BULLETIN: Governor in Council Refers 6 Questions on Senate Reform to Supreme Court

Back in September, I wrote about some of the key constitutional law issues that could  arise on a hypothetical reference case before the Supreme Court of Canada dealing with Bill C-7, or the Senate Reform Act.

Earlier today we learned that the Government of Canada was indeed referring questions to the Supreme Court on its Senate reform plans. Moments ago, the Minister of State for Democratic Reform, Tim Uppal, announced the form those questions will take (as reported by the CBC’s Kady O’Malley): 

The Governor in Council has referred the following questions to the Supreme Court of Canada:

Senate Term Limits

1.    In relation to each of the following proposed limits to the tenure of Senators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982, to make amendments to section 29 of the Constitution Act, 1867 providing for

a.    a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform Act;

b.    a fixed term of ten years or more for Senators;

c.    a fixed term of eight years or less for Senators;

d.    a fixed term of the life of two or three Parliaments for Senators;

e.    a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution Act, 2006 (Senate tenure);

f.     limits to the terms for Senators appointed after October 14, 2008 as set out in subclause 4(1) of Bill C-7, the Senate Reform Act; and

g.    retrospective limits to the terms for Senators appointed before October 14, 2008?

Senate Appointment Consultations: National Process

2.    Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867, or section 44 of the Constitution Act, 1982, to enact legislation that provides a means of consulting the population of each province and territory as to its preferences for potential nominees for appointment to the Senate pursuant to a national process as was set out in Bill C-20, the Senate Appointment Consultations Act?

Senate Appointment Consultations: Provincial Processes

3.    Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867, or section 44 of the Constitution Act, 1982, to establish a framework setting out a basis for provincial and territorial legislatures to enact legislation to consult their population as to their preferences for potential nominees for appointment to the Senate as set out in the schedule to Bill C-7, the Senate Reform Act?

Property Qualifications

4.    Is it within the legislative authority of the Parliament of Canada acting pursuant to section 44 of the Constitution Act, 1982 to repeal subsections 23(3) and (4) of the Constitution Act, 1867 regarding property qualifications for Senators?

Senate Abolition

5.    Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act, 1982, by one of the following methods:

a.    by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside of the Constitution Acts, 1867 to 1982 but that is still part of the Constitution of Canada;

b.    by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or

c.    by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(1)(b) and (c) of the Constitution Act, 1982?

What is of particular interest is that beyond weighing in on the constitutionality of Bill C-7 (via questions 1-3), the Supreme Court is also being asked to comment on the procedural and constitutional steps that must be taken in order to abolish the Senate.

More to come.