwell: does s 42 set out the matters that are essential in the sense of the Upper House Reference

No, because that judgment left open some questions, like tenure. You can draw from powers and

method of selection but you cannot change under 44 the essential character, which need not be in s

42.

On election: Canada says we know we cant have direct elections but we can do it indirectly. Thats

brazen, it goes against a century of this courts jurisprudence and the inquiry should stop here. But, s 97

and 98 mention selection as distinct from appointment. Selection is the process of choosing the person,

not just the formal appointment.


34/41

An election expresses the will of the people, not an opinion. Consultative election is really a

contradiction in terms.

***

Dean Jutras

Scope, content, and organization of Part V.

Mthode suivre: (1) sommes-nous en presence dune modification de la constitutionau sens de la

Partie V; (2) si oui, quelle est la formule applicable. Le renvoi soulve les deux questions.

La question des lections soulve la question (1). Si la rponse est affirmative, larticle 42 sapplique

clairement. Les autres questions soulvent plutt la question (2).

Lebel : vous traitez de la question de la dure du mandat et de la slection comme de questions

spares. Mais si on les considre ensemble?

Je pense que ce nest pas ncessaire de le faire

Donc, quest-ce quune modification au sens de la Partie V. Cest une question qui se posera dans le

renvoi sur la loi sur la Cour suprme.

La constitution, au sens de la partie V, est beaucoup moins large que la constitution telle que dfinie par

la Cour dans le renvoi sur la scession (qui inclut les principes etc.). Au sens de la partie V, cest une

modification des textes formels que ce soit par abrogation, changement ou ajout. Mais cest aussi une

modification au sens de ces textes, y compris de leur interaction, larchitecture de la constitution.

Quest-ce qui est exclu? Une modification la constitution politique, aux conventions, et aussi aux lois

organiques qui ne sont pas enchsses.

Wagner : et une consultation avec les premires nations?

Si cest politique, cest exclu de la partie V

Sur la slection des snateurs, PGC suggre que puisquon ne modifie pas les mots du texte

constitutionnel il ny a pas de modification au sens de la partie V. Mais puisquon ajoute des conditions,

on change le sens des mots, cest une modification. Supposons quune loi disait que le PM ne

proposerait au GG que des hommes ce serait srement une modification au sens de la partie V. Est-ce

que c-7 et c-20 seraient des restrictions au pouvoir ou la discrtion du PM? La cour devrait viter

daborder la question sous cet angle. Ce serait dire quune modification dune convention

constitutionnelle serait vise par la partie V. Ce ne serait pas opportun. Les conventions sont destines

tre flexibles, voluer, et il ne faut pas les empcher de le faire en les enchssant. Ceci dit, il est

possible que le mode de slection avec toutes ses composantes ait t enchss par la partie V elle-

mme. Largument cest que 42 1b ne visait pas protger que le pouvoir du GG, il faisait quelque chose

dautre, etil faut savoir quoi. Comme dans le renvoi sur la Cour suprme il faudra se demander que faire

des rfrences la CSC alors que la loi sur la cour suprme nest pas 52 2.


35/41

Lebel : la discussion sur les pouvoirs du PM ne se fondait pas seulement sur les conventions mais aussi

sur lassujetissement de la discrtion au droit administratif.

Oui, mais cest une autre question.

La solution prfrable cest de conclure que ce qui est enchss cest le statut non-lectif des snateurs.

Si on voulait les lections directes, il faudrait une modification non seulement parce quon changerait les

mots de larticle 24, mais parce quon changerait le sens.

Les projets de loi ne creraient pas dlections directes. Mais il nest pas ncessaire de dcider la mesure

de la pression sur le PM. Mais quoi quil en soit, comme le disait le doyen Grammond, un snateur

nomm aprs une telle lection serait un snateur lu.

Si cest bel et bien une modification, alors 42 1b.

Karakatsanis : et les projets de loi provinciaux?

a soulverait dautres questions

Karakatsanis : sil y a une loi provinciale, il y a un changement la source de lgitimit

Sil ny a pas de loi fdrale, cest un changement politique

Deuxime question cest une modification constitutionnelle, il faut donc dterminer quelle formule

sapplique. Cinq principes, qui se recoupent en partie avec celles proposes par la Saskatchewan.

La Partie V remplace les autres rgles de modification davant 82

Cest un code complet

Elle sinterprte comme un code (et pas comme la loi de limpt)

Un code sinterprte de manire structurelle

La classification des modifications tient compte du caractre vritable et des effets sur lordre

constitutionnel existant.

Partie V remplace les rgles davnt 82, cest un nouveau dpart. On ne peut tirer argument de la

dcision de la Cour nexigeant pas lunanimit. On a maintenant une formule qui inclut lunanimit. On

ne peut tirer argument de laccord de 1867 il ne veut pas dire quon ne peut faire de changements

fondamentaux sans unanimit.

Cest un code complet. Bien sr la constitution volue avec la jurisprudence et les conventions, mais il

ny a pas dautres faons de modifier la constitution formelle. Pour revenir la consultation des

premires nations, il faudrait une preuve dune ferme convention.


36/41

Un code complet ne doit tre interprt dune manire litrale. Cest un texte logique, cohrent, qui

sinscrit dans la dure, et qui permet datteindre un quilibre entre certitude et flexibilit. Corollaire:

cela diminue leffet des intentions des framers de 82.

Abella : un code ordinaire et un code constitutionnel sont diffrents sur le plan de linterprtation, non?

Il y a une dimension politique, et cest vrai que a aura lair trange dans 50 ans. Mais il limportant cest

que a sinscrit dans la dure et donc il faut se dtacher des intentions politiques. Le texte existe de

manire autonome par rapport aux intentions politiques, il ne faut pas recrer un nouvel originalisme.

2ecorollaire, il ne faut pas faire de linterprtation litrale. Jaccepte quil ny a pas de trous ni de lacune,

mais il ne sensuit pas quil faut linterprter litralement. La partie V ne peut tre change que par

amendement ou rinterprtation judiciaire. Il faut laisser les fentres ouvertes pour lavenir. Il ne faut

pas lire 44 par exemple de manire litrale. Il y a plein de choses importantes, dont celles quon a

voques hier, pas mentionnes dans 44, 42 ou 41. Il ne faut donc pas sen tenir trop au texte.

Mais il faut sintresser la structure du texte, de la partie V dans son ensemble, sa logique interne, its

animating principle. Quelle est cette logique? Il y a un principe gnral, rsiduel, 38, et des exceptions.

Ce qui ne relve pas des rgles particulires relve de 38. Cest en ce sens que la partie V est exhaustive.

44 est formul en termes rsiduels, mais exception faite de ce qui se trouve 41 et 42. Que sy trouve-t-

il? Il ne faut pas faire une interprtation trop stricte, mais chercher le principe sous-jacent. Le principe

de 41, cest les institutions fondamentales de lordre constitutionnel, qui exigent un veto. Cest une liste

tonnante, qui sinscrit dans le contexte politique. Monarchie constitutionnelle, protection pour les

petites provinces, protection du franais et de langlais, composition de la Cour suprme, et la formule

damendement elle-mme. Cest logique que a prend un veto. 42, cest les caractristiques

essentielles des institutions fdrales dans lesquelles les provinces ont un intrt indiffrenci, pas plus

une que lautre. Rep by pop la chambre des communes, examen serein et pondr et le reprsentation

au snat, cour suprme, modification des frontires et cration des provinces, qui est difficile

expliquer sauf si on ralise que a touche indirectement la formule damendement.

Abella : quand on parle des principes sous-jacents, est-ce que les intentions des framers sont

pertinentes?

Elles sont intgres la partie V elle-mme. On ne peut donner un sens 42 ou 38 sans tenir compte

du principe de fdralisme.

Moldaver : vous dites que 41b ne protge pas la chambre des communes, seulement le nombre de

siges. Peut-on abolir la chambre des communes avec 7/50?

Non, cest si fondamental quil faudrait voquer 41, que ce soit explicite ou pas

Moldaver : mais pourquoi pas avec cette disposition-l?

Sil fallait rdiger une protection pour la chambre des communes, cestpas ce quon ferait. Cest trs

insatisfaisant de dire que la protection du snat passe par 41e. Cest une modification fonadamentale.


37/41

CJ : on peut dire que les gens qui ont rdig la partie V se sont fonds sur des propositions de base

quon ne peut remettre en question, comme le bicamralisme, et lexistence de la chambre de

communes. Est-ce que quand on dit que cest un code complet, ce nEst pas un code complet sous

rserve de principes de base?

Oui

Lebel : les codes ont un avenir mais aussi une histoire

Oui

Are there any aspects that are beyond modification at all? You should not go there.

Wagner: pourquoi est-ce que 41e nest pas satisfaisant?

Techniquement, a lest, mais long terme, a ancre linterprtation de la partie V dans une lecture

litrale

Lebel : faut-il adopter une mthode qui va au-del des technicalits et considre limportance des

amendements?

Oui

***

Me Hunter

On pith and substance : it was mentioned in the context of an analysis based on the effects on the

existing constitutional order. Just a word of caution: it was developed in the context of federalism, and

carries the notion of incidental effects. There is no room for an aspect doctrine or incidental effects

here. You just have to look at effects: does the legislation amend the constitution. Consider the property

qualification issue: everybody says its no longer of constitutional significance. But to simply repeal them

would have an effect on 23 6 that only applies to Qc. You might think its an incidental effect, but you

need to be careful about it.

Abella: we also heard a great deal about the living tree. Do you have any thoughts about the relevance

of that theory?

Yes. We can look at what the framers intended in 1867, but what we have to consider is part V, and only

if elements from 1867 have a continued importance today would changes to them count asconstitutional amendments. So the property qualifications was important in 1867, but it is not now, and

that is why it can be changed under 44. We need to avoid tying the interpretation of Part V too closely

to the text.

On abolition: BC said abolitions impact on amending formula was collateral. That would make sense in a

federalism analysis, but not here. Here you have to consider the effect. Thats a complete answer to the


38/41

question of abolition. But a second answer, which is more about the complete theory of Part V, is that of

Dean Jutras, about the relative importance of principles.

Rothstein: should we focus on 41e?

On both. We say 41 is about the structure, the architecture of the constitution, so you dont have to rely

only on 41e.

Rothstein: its part of the architecture because its mentioned throughout part V?

Yes but not only also s 17, and elsewhere. We try to develop a method that does not only depend on

literal text but onlythe proposed amendments.

Moldaver: can you give a major facelift to the senate under 42?

Yes. But you couldnt abolish it or take away power on constitutional amendment.

On elections: the key point is that they are non-binding. We dont know whatwill happen politically. Butwe must only look at constitutional law. The first question is whether it will affect the constitution. I

address it as a generic question, can Parliament authorize non-binding elections under s 91? Would it

amend the constitution? If yes, Parliament cannot do so, it would be an amendment in relation to the

method of selecting senators.

Abella: does it depend on the role we give to unwritten principles? If the inten

Notes from the Senate Reference Hearing

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