What is a Reference to the Supreme Court of Canada?
Under section 53 of the Supreme Court Act, the Governor in Council may refer to the Supreme Court, for its opinion, important questions of law or fact concerning the interpretation of the Constitution and the constitutionality or interpretation of any federal or provincial legislation.
The Court will then provide an opportunity for interested parties to make written and oral arguments. After considering the questions and the arguments of interested parties, the Court will render an opinion and, to the extent possible, will provide an answer to the questions posed by the Governor in Council.
What are the Reference Questions?
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 fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform Act;
a fixed term of ten years or more for Senators;
a fixed term of eight years or less for Senators;
a fixed term of the life of two or three Parliaments for Senators;
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
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?
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?
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?
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:
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;
by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or
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?
6. If the general amending procedure in section 38 of the Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent provision set out in section 41 of the Constitution Act, 1982 apply?
Why is the Government of Canada Pursuing a Reference to the Supreme Court of Canada?
Canadians gave the Harper Government a strong mandate to reform the Senate.
The Senate plays an important role in Canada’s parliamentary system as senators make and review laws that directly affect Canadian taxpayers.
The Government believes that the Senate, in its current state, must change in order to reach its full potential as a democratic institution serving Canadians.
The aim in seeking a reference to the Supreme Court is to accelerate the pace of Senate reform and to lay the foundation for further reform to the Senate.
Why is the Government Including Questions in the Reference that go Beyond the Provisions of the Senate Reform Act?
The questions reflect the Government’s position that meaningful change to the Senate can be achieved within Parliament’s authority.
The additional questions will elicit the opinion of the Court on the appropriate amending procedures for a broader set of issues that have been prevalent in discussions on Senate reform over the past several years, and could pave the way for further reform.
How Long is the Reference Expected to Take?
The Supreme Court of Canada will determine the schedule for the conduct of the reference. That said, there could be an opinion of the Supreme Court within 10 to 24 months of filing the notice of reference. This estimate is based on past references before the Court.