Breaking the Bargain: A Comment on the Constitutional Validity of Bill C-7, the Proposed Senate Reform Act

Abstract

In the Constitution Act, 1982, the federal government and the provinces made a bargain regarding Senate reform: while Parliament should be allowed to make minor changes to the Senate unilaterally, certain specified changes, including changes to the method of selecting Senators, would require provincial consent. This bargain reflects the fact that Senate reform would affect both federal and provincial interests, given the Senate’s dual roles as a house of the federal Parliament and, at least ideally, as a means by which provincial and regional interests can be represented in Ottawa. The Harper government’s efforts to unilaterally provide for the election of “Senate nominees,” most recently via Bill C-7, would subvert this bargain. This comment argues that this proposal is unconstitutional, and will likely be held to be such by the Supreme Court of Canada in the upcoming Senate reform reference. It also argues, however, that the Harper government’s proposal to impose non-renewable term limits on Senators is constitutional and would not upset the bargain laid out in the 1982 Act. Finally, this article argues more broadly that preserving the role that the 1982 Act guaranteed to the provinces in shaping Senate reform is the best way to uphold not only the text of the Constitution, but the principles of democracy and federalism that undergird it.

Keywords: Senate Reform, Bill C-7, Canadian constitutional law, Canadian federalism, Parliament, Senate

JEL Classification: K39