The Harper government’s galling argument in the Senate reference

The government aims to change the amending formula by stealth
The thrones in the Senate Chamber are seen through the main entrance on Parliament Hill Wednesday May 22, 2013 in Ottawa. THE CANADIAN PRESS/Adrian Wyld
Adrian Wyld/CP

Yesterday, the federal government released its factum (set of arguments to the Court) on the Senate reform reference. Paul Wells already has a good initial take on the feds’ approach and I will be writing much more on this in the days leading up to the Supreme Court’s hearing in November. But I wanted to specifically comment on the Justice Department’s arguments about why unanimity is not required to abolish the Senate.

Whether it requires seven provinces or 10 to get rid of an institution many critics appear to regard as arcane or useless might seem like a relatively trivial legal issue. Yet the arguments presented throughout the factum, and on abolition especially, go to the heart of something much more important: if the Constitution is fundamentally about establishing the rules and structure for how our democracy and governing institutions function, the constitutional amending formula is about who gets to write those rules.

What’s particularly galling about the government’s factum is its attempt to reduce the text of the amending formula (Part V of the Constitution Act, 1982) to secondary or “incidental” importance, when in fact the amending formula is at the heart of the reference case.

Right at the start of the section of the factum on abolition, the government’s lawyers begin by flagrantly abusing the plain meaning of the constitutional text.

153. The abolition of the Senate by any of the methods suggested in Question 5 would not constitute, in pith and substance, an attempt to amend Part V of the Constitution Act, 1982, because abolition of the Senate is not a matter in relation to the amendment of the amending procedures. The changes resulting to the operation of those procedures would be incidental to the Senate’s abolition.

This statement is true only if you literally don’t read the amending procedures. I’m a stickler, so here’s the text of the general amending procedure, section 38(1), and the unanimity procedure, section 41. Note that I’ve added the relevant parts in bold to help the DoJ’s lawyers out:

38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by

  • (a) resolutions of the Senate and House of Commons; and
  • (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:

  • (a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;
  • (b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;
  • (c) subject to section 43, the use of the English or the French language;
  • (d) the composition of the Supreme Court of Canada; and
  • (e) an amendment to this Part.

Note 41(e): “Part” refers to all of Part V of the Act. Any changes to the amending formula require unanimity. The factum later acknowledges this, and things get a little more complicated when, as the factum points out, we see that the drafters provide for an effective veto in the event the Senate fails to pass a resolution on an amendment. From the factum:

162. The primary argument advanced by those who believe the unanimous consent procedure is necessary to abolish the Senate is that the abolition of the Senate itself constitutes an amendment to Part V of the Constitution Act, 1982 and therefore requires unanimous approval pursuant to s. 41.

163. The Senate is expressly mentioned in ss. 38, 41 and 43 of Part V. However, the Senate is not an essential actor in relation to any of the multilateral amending procedures in the Constitution. With the exception of s. 44 of the Constitution Act, 1982, the Senate has only a suspensive veto in respect of the amendment process. The absence of the Senate would not prevent the enactment of amendments under s. 38 (the 7/50 formula), s.41 (unanimity) or bilateral/multilateral amendments under s. 43.

164. That the concurrence of the Senate is not required for any of the major categories of amendments of the Constitution is supported by s. 47 of the Constitution Act, 1982. That section makes it clear that an amendment to the Constitution under ss. 38,41,42 or 43 may be made without a resolution of the Senate if within 180 days after the House of Commons adopts an authorizing resolution, the House again adopts the resolution.

This is a really interesting interpretation, in that it suggests all the references to the Senate in the amending formula are meaningless because section 47 allows the Senate to be overridden after 180 days. Except one could flip the logic here and suggest that the Senate is in fact very important to the amending formula—so important that the drafters took pains to include a separate clause requiring a full 180 days to pass before the Constitution can be amended without the Senate’s approval. “Incidental” indeed.

Other parts of the factum actually do a pretty good job of undercutting the “incidental” relationship the word “Senate” has with the amending formula’s text:

165. Even amendments under s. 44 of the Constitution Act 1982, which gives “Parliament” the power to amend the Constitution, do not necessarily require Senate approval. The definition of “Parliament” in s. 17 of the Constitution Act, 1867 could be amended (pursuant to s. 38) to remove the reference to the Senate, such that the Senate would cease to be a part of Parliament. That would not be an amendment in relation to the Part V amending procedures but rather, an amendment in relation to the composition of Parliament, and thus within the general amending procedure found in s. 38. The consequence of that amendment would be that the newly-defined Parliament (now consisting of the Queen and the House of Commons) would inherit any and all powers of legislative amendment under s. 44 of the Constitution Act, 1982. Thus, Part V is exhaustive both with regard to the reform of the Senate, but also with respect to its abolition.

By highlighting that section 44 refers only to “Parliament” and the definition of “Parliament” can be changed, the DoJ’s lawyers imply (accidentally, I assume) there is a substantive significance in the decision by the drafters to refer expressly and separately to “the Senate” in the other sections.

Other arguments in the factum are such a stretch of logic only Mr. Fantastic could follow them (Fantastic 4 anyone? He’s the guy who can stretch really far… OK, I’m sorry). Here’s the government’s entire argument for how these seemingly important references to the Senate automatically become “spent”:

160. The abolition of the Senate by means of the general amending procedure found in s. 38 of the Constitution Act, 1982 would not constitute, in pith and substance, an amendment to the amending procedure. Any provisions that mention the Senate that might remain in the text of the Constitution would be spent. Precedent for this is found in relation to the abolition of the upper house of the Quebec Legislature. Section 71 et seq. of the Constitution Act, 1867 still refers to the “Legislative Council of Quebec” even though that body was abolished by the Act respecting the Legislative Council of Quebec, S.Q. 1968, c. 9.

I have already outlined why, in pith and substance, “abolishing” the Senate constitutes an amendment to the amending formula. The feds’ example of the upper house of the Quebec legislature would be a great one if it was mentioned in the amending formula. It is not.

More hand-waving abounds throughout the factum:

157. … The general amending procedure could be used to realign the distribution of seats in the Senate and remove the legislative “powers” of the Senate. The removal of these key features of the Senate through the general amending procedure strongly suggests that the Senate could be abolished using that same procedure.

Again, this is only convincing if  you ignore the text of the amending formula. It is true that the general formula can gut the Senate of its powers. At a minimum, however, this would impose a 180-day delay on all future amendments by virtue of section 47. The federal government’s argument that these provisions become “spent” belies the plain language of the Constitution and subjugates the amending formula—how we decide who gets to change the country’s supreme law—to a subordinate, incidental role.

I’m agnostic on Senate reform or abolition. What I find offensive about the government’s factum is that it constitutes a blatant attempt to change the constitutional amending formula by stealth. The Supreme Court would be irresponsible to allow it.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role, was published in 2013 by UBC Press.