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2.01.2010

Renewing the Upper Chamber in Canada

The Canadian Prime Minister has recently appointed a slate of five new Senators to the Upper Chamber.

Two things are significant about this latest round of Senatorial appointments. First, the governing Conservative Party now holds a plurality of seats in the Senate after spending years in the wilderness of minority status. Second, the prospect that the Conservative Party could soon control a majority of the Senate has persuaded the opposition Liberal Party to fall in line behind the Conservative proposal to establish term limits for Senators. Canadian Senators currently keep their office until age 75.


But the Liberal Party has proposed something further than term limits alone to renew the Canadian Senate. The Liberal leader, Michael Ignatieff, has endorsed a 12-year renewable term for Senators, but with a wrinkle: "I'd even go so far as to limit the prime minister's prerogative to appoint senators ... I would pass it through a public service appointment commission so we scrub it and get the best possible appointees."

This reform plan raises an important question of Canadian constitutional law: May the Prime Minister waive her constitutional duty, which she discharges through the Governor-in-Council, to appoint Senators?

The answer, I think, is no. 

For to restrict the prime ministerial power to appoint Senators would be virtually to divest the Prime Minister of the plenary appointment power she enjoys under the Canadian Constitution Act of 1867. And this would effectively constitute an amendment to the Canadian Constitution.

Scholars of Canadian constitutional law will surely be familiar with the troubled history of the enduring debate on Senate reform in Canada. If that debate has taught us anything, it is that these kinds of transformation to Canadian public institutions cannot be achieved by simple statutory bill.

Reforming the Senate in this way will require more than a parliamentary law in order to consummate such far-reaching changes to Canadian constitutional conventions and traditions. What will be required is a formal constitutional amendment.

Passing a constitutional amendment in Canada pursuant to the rule of 7/50 in the Constitution Act of 1982 (requiring the consent of 7 provinces representing at least 50 percent of the population) is perhaps just as difficult, if not more so, than scaling the monumental heights required by Article V of the United States Constitution.

Some scholars have suggested that the 7/50 rule does not apply to these kinds of changes to the tenure of Senators. They argue that one of Canada's other amendment formulae will apply. But it is not clear how anything but the 7/50 rule can apply in this case because the proposed changes involve the selection of Senators--which is a matter expressly made subject to the 7/50 rule in Section 42 of the Constitution Act of 1982.

Nor am I convinced that limiting the prime ministerial power to appoint Senators does not in fact constitute a constitutional amendment.

In any event--and without necessarily endorsing or rejecting these proposals for Senate renewal from my own personal perspective--these current discussions about Senate reform augur great promise for advocates of Senate renewal in Canada because both major parties have reached agreement on an important point: that it is now time to move from life-tenure to term limits for Senatorial service.

3 comments:

  1. Knowing nothing about this aspect of Canadian constitutional law, I wonder whether the liberal proposal couldn't be structured as one in which the committee gives advice to the Prime Minister, who would have formal legal authority to disregard the advice but might suffer political harm in disregarding the advice?

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  2. I could see the Prime Minister following the advice of the committee becoming a constitutional convention.

    For example, in the Republic of Ireland the right to draw up electoral boundaries is reserved to parliament by the constitution. However for many years an independent commission has been set up to make a recommendation to parliament, which then just rubberstamps the proposal. At this point it would probably be politically impossible for parliament to breach convention and ignore the commission.

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  3. Mark:

    Thank you for your comment.

    What you suggest would be an improvement on the current Liberal proposal. The Prime Minister would receive recommendations from an advisory committee, and she could then choose to depart from or accept from those recommendations.

    I wonder, though, whether our second commentator above, "Anonymous," may not be onto something quite profound.

    It may in fact become the case that the advisory committee grows, over time, into something more closely resembling a binding committee.

    If so, this would be an instance of political practice hardening into a constitutional convention, which would in turn constrain or compel the action of the Prime Minister. And that would effectively constitute a constitutional amendment.

    Perhaps an instructive illustration of this phenomenon, still in the Canadian constitutional context, is the Notwithstanding Clause, which you have written about quite often, notably in your book on "Weak Courts, Strong Rights."

    Although the Canadian Charter of Rights and Freedoms authorizes the national legislature to overturn a judgment of the Supreme Court, no national legislature has done so since the drafting of the Charter. In this thirty-year period, the Notwithstanding Clause has become radioactive, with the consequence that it has since descended into desuetude.

    That may be one example of Canadian national political practice effectively amending the Canadian Constitution.

    I am careful, here, to refer to national political practice, because the Notwithstanding Clause has been invoked at the provincial level. But this should come as no surprise given the nature of federalism in Canada.

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