Tuesday, February 19, 2013

How Difficult is Senate Abolition? A Law Professor Responds

Yesterday I came across this piece in the Hill Times that was quite negative on the constitutional prospects for Senate abolition.  A couple different experts were quoted in the piece, and a couple elements of what they're quoted as saying weren't clear to me so I wrote to one of them, Bruce Ryder of Osgoode Hall Law School.  He was gracious enough to write back, quite quickly.  My questions and his answers follow.

Before I start, a quick primer on amending the Canadian Constitution, there are several sections of the 1982 Constitution referenced, here's what they roughly mean:

s38 - This is the "default" amendment formula, requiring approval of the federal Parliament, and the legislatures of seven provinces that collectively have at least 50% of the Canadian population.
s41 - Certain parts of the Constitution are deemed as requiring an even higher bar for approval, all provincial legislatures plus the federal Parliament must approve.
s43 - Amendments that basically only affect 1 or 2 provinces can be enacted by approval of the federal Parliament and the legislatures of the affected province(s).
s44 - Amendments that only affect the federal Parliament, and aren't specifically listed as requiring s38 or s41 can be enacted by the federal Parliament on its own.  s42 in particular sets limits on when this can be used by requiring s38 for a number of things.
s47 - This isn't an amendment formula but stipulates that for amendments under s38, s41 and s43, if the Senate fails to pass an amendment already passed by the House of Commons, the House can just re-pass the same amendment after six months and bypass the need for Senate approval.

On to the questions:

[D] I am curious about some things you are quoted saying in a recent article in the Hill Times:

1) You state clearly that consent of the Senate would be required to abolish it.  My plain reading of section 47 says the House of Commons can twice pass an amendment and thus the Senate's consent is not required.  Am I missing something or was that an error on your part?

[BR] Yes, your reading of s.47 is correct, the Senate has only a "suspensive veto". That is, in the context of a proposed amendment to abolish the Senate, the Senate would have the power only to delay its own destruction. The House of Commons could overcome any resistance in the Senate by re-passing a resolution in favour of its abolition 180 days later.

[D] 2) What is the basis of your certainty that abolition of the Senate would have to be done by Section 41 instead of 38?  Nothing in s41 seems to me to preclude abolition of the Senate.  The one reference is just that provinces must keep as many House members as they have Senators.  If there was no Senate, this requirement is trivial, but always met.  That the government has sent this very question to the Supreme Court seems to at least imply the answer is not certain.

[BR] The question is: would an amendment of the constitution to abolish the Senate be an amendment in relation to any of the matters listed in s.41 of the Constitution Act, 1982? If so, then the amendment would need to be supported by resolutions passed in all 10 provincial legislatures. I agree that the "Senate floor" provision in s.41(b) would not be affected by Senate abolition: provinces would still be entitled to have at least as many MPs in the House as they had Senators "at the time this Part comes into force" [April 17, 1982]. I agree that an amendment abolishing the Senate would not be in relation to the office of the Queen or her representatives [s.41(a)], the use of English or French (even though neither could be used any more in the Senate!) [s.41(c)], or the Supreme Court of Canada [s.41(d)]. However, abolishing the Senate would necessitate an amendment to the amending procedures themselves [s.41(e)], as the approval of the Senate could no longer be required for amendments as it currently is by s.38, s.41, s.42, s.43 and s.44 (subject to being overridden by the House pursuant to s.47).

You might argue in response that we could abolish the Senate and leave the amending procedures themselves untouched. But this would render the amending procedures unusable because they would require the approval of a body that did not exist. Could we live with such a constitutional straitjacket as the price of Senate reform? You might reply by saying yes, since the Senate has only a suspensive veto (by virtue of s.47). The House could simply vote twice, separated by six months, and thereby override the Senate's rigor mortis. You might say the country can put up with a delay of six months for future constitutional amendments - it's just another form of sober second thought.

However, notice that s.47 does not allow the House to override the need for Parliament's approval pursuant to s.44. The constitution currently defines Parliament to consist of the Queen, the House and the Senate. Therefore, the abolition of the Senate would make it impossible to pass future amendments pursuant to s.44, unless Parliament is redefined to exclude the Senate. But that would involve an amendment to the amending procedures, which by virtue of s.41(e) requires the approval of all ten legislatures. You might argue that if we are willing to make s.44 unusable, by not amending it to remove the requirement of Senate approval, then the unanimity procedure need not be followed. But that would be a curious kind of Senate abolition, one that would allow the Senate to rule us from the grave by preventing future amendments to Parliament or the government of Canada.

For these reasons, I believe the abolition of the Senate cannot be accomplished without amendments to the amending procedures and thus, pursuant to s.41(e), Senate abolition would probably require the support of all ten legislatures and both Houses of Parliament (subject to the Senate being overriden by the House pursuant to s.47). I say "probably" because the Supreme Court of Canada has not yet interpreted the amending procedures in the 1982 constitution. Its opinion on this reference will break new ground in that regard. The amending procedures are complex and convoluted, leaving plenty of room for legal debate. Nobody should put forward their opinion as a "certainty", although the text and its underlying objectives can allow us to say that some interpretations are more likely than others.

[D] 3) Do section 41 amendments require unanimous passage in the various legislative bodies (i.e. must pass with all 308 MPs, 105 Senators voting yes) or just that all 10 provinces and the federal parliament must approve by simple majorities within each legislature?  Your sentiments in the article seem to imply all individual voting legislators must assent.  Yet that level of unanimity seems implausibly high in any democracy.

[BR] No, when we refer to s.41 as the "unanimity procedure", as constitutional lawyers frequently do, we are referring to its requirement of unanimity among federal and provincial legislatures, not to the unanimous support of the members of each legislature. Section 41 amendments come into force if all ten provincial legislatures and Parliament pass authorizing resolutions through a majority vote of the members present at the time of the vote.

I'm thrilled to get such a comprehensive answer. Questions 1 and 3 are really just clarifying points. The Hill piece makes it sound like "unanimity" doesn't just mean each legislative chamber approves, but each individual legislator.  Glad to also clarify the meaning of Section 47, which means the Senate is not required to approve of amendments concerning itself (or anything else, except for amendments under s44).

Answer 2 is the most important question though.  I find his reasoning convincing, except that I think the way he describes it, it is possible we could abolish the Senate as a section 38 (seven provinces with at least 50% of the population) amendment, and once that was done, follow it up with a section 41 amendment requiring consent of all 10 provinces and the House of Commons twice to fix s44.  That second amendment, would have a reasonable chance of passage since the Senate would already be gone.

Alternatively, it's possible we live without that amendment, and make do with s38 approval for things we might now want to pass under s44.  That entails a certain loss of constitutional flexibility, as there have already been two amendments passed under s44 since 1982.  One changed the formula for apportioning House seats, and the other granted Nunavut a Senate seat.  Arguably it would be good if amendments like that needed more approval than just Parliament itself.

Of course, the Supreme Court will rule on this, and maybe they'll find that you can't Amend the Constitution in such a way that some section you're not allowed to amend using the formula you're using would be rendered useless, inert or moot.  Maybe abolishing the Senate as a section 38 "seven-fifty" amendment just can't be done because it alters the effect of section 44 and that would be construed as an "amendment" even if the actual text of the section isn't being changed.  I guess we'll see, I'm a layman.

But if we are allowed to abolish the Senate as part of s38, and there is public will to do it, I would take my chances and accept the loss of s44 in exchange for ditching the Senate.  It's continued existence is an ongoing threat to the function of Canadian democracy, an unstable bomb that may go off any time in the form of deciding to exercise its theoretical powers.  If it has to be s41, we should still try.  If all that fails, and reform is the only option, we should ensure we set limits of the sort other bicameral systems usually have by limiting the Senate's powers over Supply bills, and creating provisions for the House of Commons to override it in some fashion at moments of great need.

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