Three key points from the Supreme Court’s Senate-reform guidebook

Today’s landmark Supreme Court of Canada conclusions on what would be required to reform the Senate runs to 55 carefully phrased pages in English, plus an appendix. But three three crucial parts stand out.

1. Avoiding deadlock between the House and Senate

The federal government wanted to implement so-called consultative elections for senators. Its lawyers argued that since a prime minister would still be allowed, at least in theory, to reject the outcome of these elections and appoint somebody else, the mechanism didn’t really amount to a constitutional change.

The judges didn’t buy it. They noted that elected senators would inevitably behave differently from the old appointed kind, who by convention had to do what the elected MPs in the House wanted. “In summary, the consultative election proposals… would amend the Constitution of Canada by changing the Senate’s role within our constitutional structure from a complementary legislative body of sober second thought to a legislative body endowed with a popular mandate and democratic legitimacy.”

2. Limiting terms equals limiting Senate independence

The federal government hoped to limit senators to nine-year terms, and argued it could make this change (senators now serve until they reach age 75) unilaterally. The government’s lawyers pointed out that nine years is about the average term historically served by senators anyway.

But the court decided the change could still alter the Senate fundamentally by making senators less independent, and thus requires consent of at least seven provinces representing at least half of the population. “The very process of subjectively identifying a term long enough to leave intact the Senate’s independence engages the interests of the provinces and requires their input,” the judges wrote in their unanimous conclusions.

3. Abolishing the Senate can’t be achieve by an imaginative trick

One of the most inventive arguments made by the federal government’s lawyers had to do with the prospect of abolishing the Senate outright. Making fundamental changes to Canada’s constitutional architecture requires the unanimous consent of the federal Parliament and the provinces—an very high bar to clear.

But changing only the powers of the Senate and number of senators requires only the agreement of at least seven provinces representing 50 per cent or more of the population.So the federal lawyers argued that abolition would, in effect, just amount to taking away all the Senate’s powers and eliminating all its members, thus requiring only that more attainable seven-and-50 amending formula.

Not surprisingly, the judges found that argument lacking. “Abolition of the Senate,” they wrote, “is not merely a matter of ‘powers’ or ‘members’… The mention [in the Constitution] of amendments in relation to the powers of the Senate and the number of Senators for each province presupposes the continuing existence of a Senate and makes no room for an indirect abolition of the Senate.”