News from North of the Border

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By Nancy McCormack
January 28, 2014

Although the laws in Canada and the United States often appear to be similar, owing in part to their shared British origins and common law tradition, the Supreme Courts of each country significantly differ in their approach to the matter of hearing abstract questions. Both the United States Supreme Court and the Supreme Court of Canada (SCC) regularly hear cases involving live disputes between two parties. But the SCC, on a relatively frequent basis, also hears “references” and provides opinions on them. A “reference,” which is permitted by the Canadian Supreme Court Act (s. 53), allows the government to ask the court for an opinion on important, but often abstract or hypothetical, questions of law concerning the Constitution, legislation, or powers of the provincial or federal governments, etc. Once a question has been referred, the court must hear submissions and consider and answer (with reasons) each question referred to it in much the same way it would any other appeal.

Amending the Constitution

The most recent reference sent by the federal government to the Supreme Court has to do with how to amend the Constitution in order to make changes to one of the two houses in the legislative branch of our government—the Canadian Senate. Like the U.S., Canada has a House of Commons and a Senate, and both countries have a similar number of senators (100 in the U.S. versus 105 in Canada). Unlike the U.S., however, Canada’s senators are appointed (not elected) by the governor general (on the advice of the prime minister) and can only serve until they reach the age of 75. Canada’s Constitution Act, 1867, which, like the U.S. Constitution, establishes, among other things, the Senate, requires that Canadian senators be appointed according to residence in specific geographical areas of the country. Would-be senators must also own a certain amount of property ($4,000 worth of land and clear of mortgages, and real and personal property in the amount of $4,000)—a requirement which the constitution’s drafters in the late 1800s must have hoped would keep the riffraff out of the Senate Chamber.  

The problem, of course, is that a Senate based strictly on appointment in the 21st century seems, at the very least, anti-democratic. Stephen Harper, Canada’s prime minister, has been talking about Senate reform for a long time, so, in 2011, he finally took a major step toward that goal with the introduction of a bill entitled the Senate Reform Act. This bill, should it become law, would at least be democratic to the extent that it would allow the various provinces to elect nominees for Senate seats; senators would then be appointed, according to the usual procedure, from those nominees and would serve a single, nonrenewable term consisting of nine years. 

Here’s the tricky part, though. There are different ways to amend the Canadian Constitution, and it all depends on the subject matter. Most constitutional amendments require a resolution of the House and Senate which must then be agreed to by at least seven of the 10 provinces, which contain at least 50 percent of all Canadians (the “7/50” formula). Other constitutional amendments might require—within the spectrum of alternative methods––a resolution of the House and Senate along with the unanimous approval of all 10 provinces or—elsewhere in the spectrum––simply a resolution agreed to by the House and the Senate.

Prime Minister Harper thinks the Senate Reform Act is a matter that the government can amend on its own without getting the provinces involved. The provinces think he is wrong and that the 7/50 formula applies. There’s an answer out there somewhere, and the government has turned to the Supreme Court for that answer by sending it a reference.

The reference asks the court to consider a number of questions, including: Can the federal government impose Senate term limits (for eight years, nine years, or 10 or more years)? Can these limits be applied to senators who have already been appointed? Should a national process be set up for provinces to select their nominees for appointment to the Senate? Ought the property qualifications as set out in the Constitution be repealed? Finally, can the Senate itself be abolished? If the Senate can be abolished, other questions arise: Which governments (i.e., provincial, federal) must be involved in the process? How many of these bodies must agree in order to make the abolition happen?

The Waiting Game

Of course, it’s no surprise that we’re not going to get a response any time soon. In August 2013, Beverley McLachlin, the chief justice of the Supreme Court, told the Canadian Bar Association that the court would be in no rush. Many now predict that the court might take anywhere from 10 to 24 months to provide answers to the questions the government has referred to it.

The entire matter, lately, has become far from academic. Since the government submitted its reference to the Supreme Court, a major Senate scandal involving three senators who (allegedly) fudged their expense claims has been in the national news on a daily basis. Many Canadians who once might have had little or no opinion on senators now have a lot more to say after seeing the three senators suspended from the Chamber without pay for two years. Whether the suspension of these senators was done by the government to make a point about the necessity of Senate reform, as some argue, or whether they were drummed out without regard to their legal rights (i.e., the ability to know the full case against them and to make a full defence) to protect the reputation of the Senate and other senators, as others suspect, is something we can’t answer as yet. What we can do, though, is look forward to the Supreme Court’s response. Once we have it, we’ll have a better sense of how close we are to a real and permanent change in our troubled legislative branch.

Nancy McCormack
(, Librarian and Associate Professor of Law, Queen’s University, Kingston, Ontario