Constitutional Forum (Journal)
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Revisit the Senate as it was meant to be — The Upper House was created to protect provincial interests in the federal legislative process
No full textThe scandal provoked by the expense claims of individual senators has obscured a deepermalaise surrounding the Senate — one that dates back to Confederation. This malaise has to do with the reasons why the Fathers of Confederation established a Senate in the first place, and with their failure to follow through with a selection procedure that would have made it possible for the Senate to perform its intended function
Analysis of Reference re Supreme Court Act: The Implied Currency Requirement for Quebec Seat Appointees to the Supreme Court
No full textThe Supreme Court of Canada, in a 6-1 judgment in March 2014, ruled that an appointee toone of the three Quebec seats on the Supreme Court must be either a current Quebec SuperiorCourt judge or a current Quebec lawyer of at least ten years’ standing. Reference re SupremeCourt Act, ss. 5 and 6 [Reference] determined that the phrase “from among” in section 6 of the Supreme Court Act [Act] implies that Supreme Court appointees to the reserved Quebec seats must be current members of one of the designated Quebec legal institutions. The judgment also affi rmed that any change to the composition of the Supreme Court, including the eligibility conditions of appointees, is constitutionally protected. A synthesis of textual, contextual, and purposive analysis is hereinaft er used to review the Reference
Tapping the Potential of Senate-Driven Reform: Proposals to Limit the Powers of the Senate
No full textIn the immediate aftermath of the 2014 Senate Reform Reference, there was considerable talk about the limitations that the Supreme Court had put on Senate reform. Some political leaders expressed frustration and declared that we are left with the status quo. But, that view both misunderstands what the Court said and underestimates what can be achieved through non-constitutional means. There is much that can be done simply with the political will to change the Senate situation without resorting to constitutional amendment; senators already have the power to effect some serious reform from within. This paper focuses on an unorthodox suggestion: that substantive reforms might be achieved through changes to the Rules of the Senate governing its legislative process. With some changes to both the legislative and appointment processes, substantial improvements to the Senate are both possible and achievable. The result would be a Senate better able to perform its intended function as a chamber of sober second thought. It would also answer the most serious concerns about an appointed Senate’s role in a modern democratic system
Judicialization or Renunciation? Judges in Today’s Landscape of Anti-Terrorism Laws
No full textJudges in constitutional democracies face common dilemmas navigating today’s landscape of anti-terrorism laws. Whether it is with respect to the oversight of investigative detentions or approval of control orders, security certifi cates, and other offi cial powers calculated to investigate and prevent terrorism and related activities, the judicial role has expanded into fi elds where the appropriate balancing of security concerns with individual liberties is exceedingly complex. The need for such balancing is, of course, one of the central justifications for judicial involvement: the judiciary is relied upon to bring characteristicindependence and integrity to the review of official powers, ensuring compliance betweenthe latter and the higher law of the Constitution. There is nevertheless an unsettling implication that sometimes attends judicial service in these fields — namely, it is not always clear whether the judicial role is truly one of constitutional enforcement and oversight, or one that allows administrative actors to borrow the integrity of the courts in furtherance of constitutionally-suspect ends
A Time for Boldness? Exploring the Space for Senate Reform
No full textIt was thirty years ago this past March that Alberta’s Select Special Committee on Upper HouseReform released its influential 1985 report that helped to reframe discussions on Senate reformand popularize proposals for a “Triple-E” Senate. The Committee’s report built on the work ofa Canada West Foundation task force that argued eff ective regional representation in Parliament requires a Senate that is equal (in terms of provincial representation), elected, and effective (in terms of its legislative powers). The Alberta Committee’s Report popularized these ideas and helped to frame the Senate reform debate in terms of commitments to electoral democracy and rebalancing federalism, especially in terms of the representation of territorial interests at the federal level
Notes from an Insider: Some Bold Ideas on Senate Reform
No full textI have a stake in our succeeding in finding a way forward for the Senate, and not because I expect to be there a long time — in fact, I have less than two years before I reach the constitutional age of retirement. I believe the Senate can still serve a useful, indeed important, purpose for Canadians. I have seen its potential “up close and personal,” as they say, but I don’t believe it is reaching anywhere near that potential now. In fact, it is very frustrating and sometimes even discouraging to witness what is going on. Boldness is indeed required for Senate reform, and I suspect that, for some, a good dose of courage may be needed as well
The Supreme Court of Canada Long-Gun Registry Decision: The Constitutional Question Behind an Intergovernmental Relations Failure
No full textIn 2012, Parliament repealed the federal law that had established a mandatory long-gun registry. The law to repeal the long-gun registry also provided for the destruction of the data contained therein. Quebec, however, expressed its intention to establish its own gun-control scheme and asked the federal government for its data on long-guns owned by residents of Quebec. When the federal government refused to turn over the data from the long-gun registry, despite the fact that Quebec government offi cials had access to the data while the long-gun registry was in operation, Quebec challenged the constitutionality of the federal law providing for the destruction of the data and sought an order requiring the federal government to turn over the data to Quebec. Th e federal government’s refusal to participate in an act of intergovernmental cooperation began a three-year round of constitutional litigation that concluded in March of 2015 with a split decision of the Supreme Court of Canada
Complexity and the Amending Formula
No full textThinking boldly about Senate reform means no longer relying on claims about Canada’s constitutional amending formula as a crutch for stagnation. Despite rhetoric to the contrary, theamending formula is not responsible for stalled progress on Senate reform. To be sure, the formula is intricate, detailed, and sustains multiple reasonable interpretations. It was difficult to entrench and requires widespread support to be changed; it calls on political actors to reach some measure of consensus in order to achieve certain constitutional reforms. However, the amending formula is neither impenetrable nor incomprehensible. It is neither a Rubik’s cube nor an instruction manual. And, it should not be cast as the scapegoat for the effects of partisanship or failures of leadership in implementing reform
Time for Boldness on Senate Reform, Time for the Trudeau Plan
No full textAs it currently stands, there are three bold options on the table when it comes to reforming the Canadian Senate: make it an elected body, abolish it, or make it more independent and less partisan. Only the third option, proposed by Liberal leader Justin Trudeau, is the realistic option: the other two don’t stand a chance
Addressing the Senate’s “Triple-Deficit”: The Senate as Driver of its own Reform
No full textInstead of arguing for or against a “Triple-E” Senate, I argue that, whatever one’s position on the Senate (short of abolition), the Senate suffers from a “Triple Deficit”: (1) an integrity deficit; (2) a legitimacy deficit; and (3) a democratic deficit. It suffers from an integrity deficit because of the reputation that the Senate has for not being a particular demanding job, and, more importantly, because of recent scandals that are a continuation of a history of scandal which the Senate has never taken concrete steps to address. The Senate suff ers from a legitimacy deficit because of the integrity deficit and because of its history of patronage appointments. Finally, it suffers from a democratic deficit for more than the obvious reason that it is unelected. As the Supreme Court stated in the Quebec Secession Reference, democracy as it has come to be understood in Canada means more than simply respect for majority will: “to be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. The system must be capable of refl ecting theaspirations of the people.” Rather than allowing for public participation and accountability, the Senate has allowed itself to become isolated from the Canadian people. This sense of isolation has exacerbated the Senate’s democratic deficit and has led Canadians to view it as distant, elitist, andout of touch with the people