The Supreme Court’s Senate decision is about more than the Senate

Prof. Adam Dodek says the Supreme Court’s Senate reference ruling is a clear, decisive guide to constitutional amendments

<p>Governor General David Johnston delivers the Speech from the Throne in the Senate Chamber on Parliament Hill in Ottawa, Friday June 3, 2011. THE CANADIAN PRESS/Sean Kilpatrick</p>

Governor General David Johnston delivers the Speech from the Throne in the Senate Chamber on Parliament Hill in Ottawa, Friday June 3, 2011. THE CANADIAN PRESS/Sean Kilpatrick

Sean Kilpatrick/CP
Sean Kilpatrick/CP

The Supreme Court of Canada’s decision today in the s0-called Senate reference case is being reported, quite correctly, as having put the brakes on Prime Minister Stephen Harper’s bid to unilaterally overhaul the upper chamber.

But the judges’ unanimous conclusions on how the Senate might be reformed—and how it can’t be—will also stand as a landmark in clarifying how Canada’s Constitution can be amended. University of Ottawa law professor Adam Dodek, a close watcher of Chief Justice Beverley McLachlin’s court and author of The Canadian Constitution, spoke about those wider implications.

Q What surprised you about what the court delivered today?

A What’s surprising is both the clarity and the decisiveness in which the court sets out the fundamental rules of the game for amending our Constitution.

Q Did you think it would be more convoluted, or they would have fudged on some points?

A No, but this was a case that took two and a half days of argument, hundreds of pages of documents, where the federal government put at least eight questions to the court with various sub-questions. So the court succeeded in taking something that was very complicated and multifaceted and coming up with a very clear framework, which they marched through.

Q It’s like a guidebook that even a non-lawyer can understand.

A The court boiled it down. I mean, amending the Constitution is quite complicated. There are five different formulas. Some previous courts have said it’s a multiple-choice test and you figure out which one applies. Today the Supreme Court said, no, there’s a default formula—that’s the federal government and the provinces working together—and for any departure from that you have to make a special case as to why one of the other procedures would apply.

Q So, that default position is the federal Parliament with at least seven provinces representing at least 50 per cent of the population. And the other procedures include cases where Ottawa can amend the Constitution alone and those requiring unanimity among the federal and provincial governments.

A Yes.

Q So this decision isn’t just a blueprint for Senate reform. It extends to other potential constitutional change.

A Absolutely. This is the first case interpreting the amending formula since it was enacted in 1982. It clarifies the framework for how you go about applying those rules to amend the Constitution.

Q Can you offer an example. What do you know for sure now that we weren’t so clear on before?

A I would think that elements of the Charter of Rights and Freedoms might be an example. The Charter isn’t mentioned in the amending formula. It’s possible that the federal government could make arguments that on amending some aspects of the Charter, it should be able to proceed unilaterally. After today, the default is going to be the federal government plus seven and fifty, and you’ve got a heavy burden to show how it fits in any other amending formula.

Q Talking about it this way makes it sound so technical, but the judges really didn’t write in a way that’s bogged down in that stuff.

A Yes, the court really talked about values and purpose.