I LOVE THE SENATE, Making a case to preserve and enhance the Senator's profiles, the constitutive role of the Senate and to showcase the work being done by this essential institution ..
Canadians must understand the fundamental and essential role of the Senate
The Senate – An EssentialHouse of Parliament http://www.revparl.ca/37/1/37n1e_14_kinsella.pdf
Why is the Senate of Canada so essential? https://www.linkedin.com/pulse/why-senate-canada-so-essential-alexis-david-fafard
http://ualawccsprod.srv.ualberta.ca/ccs/index.php/constitutional-keywords/489-amending-formula Amending Formula A constitution includes the most fundamental values of a nation. Those values should be protected. One of the ways that a constitution is protected is by making it hard to change. If it was easy to change, the government could change the constitution when it wanted to act unconstitutionally.
However, a constitution should not be too difficult to change. Values change over time. Some things may not be as important as they once were, and other things that were not important may have become fundamental. A constitution should be able to respond and incorporate changes in keeping with the times.
A good constitution needs to find the right balance. It should not be too easy or too hard to change. When Canada’s Constitution was being updated in 1981-82, the people who were suggesting changes had to think about this balance.
Before 1982, Canada could only change its Constitution by asking the British Parliament to do it for Canada. In order to "patriate" the Constitution, that is, to bring it home, Canada needed a way to change the Constitution on its own.
It needed a formula or a way to make changes to its Constitution that would be acceptable to Britain and to the federal and provincial governments. By creating an acceptable amending formula, Canada would no longer need to rely on Britain.
The drafters of Canada’s revised Constitution created the amending formulas. They are listed in sections 38 to 49 of the Constitution Act, 1982.[1] Creating the formulas was not easy because all of the provinces wanted to make sure they got a say if and when the Constitution was to be changed.
The amending formulas are complicated. There are five different kinds of formulas. Each one is used for changing different aspects of the Constitution.
The General Formula
The general formula is the standard way to change the Constitution. Unless the Constitution says that another formula can be used, the general formula is needed.
The general formula is also needed for specific changes listed under section 42,[2] like changing what powers Senators have and how they are selected. This formula would also be used to establish new provinces.
To change the Constitution using the general formula, the change needs to be approved by 1) the federal Parliament, 2) the Senate, and 3) a minimum number of provincial legislatures. There must be at least seven provinces that approve the change, representing at least 50% of Canada’s population.
This is often called the 7 + 50 rule. This means that provinces with large populations will typically need to approve a change in order for the amendment to succeed. However, the change cannot happen without some support from provinces with smaller populations.
The Unanimous Formula
Some things were thought to be so important to Canada that they could only be changed by having all of the provincial governments and federal government agree. Section 41 describes the types of changes that need agreement from all governments.[3]
This includes changing the role of the King or Queen, changing the use of English and French in Canada, or changing the amending formulas themselves. Because all governments need to agree on these issues to change them, it is very unlikely that these changes will ever be made.
Other Amending Formulas
The other three amending formulas are used to make changes to the Constitution that do not affect all provinces. Typically, only the governments that are affected by the change need to agree. For example, if it is a change to a provincial constitution, only that province needs to agree to the change.
If it is a change to how the federal government works, the federal government alone can make that change. If it is a change that affects two or more provinces, like changing provincial boundaries, only those provinces and the federal Parliament need to agree.
Amendments since 1982
So far there has been very little use of the amending formulas in Canada. Most changes have been made by using the "province-only" formula. There was one successful use of the general formula in 1983 to make some additions to Aboriginal rights.
There were two famous attempts to change the Constitution that failed: the Meech Lake Accord in 1987 and the Charlottetown Accord in 1990. Both attempts proposed a number of changes to the Constitution that were negotiated by the different leaders of Canada. However, when it came time to use the general amending formula, neither attempt could get all of the different agreements required using the general formula.
None of the amending formulas require direct approval by the people of Canada. Some governments think that it is not a good idea to change the Constitution without having a public vote or referendum on it.
Alberta[4] and BC[5] have now passed laws that require that a referendum must be held before they approve a change to the Constitution. Additionally, the federal government has a law called An Act respecting Constitutional Amendments, that requires support from Ontario, Quebec, BC, at least two of the Atlantic provinces and at least two of the Prairie provinces before proposing an amendment.[6]
These laws add an extra step needed before the Constitution is changed, which may make it even harder to change the Constitution. On the other hand, some think that this would make the change more democratic.
Although there is a lot of debate about changing Canada’s Constitution, it is important to understand how it can be completed. So far, changing the Constitution has been very difficult.
Whether there will be more changes in the future remains to be seen. For now, Canada's amending formulas have made sure that the Constitution is well protected.
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 the 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 the provinces.
(2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).
(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.
(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.
39. (1) A proclamation shall not be issued under subsection 38(1) before the expiration of one year from the adoption of the resolution initiating the amendment procedure, unless the legislative assembly of each province has previously adopted a resolution of assent or dissent.
(2) A proclamation shall not be issued under subsection 38(1) after the expiration of three years from the adoption of the resolution initiating the amendment procedure thereunder.
40. Where an amendment is made under subsection 38(1) that transfers provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply.
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 assemblies 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.
42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):
(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;
(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
(d) subject to paragraph 41(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories; and
(f) notwithstanding any other law or practice, the establishment of new provinces;
(2) Subsections 38(2) to 38(4) do not apply in respect of amendments in relation to matters referred to in subsection (1).
43. An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all provinces, including
(a) any alteration to boundaries between provinces, and
(b) any amendment to any provisions that relate to the use of the English or the French language within a province may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.
44. Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to executive government of Canada or the Senate and House of Commons.
45. Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.
46. (1) The procedures for amendment under sections 38, 41, 42, and 43 may be initiated either by the Senate or the House of Commons or by the legislative assembly of province.
(2) A resolution of assent for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it.
47. (1) An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42, or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.
(2) Any period when Parliament is prorogued or dissolved shall not be counted in computing the one hundred and eighty day period referred to in subsection (1).
48. The Queen's Privy Council for Canada shall advise the Governor General to issue a proclamation under this Part forthwith on the adoption of the resolution required for an amendment made by proclamation under this part.
49. A constitutional conference of the Prime Minister of Canada and the first ministers shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part. [Note that this requrement was satisfied at the 1996 First Ministers Conference]
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Above: Conservative Senator Hugh Segal says the government should not give up on its quest to change the Senate. He explains what options are left.
OTTAWA — Although the Harper government seemed to shrug its shoulders and move on following the Supreme Court’s recent ruling on the Senate, it is by no means out of options, said one Conservative senator.
“I would … make the case that there are still changes that could be made,” Senator Hugh Segal said in an interview on The West Block with Tom Clark. “There could be a new approach to how you appoint, on a consultative basis.”
On Friday, the Supreme Court shot down Prime Minister Stephen Harper’s plans to reform the upper chamber, which has been plagued with scandal.
In a historic, unanimous decision, the top court advised that the prime minister’s proposals to impose term limits on senators and create a “consultative election” process to choose nominees cannot be done by the federal government alone.
Instead, the court ruled, those reforms would require constitutional amendments signed off by at least seven provinces representing 50 per cent of the nation’s population. That, however, would set the country down a path peppered with political landmines — a route Harper was hoping to avoid.
The court went even further on the idea of abolishing the Senate, deciding that move, which Harper said he would take should he be unable to reform the upper chamber, would require unanimous consent of all 10 provinces.
So as the Conservative government sees it, its hands are tied. WATCH: Democratic Reform Minister Pierre Poilievre says the government is out of options when it comes to reforming the Senate, and explains why the government decided to make amendments to the Fair Elections Act.
“The court has made Senate reform by Parliament impossible,” Democratic Reform Minister Pierre Poilievre said in an interview Sunday. “So at this point we’re going to do what we can to limit the cost and maximize the accountability of the Senate within the existing constitutional framework that the court has laid out.”
Senate reform has long been a priority for the Conservatives. But with last week’s ruling, it seems they’re prepared to move on.
Poilievre dismissed the notion of the government sitting down with the provincial premiers to see if they could get on board with the proposed reforms.
“I just think this time, the Canadian people are focussed on the economy,” he said when asked whether that was an option. “Our government is focused on jobs growth and lower taxes, and we don’t want to distract from that agenda by having a complicated constitutional wrangling with politicians at other levels of government.”
Senator Segal credited the government for respecting the Supreme Court’s decision, but argued there still are options.
He gave the example of the British House of Lords, upon which the Senate is based, where no government has a working majority.
“The mix of people appointed from the various political parties and as crossbenchers who come because they bring a particular expertise and science, or technology, or the military, or the church, or whatever, is such that the body can never be controlled by any one political party,” Segal said. “These are changes that could be made and require no constitutional revision at all.” - With files from The Canadian Press
Ottawa cannot act alone to reform the Senate, limit terms or appoint only elected senators, and must have the consent of seven provinces with half the country’s population, the Supreme Court of Canada ruled Friday.
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EVERT-JAN DANIELS / AFP/GETTY IMAGES file photo
Prime Minister Stephen Harper has been an advocate of Senate reform since his days as a young Reform party MP.
By:Tonda MacCharlesOttawa Bureau reporter, Published on Fri Apr 25 2014
OTTAWA — Ottawa cannot act alone to reform the Senate, limit terms or appoint only elected senators, and must have the consent of seven provinces with half the country’s population, the Supreme Court of Canada ruled Friday.
Abolition of the Senate altogether can only be done with the unanimous consent of the federal Parliament and all provinces, the country’s top court concluded.
In a landmark defeat for Prime Minister Stephen Harper that could yet set the stage for a referendum by a government frustrated at its failure to unilaterally legislate Senate reform, the high court dismissed nearly every single argument brought before it by federal lawyers.
A referendum is seen by some within the Conservative government as a potential political hammer to pressure reluctant provinces to go along with Senate reform. Maxime Bernier, a Conservative cabinet minister from Quebec, said Friday the court decision means a referendum is the only way to go.
The high court decision was a unanimous 8-0 judgment. In a clear sign of the strong judicial consensus, the 52-page ruling was signed by “The Court” as a whole, not penned by any one judge.
Hours after the ruling Prime Minister Stephen Harper in brief comments at Kitchener said the result is no change to the Senate will happen anytime soon.
“The Supreme Court of Canada essentially said today that for any important Senate reform of any kind, as well as abolition, these are only decisions the provinces can take.
“We know that there is no consensus among the provinces on reform, no consensus on abolition, and no desire of anyone to reopen the constitution and have a bunch of constitutional negotiations. So essentially this is a decision for the status quo, a status quo that is supported by virtually no Canadian.”
“So look, I think that given that the Supreme Court has said we’re essentially stuck with the status quo for the time being and that significant reform and abolition are off the table I think it’s a decision I’m disappointed with but I think it’s a decision that the vast majority of Canadians will be very disappointed with, but obviously we will respect that decision.”
The high court agreed with the arguments of most provinces and the Quebec Court of Appeal, that Senate reform as proposed by Harper amounts to fundamental constitutional change to a key federal institution, and would alter the way other constitutional changes are supposed to proceed.
It found that the red chamber to which senators are now appointed at the pleasure of a prime minister and hold a seat until mandatory retirement at age 75 was intended to represent regional interests and to act as a legislative check on the executive.
The court said the Senate is a “foundational political institution” and its design as an unelected body was “not an accident of history.”
Ontario Premier Kathleen Wynne was pleased with the ruling, despite the fact that her lawyers had intervened to support the federal government’s ability to set term limits as long as they were long enough to ensure independence.
Wynne suggested her government would not be averse to constitutional talks.
“Ontario is ready to participate if the federal government decides to lead collaborative pan-Canadian discussions about Senate reform,” Wynne said in a written statement.
Quebec’s new Liberal government hailed the court ruling as “historic” and said it affirms the “equal” voice of all provincial partners in the federation.
Justice Minister Stéphanie Vallée said Quebec would be at any table if the federal government opened talks, but said the court’s ruling shows “it's not up to the federal government to dictate reform,” rather that change must be done “in collaboration.”
P.E.I. Premier Robert Ghiz said the decision gives provinces “more ammunition” when it comes to resisting unilateral changes imposed by the federal government.
Ghiz said while it’s not a priority, he supports an elected Senate, and the court gave Ottawa a road map on how to proceed if it really wants to make change.
The judges laid out the history of the Senate, and said it was not meant to have the democratic legitimacy to consistently block the will of the elected chamber in the Commons.
Any move to limit Senate terms or to require senators stand for election is a big change in Canada’s overall legal framework, makes senators less independent, more beholden to a prime minister or an electorate, could potentially upset the balance of democratic power in Parliament and affect the way other constitutional changes are made, the court found.
That’s because the Senate has the power to delay and even veto other constitutional amendments through withholding consent, so that power — entrenched in the Constitution’s prescription for how to change the document — can only be eliminated with the substantial consent of provincial legislatures, the court ruled.
Term limits, even lengthy ones, provide “a weaker security of tenure” and “offer a lesser degree of protection from the potential consequences of freely speaking one’s mind on the legislative proposals of the House of Commons.”
And an elected Senate would overturn the role of the Senate as a “complementary legislative body, rather than a perennial rival of the House of Commons in the legislative process,” the court ruled.
The court allowed only one argument made by the federal government: that Ottawa could unilaterally remove the requirement that senators hold $4,000 worth of property in the province of their appointment, but the Supreme Court said even repealing that requirement would in the case of Quebec senators, require Quebec provincial assent because that province had a special arrangement for Senate representation at Confederation.
The high court agreed with most provinces who argued the Senate as it is today is a part of the original compromise struck between the federal government and the provinces at Confederation in 1867 and entrenched in 1982.
It said past and modern constitutional framers meant to ensure that the country’s law-making framework could not be easily changed.
Harper, an advocate of Senate reform since his days as a young Reform party MP, had argued the Conservative government’s plans didn’t amount to a constitutional change that required provincial consent.
The federal government argued as prime minister he would still retain the power to reject even an elected candidate for the Senate. Harper wants term limits as a means to bring more accountability to a cushy seat held by too many who feel entitled for too long.
The court dismissed almost all the federal arguments as “narrow” and “textual.”
It said the Canadian Constitution Act of 1982 set out clear rules for making changes to the Senate that reflect “the political consensus that the provinces must have a say in constitutional changes that engage their interests.”
“Changes that engage the interests of the provinces in the Senate as an institution forming an integral part of the federal system can only be achieved under” the requirement for substantial provincial consent — in other words, seven provinces representing at least half of Canada’s population.
The ruling is a blow to the New Democrats’ campaign to abolish the Senate. In the wake of a Senate spending scandal, the NDP has tried to capitalize on public backlash against the red chamber with a campaign to get rid of the Senate altogether.
NDP MP Craig Scott said if the Conservatives had been serious about reform, they should have sought the court’s opinion “ages ago.”
The fact they didn’t, despite questions whether it was constitutional, is proof that the government’s reform scheme wasn’t credible, he said in an interview Friday.
“If they were interested in this, they would have done everything possible,” Scott said.
Scott conceded that the ruling also confirms that the NDP’s own demands to abolish the Senate will be “very difficult.”
“This will not be an easy process, if it were to occur, and therefore serious reforms inside the Parliament to the Senate have to occur,” said Scott, the party’s critic for democratic and parliamentary reform.
“There’s a series of ways that you’ll be hearing from the NDP to make the Senate a more accountable institution without changing the Constitution as an step to seeing whether this goal of abolition remains possible,” Scott said.
Liberal MP Stephane Dion said the ruling should jar the Conservatives to the reality that they “cannot unilaterally change the character of the Senate. It’s not constitutional . . . it’s not respecting the federation.”
He said that opening the Constitution to make the desired reforms would inevitably invite protracted negotiation between Ottawa and the provinces on issues that go beyond the Senate.
And he saw little merit in holding a referendum on Senate reform at a time when the economy and job creation should be a priority for the government.
“Do Canadians really want a referendum?” said Dion.
“Do we really want this kind of debate while the economy is still shaky?”
He said the Senate can be improved within the existing constitutional framework by making it less partisan, more independent with senators selected in a process that puts less emphasis on party allegiances.
The court’s ruling is not just a road map for how any federal government must proceed with Senate reform, but how Ottawa and the provinces must work together on any constitutional amendments, as it sets out how the constitutional amending formula is to be interpreted.
It’s the second major court defeat of the government’s plans, and upholds the thrust of another high court ruling on Senate reform in 1980 — before the 1982 Constitution Act was patriated along with clearer rules for making amendments to key institutions and the constitution itself.
Quebec’s top court, the Quebec Court of Appeal, ruled last year that Parliament couldn’t unilaterally impose term limits or consultative elections but needed substantial provincial consent representing half the population, while abolition would require unanimous consent.
The ruling comes in the form of a series of answers to questions posed in a reference to the court by Harper’s government.
After three bills met with loud provincial opposition and failed to move through Parliament, Harper asked the top court to rule whether Ottawa can act alone to reform the troublesome Senate, or if doing so changes an aspect of the country’s constitutional framework and requires the approval of provinces, and if so, how many is enough?
When the case was argued last November, the best the Conservative government could do was muster the support of two or three provinces for most of his proposals.
Ontario and Saskatchewan agreed the federal government could unilaterally set limits on Senate tenure as long as a term was nine or 10 years or more — the equivalent of more than two election cycles — to ensure independence from an appointing prime minister.
Only two — Alberta and Saskatchewan — agreed Harper alone could legislate a framework for “consultative, non-binding” Senate elections; B.C. said it would require the approval of seven provinces and half the population.
But others argued such a substantial change needs nothing less than unanimity.
And Alberta, Saskatchewan and B.C. were the only three to back Harper’s argument that Senate abolition would not require unanimous consent, but could use the “general amending formula” for constitutional change that needs seven provinces with 50 per cent of the population.
Friday’s decision, coming less than six months after the judges heard the case, is an unusually quick ruling.
It also comes four weeks after the Supreme Court of Canada decided in another reference case that the prime minister could not make unilateral changes to the composition of the high court itself, that changes to fundamental federal institutions like the Supreme Court require the unanimous consent of the provinces.
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