What did the Quebec Court say about Senate Reform?

by Jennifer Smith

The Context

Bill C-7 contains the Conservative government’s scheme to reform the Senate by establishing nine-year, non-renewable terms for senators and by encouraging the provinces to hold Senate elections, the winners of which would be nominated to sit in the Senate by the prime minister.  The Quebec Court of Appeal has determined that Bill C-7 is completely unconstitutional.

Three things to know about the Quebec Court’s opinion:

 1.   According to the court, since each aspect (term and consultative elections) of the Conservative government’s scheme to change the Senate affects the powers of the institution and the method of selection of senators, Parliament cannot legislate the scheme on its own. It must involve the provinces.

2.  The constitution helpfully stipulates that amendments to the powers of the Senate and the method of selection of senators require the agreement of Parliament and the provincial legislatures of two-thirds of the provinces that, taken together, include 50 per cent of the population of all the provinces.

3.  The abolition of the Senate must meet a more onerous test, namely, the agreement of Parliament and the provincial legislatures of all of the provinces.

Three misconceptions revealed by the opinion:

The court also buries some misconceptions that many people hold about the Senate and Senate reform.

Myth #1:  The Senate is an unimportant institution of federalism.

The reality:  On the contrary, as the court points out, the Senate was a condition of Confederation, a fundamental component of the federal compromise of 1867. It was put together with great care.

Myth #2:  The Senate is unimportant as a house of Parliament.

The reality:  Not so, says the court, pointing to its mandated role in the country’s legislative process as well as the function of regional representation.

Myth #3:  Abolition is a convenient solution to the problem of Senate reform – just get rid of it!

The reality:  Abolition is the unlikeliest of options precisely because, according to the court, it would require unanimity, the highest threshold of agreement imaginable.

From a layman’s perspective, the message here is that the Senate of Canada belongs to all of us. It cannot be treated simply as a pawn in the game of partisan politics. The reform of the Senate must be a national project.

Jennifer Smith is professor emeritus, Department ofPolitical Science, Dalhousie University.  She edited The Democratic Dilemma: Reforming the Canadian Senate, 2009.