Projet de loi fédéral relatif au sénat (Re

)

2013 QCCA 1807

COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF MONTREAL
No:
DATE:

500-09-022626-121
(Decree #346-2012)
OCTOBER 24, 2013

CORAM: THE HONOURABLE

NICOLE DUVAL HESLER, C.J.Q.
PIERRE J. DALPHOND, J.A.
YVES-MARIE MORISSETTE, J.A.
ALLAN R. HILTON, J.A.
JULIE DUTIL, J.A.

REFERENCE RE BILL C-7 CONCERNING THE REFORM OF THE SENATE
ATTORNEY GENERAL OF QUEBEC
PETITIONER
v.
ATTORNEY GENERAL OF CANADA
and
SERGE JOYAL
SOCIÉTÉ DE L'ACADIE DU NOUVEAU-BRUNSWICK
FÉDÉRATION DES COMMUNAUTÉS FRANCOPHONES
ET ACADIENNE DU CANADA
INTERVENERS
OPINION OF THE COURT

[1]
Pursuant to the Court of Appeal Reference Act, R.S.Q. c. R-23, the Court is
obliged to give its opinion to the Government on the following three constitutional
questions that relate to possible amendments to the method of selecting members of
the Canadian Senate and the duration of their term of office:

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[Translation]
1.
Is An Act respecting the election of senators and amending the
Constitution Act, 1867 in respect of Senate terms limits as well as its Schedule
given first reading on June 21, 2011 (Bill C-7) an amendment to the Constitution
of Canada bearing on the office of the Governor General contemplated by
paragraph 41(a) of the Constitution Act, 1982 that cannot be adopted without the
approval of the Senate, the House of Commons and the legislative assembly of
each province?
2.
Is An Act respecting the election of senators and amending the
Constitution Act, 1867 in respect of Senate terms limits as well as its Schedule
given first reading on June 21, 2011 (Bill C-7) an amendment to the Constitution
of Canada bearing on the method of selecting Senators contemplated by
paragraph 42(1)(b) of the Constitution Act, 1982 that can be adopted only in
conformity with subsection 38(1) of the Constitution Act, 1982, that is, with the
approval of the Senate, the House of Commons and the legislative assemblies of
at least two-thirds of the provinces that have in the aggregate at least fifty per
cent of the population of all of the provinces?
3.
Is An Act respecting the election of senators and amending the
Constitution Act, 1867 in respect of Senate terms limits as well as its Schedule
given first reading on June 21, 2011 (Bill C-7) an amendment to the Constitution
of Canada with respect to the fundamental characteristics and role of the Senate
that can be adopted only in conformity with subsection 38(1) of the Constitution
Act, 1982, that is, with the approval of the Senate, the House of Commons and
the legislative assemblies of at least two-thirds of the provinces that have in the
aggregate at least fifty per cent of the population of all of the provinces?

[2]
Since the adoption of the order-in-council initiating this reference, the Governor
General in Council submitted a reference to the Supreme Court of Canada. The six
questions thus posed ask that court to determine Parliament's powers in respect of
amendments concerning the Senate, and at the same time, to do likewise with respect
to the provinces.
[3]
In addition, subsequent to the hearing of this reference, on September 13, Bill
C-7 (the Senate Reform Act) died on the order paper when the first session of the
current Parliament was prorogued. When asked at the hearing what the effect would be
of such an eventuality, counsel for the Attorney General of Quebec and the interveners
answered that this reference nevertheless still raised questions of current interest, thus
warranting answers. The Court agrees; hence this opinion.

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THE CONTEXT

[4]
Canada's founding fathers sought to implant a parliament modeled on that of the
United Kingdom (see the preamble to the Constitution Act, 1867). Accordingly, there
were two legislative houses, the lower one also called the House of Commons and the
upper one, called the Senate, since the British colonies of North America did not have
an established nobility that could constitute a legislative chamber such as the House of
Lords.1
[5]
These two institutions enjoy the same privileges, immunities and powers as
those recognized at the time by the Parliament of the United Kingdom and by its
members (section 18, Constitution Act, 1867). In law their powers were identical, save
with respect to bills involving the expenditure of public funds or the imposition of taxes
(section 53, Constitution Act, 1867) and some constitutional amendments (section 47,
Constitution Act, 1982).
[6]
The transcript of the pre-confederation conferences shows that the founding
fathers discussed the role and composition of the Senate at length. There is no doubt
that this institution was a fundamental component of the federal compromise in 1867. In
fact, the Constitution Act, 1867 contains no less than 15 provisions that are specific to
the Senate, including its powers, prerogatives and privileges, composition, appointment
of senators and the duration of their tenure of office (essentially sections 21 – 36), not to
mention other provisions in which reference is made to the Senate.
[7]
For Sir John A. Macdonald, there was no question of senators being elected. He
disliked the fact that the members of the Legislative Council of the parliament of the
province of Canada had been so elected for renewable mandates of eight years. 2
[8]
In this Legislative Council, 24 members represented each of Lower Canada and
Upper Canada since their union in 1841, without reference to their respective
populations. This form of representation would be adopted in the Constitution Act, 1867,
where it was provided that the colonies of New Brunswick and Nova Scotia would also,
together, have 24 senators3. The three regions of the new Dominion were thus equally
represented in the Senate.4 Moreover, 24 senatorial electoral divisions were created for
1

2
3

4

In 1867, not only was Parliament bicameral, but so too were the legislatures of Quebec, Nova
Scotia and New Brunswick. Such was also the case with the colony of Prince Edward Island, as it
would be when the province of Manitoba was created. The provincial upper houses were all abolished
due to their redundancy and the costs they generated (David Smith, "The Senate of Canada and the
Conundrum of Reform" in Jennifer Smith (Dir.) The Democratic Dilemma – Reforming the Canadian
Senate, Montreal, McGill-Queen's University Press, 2009, p. 11, at p. 13.).
An Act Respecting the Legislative Council, Revised Statutes of Canada, 1859 (22 Vict.), c. 1, s. 1.
When Prince Edward Island joined Confederation in 1873, four of these seats were allocated to
the new province.
With the addition of British Columbia in 1871, and the creation of Manitoba in 1870, Alberta and
Saskatchewan in 1905, a fourth region was created, which also was allocated 24 senators. Six
senators were added when Newfoundland joined Canada, as were one for each of the federal

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Quebec that corresponded to those of the Legislative Council of the province of Canada
for Lower Canada in order to protect the province's Anglophone and Protestant minority.
[9]
Historians recognize that for the fathers of confederation, the Senate would have
the following functions:
• Regional representation (three then four regions);
• Representation of Quebec's Anglophone minority;
• Sober second thought for bills and amendments to them;
• Providing oversight to those who were wealthy, including the possibility of
controlling any excesses of elected officials.

[10] Over time, the Senate also became the legislative chamber for the introduction of
certain kinds of legislation by the government; particularly laws such as those that were
technical or uncontroversial (of which omnibus bills would be an example) apart from
money bills.
[11] In the same manner, as members of parliament, senators could influence a
multitude of ministerial or cabinet decisions, especially if they formed part of the
government caucus.
[12] In fact, it seems that the Senate and its members play a significant role in federal
political life, and that the institution is not simply a mirror of the House of Commons. 5
[13] For a variety of reasons, there are those who publicly advocate the abolition of
the Senate, or at least the reform of an institution whose usefulness, as it currently
stands, is debateable. Such considerations, however, are not relevant for the purposes
of this reference, which does not address the legitimacy or the necessity of the
proposed changes to the method by which senators are selected and the duration of
their term of office. These questions are purely political. The Court, however, is only
called upon to give its opinion on the question of whether under the Constitution, the
participation of the provinces is necessary to render these amendments valid.
[14] Before concluding this succinct contextual summary, it should be noted that the
great majority of federations have a bicameral legislature, with the second one often
called the Senate.6
5

6

territories. In total, there are 105 senate seats.
See: Andrew Heard, "Assessing Senate Reform Through Bill C-19: The Effects of Limited Terms
for Senators" in Jennifer Smith (Dir.) The Democratic Dilemma – Reforming the Canadian Senate,
Montreal, McGill-Queen's University Press, 2009, p. 117.
See Robert L. Watts, "Federal Second Chambers Compared", in Jennifer Smith (Dir.), The
Democratic Dilemma – Reforming the Canadian Senate, Montreal, McGill-Queens University Press,
2009, p. 35.

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RELEVANT CASE LAW

[15] In December of 1979, the Supreme Court emphasized in Re: Authority of
Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, at p. 66 that: "The
Senate has a vital role as an institution forming part of the federal system created by the
Act."7
[16]

It described its functions in the following manner:
A primary purpose of the creation of the Senate, as a part of the federal
legislative process, was, therefore, to afford protection to the various sectional
interests in Canada in relation to the enactment of federal legislation. (p. 67).
[…]
The power to enact federal legislation was given to the Queen by and with the
advice and consent of the Senate and the House of Commons. Thus, the body
which had been created as a means of protecting sectional and provincial
interests was made a participant in this legislative process. (p. 68).
[…]
For the reasons already given in respect of Question 1, it is our view that
Parliament cannot under s. 91(1) impair the role of the Senate in that process.
(p. 75).
[…]
As previously noted, the system of regional representation in the Senate was one
of the essential features of that body when it was created. Without it, the
fundamental character of the Senate as part of the Canadian federal scheme
would be eliminated. (p. 76).
[…]
Sub-question (e) paragraph (iv) deals with the possible selection of all or some
members of the Senate by direct election by the public. The substitution of a
system of election for a system of appointment would involve a radical change in
the nature of one of the component parts of Parliament. As already noted, the
preamble to the Act referred to “a constitution similar in principle to that of the
United Kingdom”, where the Upper House is not elected. In creating the Senate
in the manner provided in the Act, it is clear that the intention was to make the
Senate a thoroughly independent body which could canvass dispassionately the
measures of the House of Commons. This was accomplished by providing for the

7

Meaning the Constitution Act, 1867.

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appointment of members of the Senate with tenure for life. To make the Senate a
wholly or partially elected body would affect a fundamental feature of that body.
We would answer this sub-question in the negative. (p. 77).

[17] Thus, as the Senate is a fundamental component of the federal compromise in
1867, the Supreme Court held in the Reference re the Upper House that its essential
characteristics, including the method of selecting its members, could not be amended
without the provinces' participation. In so doing, it rejected the federal government's
submissions that Parliament could act alone pursuant to its power to amend the
Constitution under subsection 91(1) of the Constitution Act, 1867 (a provision since
repealed with the coming into force of the Constitution Act, 1982 and replaced by
section 44 of the latter).
[18] Finally, in Reference re the Secession of Quebec, [1998] 2 S.C.R. 217, the
Supreme Court recalled that our Constitution is based on several principles, one of
which is federalism as a system of the country's government, including the amendment
of its institutions.
THE PARTIES' ARGUMENTS
[19] Under the provisions of Bill C-7, the federal government envisaged two types of
reform: first, to limit the office of senator to a non-renewable term of nine years; and,
second, to hold elections prior to the nomination of senators.
[20] The Bill expressly recognized the amendment of section 29 of the Constitution
Act, 1867 relating to the term of office of senators, but did not purport to amend any
other provision of the Constitution.
[21] The Attorney General of Quebec argues that Bill C-7 de facto amended section
24 of the Constitution Act, 1867 relating to the method of selecting senators by
providing, in reality, for their election rather than their appointment.
[22] According to the Attorney General of Quebec, such reforms are contemplated by
paragraph 42(1)(b) of the Constitution Act, 1982, and could only be implemented in
accordance with subsection 38(1), that is, with the consent of seven provinces whose
population in the aggregate is equal to 50% of the ten Canadian provinces (the general
amending procedure of 7/50).8 Subsidiarily, he contends that the change in the method
of selection of senators would have affected the office of the Governor General, which
therefore requires the consent of Parliament and all of the provinces pursuant to section
41 of the Constitution Act, 1982. Last, he asserts that the proposed reduction of the
term of office of a senator to nine years amended a fundamental characteristic of the
Senate, that of appointment for life, which also requires the consent of Parliament and
two-thirds of the provinces in accordance with the 7/50 general amending formula.
8

Thus, without including the population of the territories.

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[23] The Attorney General of Canada argues instead that Parliament can act
unilaterally in these matters pursuant to section 91 (peace, order and good government)
of the Constitution Act, 1867 and section 44 of the Constitution Act, 1982.
[24] As for the three interveners, in essence they agree with the position of the
Attorney General of Quebec with respect to the obligatory participation of the provinces
in the proposed amendments. Senator Joyal insists on the constitutional provision
relating to the office of the Governor General and the need for unanimity to either
transform or abolish the Senate. With respect to Francophones outside Quebec and
Acadians, they contend that one of the current Senate's essential characteristics is the
representation of the country's linguistic minorities, which, from their perspective, can
only be amended pursuant to section 38 of the Constitution Act, 1982 (the 7/50 general
amending formula).
THE CONSTITUTIONAL AMENDING PROCEDURE
[25] Since the patriation of the Constitution, Part V of the Constitution Act, 1982
constitutes a complete code that describes the various procedures applicable to any
amendment of the Constitution (Re: Objection by Quebec to a Resolution to amend the
Constitution, [1982] 2 S.C.R. 793, at p. 806).
[26] Part V contemplates five distinct procedures depending on the nature of the
proposed amendment. In a judgment of this Court, Potter v. Quebec (Attorney General),
[2001] R.J.Q. 2823 (C.A.), leave to appeal to the Supreme Court of Canada denied on
October 31, 2002, [2002] 3 S.C.R. x, Baudouin, J.A. summarized them as follows:
[Translation]
[12]
The first is the general procedure (sections 38, 39 and 40 of the
Constitution Act, 1982) that requires the agreement of the federal government
and at least seven provinces having in the aggregate at least 50% of the
population.
[13]
The second is the unanimous procedure (section 41) that covers only a
certain number of matters judged to be of particular importance (for example the
use of French or English, the office of the Queen, the Governor-General or the
Lieutenant Governor of a province).9
[14]
The third is the simplified general procedure specified for 6 matters
enumerated therein (section 42).

9

Following the 1995 provincial referendum, Parliament precluded the government from proposing
a constitutional amendment based on the 7/50 formula without the agreement of the National
Assembly: An Act respecting constitutional amendments, S.C. 1996, c. 1.

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[15]
The fourth is the unilateral procedure (sections 44 and 45) that permits
Parliament alone to amend the constitution relating to federal executive power,
the Senate and the House of Commons as well as providing the same powers to
the provinces with respect to their constitutions.
[16]

Finally, the fifth procedure, …, is the bilateral procedure (section 43).

[27] With respect to the Senate, pursuant to section 42 of the Constitution Act, 1982,
the consent of seven provinces representing in the aggregate at least fifty per cent of
the population of all the provinces is required with respect to amendments relating to the
following four matters (in French, "questions"):
• the powers of the Senate;
• the method of selecting senators;
• the number of senators allocated to each province;
• the residence requirements they must fulfil (section 42).

[28] Pursuant to section 44, but subject to sections 41 and 42, Parliament may act
unilaterally to amend the Constitution with respect to the Senate as follows:
44.

Sous réserve des articles 41 et 42, le
Parlement a compétence exclusive pour
modifier les dispositions de la Constitution du
Canada relatives au pouvoir exécutif fédéral,
au Sénat ou à la Chambre des communes.

44.

Subject to sections 41 and 42,
Parliament may exclusively make laws
amending the Constitution of Canada in
relation to the executive government of
Canada or the Senate and House of
Commons.

[29] With respect to sections 38 and 41 of the Constitution Act, 1982, they were not
drafted with a view to applying to amendments to the Constitution relating to the Senate
as an existing entity; rather, these amendments are governed by either section 44 or
section 42. Nevertheless, unanimity would be required (section 41) to abolish the
Senate, since, subject to section 47, it is an institution whose agreement is required for
all amendments to the Constitution, save for those contemplated by section 45. It
follows that the abolition of the Senate would amend the Constitution's amending
procedure, which would thus require the consent of Parliament and all the country's
provincial legislatures (section 41).
[30] Determining whether a constitutional amendment relating to the Senate is subject
to section 42 or section 44 is achieved by taking account of its terminology, as well as
its philosophical and historical context in order to establish its true meaning and purpose
(R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344).

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[31] In interpreting these provisions, the underlying principles of the Constitution
"assist in the interpretation of the text" (Reference re the Secession of Quebec, [1998 2
S.C.R. 217, para. 52), even if they should only be used with prudence in order not to
diminish the importance of the Constitution's written text (British Columbia v. Imperial
Tobacco Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49, para. 65.)
[32] The four matters set out in section 42 must therefore be given an autonomous
interpretation that reflects the importance of the Senate in the pre-confederation
compromise. This interpretation should also reflect the historical reality surrounding the
adoption of section 42 in 1982, the numerous unsuccessful attempts up to then to
abolish, modify or replace the upper house, as well as the Reference re the Upper
House.
[33] A teleological interpretative approach must be adopted. Thus, it would be wrong
to say that section 44 contains the rule of general application while section 42
enumerates exceptions to Parliament's power to act unilaterally. The latter provision
should not be interpreted so restrictively.
[34] In reality, each of these provisions is part of the same constitutional logic; the true
nature of amendments to the Constitution relating to the Senate deal either with its
internal management or its established characteristics in order to fulfill its role within the
federal legislative structure, in particular those of ensuring provincial and regional
representation and examining bills with sober second thought.
[35] In the first of these situations, only Parliament has an interest and can act
unilaterally. The protection against abuse of this power lies in the Senate itself since it
has a veto over such amendments (section 47 of the Constitution Act, 1982, which does
not apply to section 44). In the second situation, the provinces also have an interest and
their agreement is necessary in accordance with the 7/50 formula. As for the Senate, it
does not then have the power of an absolute veto (section 47).
[36] Section 44 is thus the equivalent for Parliament of section 45 for provincial
legislatures. These provisions have the same objective: to permit each level of
government to amend its internal constitution, especially with respect to their legislative
institutions, their inter-relationship and powers. 10 The ability to act unilaterally in this
sphere of an internal constitution is easily understood, since the purpose is to preserve
the independence and indeed sovereignty of each level of government.
[37] Unlike provincial legislatures, however, certain characteristics of the Senate flow
from the pre-confederative compromise. It must therefore be recognized that the
provinces have an interest in those characteristics. Thus, contrary to the internal
constitution of a province, Parliament's power to amend the internal federal constitution

10

Excluding the Regal Office.

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is limited by the fact that it cannot amend those aspects of its structure that affect
provincial interests.
[38] Such is the essence of the inter-relationship between sections 42 and 44, on the
one hand, and sections 44 and 45, on the other hand.
[39] The four characteristics of the Senate in which the provinces have an interest are
those set out in section 42 of the Constitution Act, 1982. That provision codifies the
opinion of the Supreme Court of Canada in Reference re the Upper House relating to
provincial interest with respect to the powers of the Senate, the method of selection of
its members, their residence requirements and the number of seats allocated to each
region and province. The unilateral amending power pursuant to section 44 of the
Constitution cannot apply to these matters, such as was also the case under the now
repealed subsection 91(1) of the Constitution Act, 1867 (Reference re the Upper House,
supra).
[40] The interpretation of section 42 must also take account, in particular, that
because of the inability of the federal government and the provinces to agree in 1982 on
a total reform of the Constitution, including the Senate, amongst other institutions, the
framers decided to postpone further discussion of the matters it contains, while
specifying the applicable amending procedure to incorporate an eventual consensus in
the Constitution.
[41] While section 44 relates to the amendment of existing provisions of the
Constitution, section 42 addresses the amendment of the Constitution bearing on the
matters enumerated therein, which is broader than the mere amendment of existing
provisions. Section 42 "[translation] aligns itself well with the adoption of entirely new
provisions relating to one of the matters", to quote professors Morin and Woehrling. 11
[42] In addition, it cannot be contended that in the absence of a sufficient consensus
based on the 7/50 formula, Parliament can legislate by adopting an ordinary statute
relating to the matters for which section 42 recognizes a provincial interest, on the
condition it does not formally amend the written text of the Constitution. This is so for
several reasons.
[43] At the outset, it follows from the principle of supremacy of the Constitution that
political actors must comply with its text and its spirit. They cannot circumvent it on the
pretext that the constitutional amending process is complex or demanding. In fact, the
Constitution precludes the circumvention of its amending process (Quebec Secession
Reference, supra, at paras. 73 & 74; John White, "Senate Reform: What Does the
Constitution Say?" in Jennifer Smith, (Dir.), The Democratic Dilemma: Reforming the
Canadian Senate, supra, 2009, p.97.)12
11

Jacques-Yvan Morin and José Woehrling, Les constitutions du Canada et du Québec: du regime
français à nos jours, Tome 1 "Études", Montreal, Éditions Thémis, 1994, p.516.

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[44] To do otherwise would disregard the principles of federalism, constitutionalism
and the supremacy of law, of which the Constitution heads the list. As the Supreme
Court reminds us in the Quebec Secession Reference, supra, at para. 77:
In this way, our belief in democracy may be harmonized with our belief in
constitutionalism. Constitutional amendment often requires some form of
substantial consensus precisely because the content of the underlying principles
of our Constitution demand it. By requiring broad support in the form of an
"enhanced majority" to achieve constitutional change, the Constitution ensures
that minority interests must be addressed before proposed changes which would
affect them may be enacted.

[45] Next, it is clear that with respect to the matters mentioned in section 42, the
framers recognized that the provinces' interest in them, and thus postponed any
amendment relating to such matters until the required consensus had developed. In the
meantime, until such a consensus emerged, the powers of the Senate, the method of
selecting its members (the appointment process by the Governor General in the name
of Her Majesty until retirement upon attaining the age of 75 years), 13 the number of
senators and their residence requirements could not be amended by Parliament acting
alone, with or without a constitutional amendment.
[46] Third, Parliament's power to make laws for the peace, order and good
government of the country (section 91 of the Constitution Act, 1867) could not be
interpreted as allowing it to disregard the principles of federalism or constitutionalism. If
Parliament could change the status quo by an ordinary statute with respect to the
matters enumerated in section 42, the development of a consensus with the provinces
would become unnecessary. As a result, the federal government would have no
incentive to achieve a consensus based on the 7/50 formula.
[47] Finally, section 42 cannot be read as reflecting a consensus between the federal
and provincial governments in 1982 to preserve the formalism but not the reality with
respect to the matters set out therein, including the method of selecting senators.
Limiting the constitutional protection afforded by section 42 to the formal power of the
Governor General to name senators would appear to be not easily defensible. In that
regard, what interest would the provinces have had when the Constitution Act, 1982
was adopted to protect a juridical reality that, even then, was inconsistent with political
reality?

12

13

To the same effect, in Attorney General of Nova Scotia v. Attorney General of Canada, [1951]
S.C.R. 31, at p. 36, interdelegation was disapproved, as it would permit Parliament and the provincial
legislatures to indirectly amend the division of powers without having amended the constitution. In
Ladore v. Bennett, [1939] A.C. 468 (P.C.), at p. 474, the Privy Council held that a level of government
"cannot do indirectly what it cannot do directly".
See sections 24, 26 and 32 of the Constitution Act, 1867; Reference re the Upper House, supra,
p. 77.

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[48] In conclusion, the status quo with respect to the matters mentioned in section 42,
and in particular that of the method of selecting senators (named until the age of 75) will
have to continue since as a matter of logic neither section 44 of the Constitution Act,
1982 nor section 91 of the Constitution Act, 1867 apply to them. In this respect, section
42 prescribes not only the amendment procedure for such matters, but recognizes that
they are not within the sole jurisdiction of Parliament, as the Supreme Court held in
Reference re the Upper House, supra.
[49] Next to be examined is the meaning of the only other relevant provision:
paragraph 42(1)(b) of the Constitution Act, 1982:
42. (1) Toute modification de la Constitution du 42. (1) An amendment to the Constitution of
Canada portant sur les questions suivantes se Canada in relation to the following matters may
fait conformément au paragraphe 38(1) :
be made only in accordance with subsection
38(1):
[…];
[…];
b) les pouvoirs du Sénat et le mode de
sélection des sénateurs;
(b) the powers of the Senate and the method
of selecting Senators;

[50] The current method of selecting senators is what paragraph 42(1)(b)
contemplates, and not the formal power of appointment vested in the Governor General.
The words the framers chose indicate a desire not to limit paragraph 42(1)(b) of the
Constitution Act, 1982 to the culminating gesture by which the Governor General
appoints someone. In effect, this paragraph does not address the method of
appointment, but rather the method of selection of senators, implying that it covers the
process leading to appointment. The comments of Professor Charles-Emmanuel Côté
in "L'inconstitutionnalité du projet d'élections fédérales sénatoriales", (2010) 3 Revue
québécoise de droit constitutionnel 81, at p. 83, warrant mention:

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[Translation]
According to the Petit Robert de la langue française selection is "the act of
choosing the best suited individuals", while nomination is "the act of naming
someone to a job or office", and that naming someone means "designation,
choosing a person of one's own authority, to fulfill a function or office". The word
"selection" refers to the general concept of choosing or making a choice, while
nomination refers to the more precise concept of designating someone to fulfill a
function. The use in paragraph 42(1)(b) of the word "selecting" seems to indicate
by itself what is contemplated, which is the entire process leading to the
appointment of someone to the Senate, but its combination with the word
"method" confirms this broad interpretation. Still according to the Petit Robert de
la langue française, "method" means "the particular manner by which something
is accomplished", which refers to the manner or the process by which an action is
effected.
The English version of the Constitution Act, 1982 confirms this broad
interpretation of the expression "mode de selection des sénateurs" ["method of
selecting senators"]. According to the Concise Canadian Oxford Dictionary,
"selection" means "the act of the instance of selecting", while "select" means
"choose as the best or more suitable". The English version, however, clarifies
particularly well the broad sense of what is encompassed by the expression
"method of selection of senators" in light of the definition of the word "method".
Still according to the same dictionary, "method" means "a mode of procedure", "a
defined or systemic way of doing a thing", "orderliness", "regular habits", all of
which clearly refers to the process of selection leading to the appointment of
someone to the Senate.

BILL C-7 AND THE REGAL OFFICE
[51] The Regal Office (that of the Queen, the Governor General and the Lieutenant
Governor of a province) cannot be amended or abolished without the agreement of
Parliament and all of the provinces (section 41 of the Constitution Act, 1982).
[52] Pursuant to section 24 of the Constitution Act, 1867, the Governor General
summons persons to the Senate on behalf of the Queen.
[53] In fact, however, the constitutional conventions of the day are to the effect that
the Governor General's power can only be exercised on the advice of the Prime Minister
of Canada, a practice that was recognized in the minutes of the Privy Council for
Canada from July 13, 1896 to October 25, 1935.

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[54] Moreover, as of 1890, the holder of the office of Governor General who was
named by the British Prime Minister was associated in the process that preceded a
recommendation to the sovereign. This practice continued to evolve to the point that
after the imperial conferences of 1926 and 1930, the sovereign only took advice from
the Prime Minister of Canada. The Supplementary Letters Patent of 1931 and 1947
would confirm that the Governor General had become a Canadian institution whose
occupant could only act on the advice of the Prime Minister.
[55] In reality, the appointment of senators became the exclusive prerogative of the
Prime Minister who was then in office whenever a vacancy occurred. Within this
context, since 1867, Prime Ministers have filled almost 95% of Senate appointments
with persons who were subsequently aligned with the political party then forming the
government (Christopher P. Manfredi, Avis d'expert sur les effets possibles du projet de
loi C-7, May 2013, para. 21), several of whom were former elected members or
defeated candidates.
[56] In the present matter, nothing in Bill C-7 affected the Regal Office or the power of
the Governor General to summon persons to the Senate. In fact, the Governor General
would have formally continued to name such persons on the recommendation of the
Prime Minister.
[57] With respect to the practices the Prime Minister follows prior to recommending
someone for appointment, apart from the limits arising out of the Constitution, including
section 42 of the Constitution Act, 1982, they are matters of convention, precedent and
the realities of politics. Their amendment requires no recourse to the constitutional
amending process contemplated in Part V of the Constitution Act, 1982 (Benoît Pelletier,
La modification constitutionnelle au Canada, Scarborough (Ont), Carswell, 1996, p.
104.) Furthermore, the great majority of constitutional law scholars disagree with the
view that the relations between the Prime Minister and the Governor General become
part of the written constitution (B. Pelletier, supra, p. 100-102; Peter W. Hogg,
Constitutional Law of Canada, vol. 1, 5th ed., loose-leaf edition, Toronto, Carswell,
2012, no. 9.3, p. 9-5; Patrick J. Monahan and Byron Shaw, Constitutional Law, 4th ed.
Toronto, Irwin Law, 2003, p. 190-191, 208).
[58] Moreover, to assimilate an amendment of the powers of the Prime Minister with
those of the Governor General for the purposes of paragraph 41(a) of the Constitution
Act, 1982 would limit Parliament's powers because of a constitutional convention. Such
a limitation does not exist, or at a minimum, does not concern the courts.
[59] On the contrary, constitutional conventions are not justiciable, contrary to the text
of the Constitution, which by its nature is susceptible of evolution, as Hogg, ( supra, no.
1.10(e), p. 1-29) affirms:
[T]he conventions allow the law to adapt to changing political realities without the
necessity for formal amendment.

500-09-022626-121

PAGE: 15

[60] If Parliament were precluded from amending a constitutional convention by the
adoption of a statute, this would a fortiori imply that conventions could never be
amended by the conduct of political actors. Such reasoning shows that subjecting
constitutional conventions to the amending procedure is untenable.
[61] Finally, since paragraph 42(1)(b) of the Constitution Act, 1982 deals specifically
with the method of selection of senators and the means by which the Constitution can
be amended in this respect, it cannot be contended that such an amendment requires
the unanimity contemplated by paragraph 41(a) concerning the Regal Office. The
meaning of these two provisions must be determined in such a manner that they are
coherent when read together, which means that an amendment contemplated by
paragraph 42(1)(b) cannot at the same time be subject to the process of unanimous
consent pursuant to paragraph 41(a) because of the need to interpret the words "the
office…of the Governor General" reasonably.
BILL C-7 and PARAGRAPH 42(1)(b)
[62] As previously mentioned, the parties do not agree on the true meaning of the
provisions of Bill C-7 concerning the stages prior to the appointment of someone to the
Senate. The Attorney General of Quebec takes the view that the proposed process
amounted to an amendment to the method of selecting senators that is governed by
paragraph 42(1)(b) of the Constitution Act, 1982. The Attorney General of Canada, on
the other hand, contends that Parliament would have been asked to put in place a
consultative procedure to assist the Prime Minister before he made a recommendation
to the Governor General. In so doing, Parliament would thus have been exercising its
legislative power to adopt laws for the peace, order and good government of Canada
(section 91 of the Constitution Act, 1867).
[63] The character of a legislative text may be analysed both in function of its object
and effect.
[64] With respect to the object, a distinction can be drawn between "[i]ntrinsic
evidence, such as purpose clauses and the general structure of the statute", and
"[e]xtrinsic evidence, such as Hansard or other accounts of the legislative process":
Reference re Securities Act, [2011] 3 S.C.R. 837, 2011 SCC 66, para. 61.
[65] In this matter, the title and the first four paragraphs of the Senate Reform Act
were revealing as to the government's objective:
Loi concernant la sélection des
sénateurs et modifiant la Loi
constitutionnelle de 1867 relativement
à la limitation de la durée du mandat
des sénateurs

An Act respecting the selection of
senators
and
amending
the
Constitution Act, 1867 in respect of
Senate term limits

500-09-022626-121

PAGE: 16

Attendu :
qu’il est important que les institutions
représentatives
du
Canada,
notamment le Sénat, continuent
d’évoluer de concert avec les
principes d’une démocratie moderne
et les attentes des Canadiens;

Whereas it is important that Canada’s
representative institutions, including
the Senate, continue to evolve in
accordance with the principles of
modern
democracy
and
the
expectations of Canadians;

que le gouvernement du Canada s’est
engagé à explorer des façons de
permettre au Sénat de mieux refléter
les
valeurs
démocratiques
canadiennes et de mieux répondre
aux besoins des régions du Canada;

Whereas the Government of Canada
has undertaken to explore means to
enable the Senate better to reflect the
democratic values of Canadians and
respond to the needs of Canada’s
regions;

qu’en 1987 les premiers ministres du
Canada ont convenu, à titre de
mesure provisoire jusqu’à ce que la
réforme du Sénat soit réalisée, que
les sièges vacants au Sénat soient
comblés au moyen d’une liste de
candidats sénatoriaux présentée par
le gouvernement de la province ou du
territoire visés;

Whereas in 1987 the First Ministers of
Canada agreed, as an interim
measure until Senate reform is
achieved, that any person summoned
to fill a vacancy in the Senate is to be
chosen from among persons whose
names have been submitted by the
government of the province or territory
to which the vacancy relates;

qu’il est indiqué que les personnes
dont la candidature est proposée au
Conseil privé de la Reine pour le
Canada en vue de leur nomination au
Sénat soient choisies par voie d’une
élection
démocratique
par
la
population de la province ou du
territoire qu’elles représenteront;

Whereas it is appropriate that those
whose names are submitted to the
Queen’s Privy Council for Canada for
summons
to
the
Senate
be
determined by democratic election by
the people of the province or territory
that a senator is to represent;
[…]

[…]
[Emphasis added.]

[66] Those who promoted Bill C-7 placed emphasis on "democratic values" and the
fact that the Senate should better reflect them. Even more important was that Bill C-7
stated the clear objective of having names submitted to the Privy Council "for summons
to the Senate be determined by democratic election". The purpose of Bill C-7 was not

500-09-022626-121

PAGE: 17

simply to create a consultative process, but to make the Senate a truly democratic
institution.
[67] The scheme leading to the election of candidates also illustrated the seriousness
and importance of the electoral process. Candidates could be associated with provincial
political parties (Bill C-7, Schedule, section 3) and could be identified as such on the
electoral ballot (Schedule, section 19). Bill C-7 also contained several provisions meant
to ensure an equitable process: provincial legislation, which generally includes penal
offences, could apply (Schedule, sections 27, 31, 39), candidates could have an
electoral agent and the manner in which votes were to be cast was set out (Schedule,
section 35). Finally, several provisions regulated the determination of the electoral
result, including recounts (Schedule, section 24), the procedure to be followed when
there was a tie vote (Schedule, subsection 21(4)), and the legal recourse available
when there was a controverted election (Schedule, section 26).
[68] In short, the legislative framework was much more elaborate than a mere
consultative process prior to a recommendation being made to the Governor General. It
had all the attributes of a law regulating elections.
[69]

The effect of Bill C-7 suggested a similar result.

[70] Bill C-7 did not oblige a province to organize senatorial elections. If a province
chose to do so, the process contemplated would nevertheless have had to substantially
respect the requirements set out in the Schedule to Bill C-7. If a province chose not to
do so, that process would be unchanged.
[71] On the other hand, in provinces that wished to conduct such elections, a true
electoral contest might ensue in every respect, conducted as if it were a provincial
election. Thereafter, the name of the candidate having obtained the most votes would
be transmitted to the Prime Minister.
[72] It is true that the text of Bill C-7 did not appear to oblige the Prime Minister to
recommend to the Governor General only someone who had previously obtained the
greatest number of votes at an election held in a province to represent it in the Senate,
but only to take account of the result of the election. Nevertheless, it is clear from its text
and the extrinsic evidence in the record, in particular the comments of the Prime
Minister on the subject and those of other representatives of the government, that
considerable if not determinative weight would be given to the electoral result.
[73] In practice, if the Prime Minister were not to give effect to the electoral result, it is
obvious that the whole exercise would have been a sham, and provinces would lose
interest in keeping it in place. The same impact would be seen on the participation of
provincial political parties, without even considering the effect on potential candidates
and electors.

500-09-022626-121

PAGE: 18

[74] It is equally obvious that once the Governor General would have named
someone, that person could legitimately claim to have obtained the support of the
provincial population or the senatorial district in question, as the case may be. As Bill C7 provided, that person could claim to have been selected "by democratic election by
the people of the province…".
[75] On the whole, when the real meaning and true character of Bill C-7 is analyzed, it
unquestionably constituted an attempt to significantly amend the current method of
selecting senators, that is, an appointive process until 75, the age of retirement. Such
an amendment could only have been implemented as the result of the federal-provincial
consensus paragraph 42(1)(b) of the Constitution Act, 1982 contemplates.
[76] The agreement of a majority of the provinces based on the 7/50 formula would
therefore have been required.
[77] Moreover, it would have been aberrant to impose Bill C-7 on the provinces when
it required the holding of elections conducted in accordance with provincial laws, with
independent candidates or those endorsed by provincial political parties, without having
discussed it with them and in the absence of a consensus that the 7/50 formula affords
them.
[78] Finally, Bill C-7 would be unconstitutional in that it permitted the amendment of
the method of selection of senators as the provinces may choose at the choice of the
province concerned, which, in 1982, the framers sought to prevent by specifying in
subsection 42(2) of the Constitution Act, 1982 that an amendment adopted relative to a
matter contained in subsection 42(1) applies throughout Canada, without any possibility
of exclusion. The framers intended that amendments made with respect to the matters
mentioned in paragraph 42(1)(b) be uniform and ones of general application.
*****
[79] Bill C-7 would also have limited the duration of a senator's term of office to a
nine-year non-renewable mandate. This amendment to section 29 of the Constitution
Act, 1867 appeared to be based on the proposed scheme of selecting senators that
would have been electoral and, according to the sixth paragraph of its preamble, that
"the tenure of senators should be consistent with modern democratic principles". This
would appear to be an accessory to the rest of Bill C-7, with the result that its outcome
will be the same as for the rest of the Bill under review in this opinion.
[80] Moreover, it is apparent from paragraph 42(1)(b) of the Constitution Act, 1982
that the framers recognized not only a provincial interest both with respect to the powers
of the Senate and the method of selection if its members, but also in their relationship
with each other by dealing with them in the same paragraph.

500-09-022626-121

PAGE: 19

[81] The framers thus acted on what the Supreme Court held in Reference re the
Upper House, supra, when it wrote, at pages 76 & 77:
At present, a senator, when appointed, has tenure until he attains the age of
seventy-five. At some point, a reduction of the term of office might impair the
functioning of the Senate in providing what Sir John A. Macdonald described as
“the sober second thought in legislation”. The Act contemplated a constitution
similar in principle to that of the United Kingdom, where members of the House of
Lords hold office for life. The imposition of compulsory retirement at age seventyfive did not change the essential character of the Senate. However, to answer
this question we need to know what change of tenure is proposed.
[Emphasis added.]

[82] The Supreme Court thus recognized that the duration of a senatorial mandate
was intimately related to the Senate's powers and functioning, just as would be the
method of selecting its members. In reality, an amendment to the duration of that
mandate could affect both the powers of the Senate and the method of selecting
senators.
[83] It follows that the provinces have an interest in the replacement of an
appointment for life until the age of 75 by a mandate of pre-determined duration. The
proposed amendment could not have been governed by section 44 of the Constitution
Act, 1982.
[84] The foregoing extract from the Supreme Court's reasoning also shows the
difficulty inherent in the establishment of an appropriate relationship between powers,
on the one hand, and the duration of a mandate, on the other hand. It would be difficulty
for courts to trace clear guidelines on which side it could be affirmed unhesitatingly that
the Senate's functioning is unaffected by the method of selecting senators. As well, the
transformation from a lifetime mandate to one not exceeding nine years constitutes a
significant qualitative change. In such circumstances, it is more logical to conclude that
the framers chose to leave the determination of the duration of a senate mandate to
political actors rather than to the courts, and that paragraph 42(1)(b) includes the
duration of a mandate within the matters of powers and method of selection.
*****
[85] In conclusion, Bill C-7, if it had been adopted, would have been unconstitutional
without the agreement of the majority of the provinces pursuant to subsection 38(1) of
the Constitution Act, 1982, since its true nature was to amend the method of selection of
senators and the powers of the Senate without having respected the applicable
amending procedure. In reality, Bill C-7 attempted to circumvent that procedure.

500-09-022626-121

PAGE: 20

THE ABSENCE OF OTHER PROTECTED CHARACTERISTICS
[86] The third question raises the possibility that there are characteristics of the
Senate other than those covered by section 42 that could be considered fundamental or
essential, which could not be amended except by complying with the general amending
procedure set out in section 38 of the Constitution Act, 1982.
[87] With respect for those who hold this view, the Court is of the opinion that in 1982
the framers decided that the Senate's only characteristics as an existing institution
requiring the agreement of the provinces before being amended were those set out in
subsection 42(1) of the Constitution Act, 1982: its powers and the method of selecting
its members (paragraph 42(1)(b); the number of senators per province and their
residence requirements (paragraph 42(1)(c).
[88] It would be an incoherent interpretation of Part V of the Constitution Act, 1982 to
consider that there are other essential characteristics of the Senate as an existing
institution that are implicitly protected by section 38.
ANSWERS TO THE REFERENCE QUESTIONS
[89]

The Court's answers to the Reference questions are as follows:

Question 1: No
Question 2: Yes
Question 3: No

NICOLE DUVAL HESLER, C.J.Q.
PIERRE J. DALPHOND, J.A.
YVES-MARIE MORISSETTE, J.A.
ALLAN R. HILTON, J.A.
JULIE DUTIL, J.A.

500-09-022626-121
Mtre Jean-Yves Bernard
Mtre Jean-François Beaupré
BERNARD ROY (JUSTICE QUÉBEC)
For Attorney General of Quebec
Mtre David Lucas
Mtre Alexander Pless
Mtre Warren J. Newman
Mtre Marc Ribeiro
DEPARTMENT OF JUSTICE CANADA
For Attorney General of Canada
Honourable Senator Serge Joyal
In person
Mtre Christian E. Michaud
Mtre Serge Rousselle
COX & PALMER
For Société de l'Acadie du Nouveau-Brunswick
Mtre Sébastien Grammond (legal adviser)
DENTON CANADA LLP
Mtre Perri Ravon
Mtre Mark C. Power
Mtre Jennifer Klinck
HEENAN BLAIKIE
For Fédération des communautés francophones
et acadienne du Canada
Dates of hearing: September 10 and 11, 2013

PAGE: 21

500-09-022626-121

PAGE: 22
ANNEXE — APPENDIX

LOI CONSTITUTIONNELLE DE 1867 — CONSTITUTION ACT, 1867
[…]
Considérant que les provinces du
Canada, de la Nouvelle-Écosse et du
Nouveau-Brunswick ont exprimé le
désir de contracter une Union
Fédérale pour ne former qu’une seule
et même Puissance (Dominion) sous
la couronne du Royaume-Uni de la
Grande-Bretagne et d’Irlande, avec
une constitution reposant sur les
mêmes principes que celle du
Royaume-Uni
[…]


Whereas the Provinces of Canada,
Nova Scotia, and New Brunswick
have expressed their Desire to be
federally united into One Dominion
under the Crown of the United
Kingdom of Great Britain and Ireland,
with a Constitution similar in Principle
to that of the United Kingdom

24. Le gouverneur-général mandera
de temps à autre au Sénat, au nom
de la Reine et par instrument sous le
grand sceau du Canada, des
personnes ayant les qualifications
voulues; et, sujettes aux dispositions
de la présente loi, les personnes ainsi
mandées deviendront et seront
membres du Sénat et sénateurs.

24. The Governor General shall from
Time to Time, in the Queen’s Name,
by Instrument under the Great Seal of
Canada, summon qualified Persons to
the Senate; and, subject to the
Provisions of this Act, every Person
so summoned shall become and be a
Member of the Senate and a Senator.

29. (1) Sous réserve du paragraphe
(2), un sénateur occupe sa place au
Sénat sa vie durant, sauf les
dispositions de la présente loi.

29. (1) Subject to subsection (2), a
Senator shall, subject to the
provisions of this Act, hold his place in
the Senate for life.

(2) Un sénateur qui est nommé au
Sénat après l’entrée en vigueur du
présent paragraphe occupe sa place
au Sénat, sous réserve de la présente
loi, jusqu’à ce qu’il atteigne l’âge de
soixante-quinze ans.

(2) A Senator who is summoned to
the Senate after the coming into force
of this subsection shall, subject to this
Act, hold his place in the Senate until
he attains the age of seventy-five
years.

91. Il sera loisible à la Reine, de l’avis
et du consentement du Sénat et de la
Chambre des Communes, de faire
des lois pour la paix, l’ordre et le bon

91. It shall be lawful for the Queen, by
and with the Advice and Consent of
the Senate and House of Commons,
to make Laws for the Peace, Order,

500-09-022626-121

PAGE: 23

gouvernement
du
Canada,
relativement à toutes les matières ne
tombant pas dans les catégories de
sujets
par
la
présente
loi
exclusivement
assignés
aux
législatures des provinces; mais, pour
plus de garantie, sans toutefois
restreindre la généralité des termes
ci-haut employés dans le présent
article, il est par la présente déclaré
que (nonobstant toute disposition
contraire énoncée dans la présente
loi) l’autorité législative exclusive du
parlement du Canada s’étend à toutes
les matières tombant dans les
catégories de sujets ci-dessous
énumérés, savoir :

and good Government of Canada, in
relation to all Matters not coming
within the Classes of Subjects by this
Act assigned exclusively to the
Legislatures of the Provinces; and for
greater Certainty, but not so as to
restrict the Generality of the foregoing
Terms of this Section, it is hereby
declared
that
(notwithstanding
anything in this Act) the exclusive
Legislative Authority of the Parliament
of Canada extends to all Matters
coming within the Classes of Subjects
next hereinafter enumerated; that is to
say,

1. La modification, de temps à autre,
de la constitution du Canada, sauf
en ce qui concerne les matières
rentrant dans les catégories de
sujets que la présente loi attribue
exclusivement aux législatures des
provinces, ou en ce qui concerne les
droits ou privilèges accordés ou
garantis, par la présente loi ou par
toute autre loi constitutionnelle, à la
législature ou au gouvernement
d’une province, ou à quelque
catégorie de personnes en matière
d’écoles, ou en ce qui regarde
l’emploi de l’anglais ou du français,
ou les prescriptions portant que le
parlement du Canada tiendra au
moins une session chaque année et
que la durée de chaque chambre
des communes sera limitée à cinq
années, depuis le jour du rapport
des brefs ordonnant l’élection de
cette
chambre;
toutefois,
le
parlement du Canada peut prolonger
la durée d’une chambre des
communes en temps de guerre,

1. The amendment from time to time
of the Constitution of Canada,
except as regards matters coming
within the classes of subjects by this
Act assigned exclusively to the
Legislatures of the provinces, or as
regards rights or privileges by this or
any other Constitutional Act granted
or secured to the Legislature or the
Government of a province, or to any
class of persons with respect to
schools or as regards the use of the
English or the French language or
as regards the requirements that
there shall be a session of the
Parliament of Canada at least once
each year, and that no House of
Commons shall continue for more
than five years from the day of the
return of the Writs for choosing the
House: provided, however, that a
House of Commons may in time of
real or apprehended war, invasion or
insurrection be continued by the
Parliament of Canada if such
continuation is not opposed by the

500-09-022626-121
d’invasion ou d’insurrection, réelles
ou
appréhendées,
si
cette
prolongation n’est pas l’objet d’une
opposition exprimée par les votes de
plus du tiers des membres de ladite
chambre.
[…]
[paragraphe abrogé en 1982]
92. Dans chaque province la
législature pourra exclusivement faire
des lois relatives aux matières
tombant dans les catégories de sujets
ci-dessous énumérés, savoir :
1. L’amendement de temps à autre,
nonobstant
toute
disposition
contraire énoncée dans le présent
acte, de la constitution de la
province, sauf les dispositions
relatives à la charge de lieutenantgouverneur;
[…]
[paragraphe abrogé en 1982]

PAGE: 24
votes of more than one-third of the
members of such House.

[subsection repealed in 1982]
92. In each Province the Legislature
may exclusively make Laws in relation
to Matters coming within the Classes
of
Subjects
next
hereinafter
enumerated; that is to say,
1. The Amendment from Time to
Time, notwithstanding anything in
this Act, of the Constitution of the
Province, except as regards the
Office of Lieutenant Governor.

[subsection repealed in 1982]

LOI CONSTITUTIONNELLE DE 1982 — CONSTITUTION ACT, 1982
38. (1) La Constitution du Canada
peut être modifiée par proclamation
du gouverneur général sous le grand
sceau du Canada, autorisée à la fois :
a) par des résolutions du Sénat et
de la Chambre des communes;
b) par des résolutions des
assemblées législatives d’au moins
deux tiers des provinces dont la
population confondue représente,
selon le recensement général le plus
récent à l’époque, au moins cinquante
pour cent de la population de toutes
les provinces.

38. (1) An amendment to the
Constitution of Canada may be made
by proclamation issued by the
Governor General under the Great
Seal of Canada where so authorized
by
(a) resolutions of the Senate and
House of Commons; and
(b) resolutions of the legislative
assemblies of at least two-thirds of the
provinces that have, in the aggregate,
according to the then latest general
census, at least fifty per cent of the
population of all the provinces.

500-09-022626-121

PAGE: 25

(2)
Une
modification
faite
conformément au paragraphe (1)
mais dérogatoire à la compétence
législative, aux droits de propriété ou
à tous autres droits ou privilèges
d’une
législature
ou
d’un
gouvernement provincial exige une
résolution adoptée à la majorité des
sénateurs, des députés fédéraux et
des députés de chacune des
assemblées législatives du nombre
requis de provinces.
[…]

(2) An amendment made under
subsection (1) that derogates from the
legislative powers, the proprietary
rights or any other rights or privileges
of the legislature or government of a
province shall require a resolution
supported by a majority of the
members of each of the Senate, the
House of Commons and the
legislative assemblies required under
subsection (1).

41. Toute modification de la
Constitution du Canada portant sur
les questions suivantes se fait par
proclamation du gouverneur général
sous le grand sceau du Canada,
autorisée par des résolutions du
Sénat, de la Chambre des communes
et de l’assemblée législative de
chaque province :

41. An amendment to the Constitution
of Canada in relation to the following
matters may be made by proclamation
issued by the Governor General under
the Great Seal of Canada only where
authorized by resolutions of the
Senate and House of Commons and
of the legislative assembly of each
province:

a) la charge de Reine, celle de
gouverneur général et celle de
lieutenant-gouverneur;

(a) the office of the Queen, the
Governor General and the Lieutenant
Governor of a province;

b) le droit d’une province d’avoir à
la Chambre des communes un
nombre de députés au moins égal à
celui des sénateurs par lesquels elle
est habilitée à être représentée lors
de l’entrée en vigueur de la présente
partie;

(b) the right of a province to a
number of members in the House of
Commons not less than the number of
Senators by which the province is
entitled to be represented at the time
this Part comes into force;

c) sous réserve de l’article 43,
l’usage du français ou de l’anglais;

(c) subject to section 43, the use of
the English or the French language;

d) la composition de la Cour
suprême du Canada;

(d) the composition of the Supreme
Court of Canada; and

e) la modification de la présente
partie.

(e) an amendment to this Part.

500-09-022626-121

PAGE: 26

42. (1) Toute modification de la
Constitution du Canada portant sur
les questions suivantes se fait
conformément au paragraphe 38(1) :

42. (1) An amendment to the
Constitution of Canada in relation to
the following matters may be made
only in accordance with subsection
38(1):

a) le principe de la représentation
proportionnelle des provinces à la
Chambre des communes prévu par la
Constitution du Canada;

(a) the principle of proportionate
representation of the provinces in the
House of Commons prescribed by the
Constitution of Canada;

b) les pouvoirs du Sénat et le mode
de sélection des sénateurs;

(b) the powers of the Senate and
the method of selecting Senators;

c) le nombre des sénateurs par
lesquels une province est habilitée à
être représentée et les conditions de
résidence qu’ils doivent remplir;

(c) the number of members by
which a province is entitled to be
represented in the Senate and the
residence qualifications of Senators;

d) sous réserve de l’alinéa 41d), la
Cour suprême du Canada;

(d) subject to paragraph 41(d), the
Supreme Court of Canada;

e) le rattachement aux provinces
existantes de tout ou partie des
territoires;

(e) the extension of existing
provinces into the territories; and

f) par dérogation à toute autre loi ou
usage, la création de provinces.

(f) notwithstanding any other law or
practice, the establishment of new
provinces.

(2) Les paragraphes 38(2) à (4) ne
s’appliquent pas aux questions
mentionnées au paragraphe (1).

(2) Subsections 38(2) to (4) do not
apply in respect of amendments in
relation to matters referred to in
subsection (1).

43. Les dispositions de la Constitution
du Canada applicables à certaines
provinces seulement ne peuvent être
modifiées que par proclamation du
gouverneur général sous le grand
sceau du Canada, autorisée par des
résolutions du Sénat, de la Chambre
des communes et de l’assemblée
législative de chaque province
concernée.
Le
présent
article

43. An amendment to the Constitution
of Canada in relation to any provision
that applies to one or more, but not
all, provinces, including
(a) any alteration to boundaries
between provinces, and
(b) any amendment to any
provision that relates to the use of the

500-09-022626-121
s’applique notamment :
a) aux changements du tracé des
frontières interprovinciales;
b) aux modifications des
dispositions relatives à l’usage du
français ou de l’anglais dans une
province.

PAGE: 27
English or the French language within
a province,
may be made by proclamation issued
by the Governor General under the
Great Seal of Canada only where so
authorized by resolutions of the
Senate and House of Commons and
of the legislative assembly of each
province to which the amendment
applies.

44. Sous réserve des articles 41 et
42, le Parlement a compétence
exclusive
pour
modifier
les
dispositions de la Constitution du
Canada relatives au pouvoir exécutif
fédéral, au Sénat ou à la Chambre
des communes.

44. Subject to sections 41 and 42,
Parliament may exclusively make
laws amending the Constitution of
Canada in relation to the executive
government of Canada or the Senate
and House of Commons.

45. Sous réserve de l’article 41, une
législature a compétence exclusive
pour modifier la constitution de sa
province.

45. Subject to section 41, the
legislature of each province may
exclusively make laws amending the
constitution of the province.

47. (1) Dans les cas visés à l’article
38, 41, 42 ou 43, il peut être passé
outre au défaut d’autorisation du
Sénat si celui-ci n’a pas adopté de
résolution dans un délai de cent
quatre-vingts jours suivant l’adoption
de celle de la Chambre des
communes et si cette dernière, après
l’expiration du délai, adopte une
nouvelle résolution dans le même
sens.
[…]

47. (1) An amendment to the
Constitution of Canada made by
proclamation under section 38, 41, 42
or 43 may be made without a
resolution of the Senate authorizing
the issue of the proclamation if, within
one hundred and eighty days after the
adoption by the House of Commons
of a resolution authorizing its issue,
the Senate has not adopted such a
resolution and if, at any time after the
expiration of that period, the House of
Commons
again
adopts
the
resolution.

52. (1) La Constitution du Canada est
la loi suprême du Canada; elle rend
inopérantes
les
dispositions

52. (1) The Constitution of Canada is
the supreme law of Canada, and any
law that is inconsistent with the

500-09-022626-121

PAGE: 28

incompatibles de toute autre règle de
droit.

provisions of the Constitution is, to the
extent of the inconsistency, of no
force or effect.

(2) La Constitution
comprend :

(2) The
includes

du

Canada

Constitution

of

Canada

a) la Loi de 1982 sur le Canada, y
compris la présente loi;

(a) the Canada Act 1982, including
this Act;

b) les textes législatifs et les
décrets figurant à l’annexe;

(b) the Acts and orders referred to
in the schedule; and

c) les modifications des textes
législatifs et des décrets mentionnés
aux alinéas a) ou b).

(c) any amendment to any Act or
order referred to in paragraph (a) or
(b).

(3) La Constitution du Canada ne peut
être modifiée que conformément aux
pouvoirs conférés par elle.

(3) Amendments to the Constitution of
Canada shall be made only in
accordance
with
the
authority
contained in the Constitution of
Canada.

PROJET DE LOI C-7 — BILL C-7
Loi concernant la sélection des
sénateurs et modifiant la Loi
constitutionnelle de 1867 relativement
à la limitation de la durée du mandat
des sénateurs
Attendu :
qu’il est important que les institutions
représentatives
du
Canada,
notamment le Sénat, continuent
d’évoluer de concert avec les
principes d’une démocratie moderne
et les attentes des Canadiens;
que le gouvernement du Canada s’est
engagé à explorer des façons de
permettre au Sénat de mieux refléter

An Act respecting the selection of
senators and amending the
Constitution Act, 1867 in respect of
Senate term limits

Whereas it is important that Canada’s
representative institutions, including
the Senate, continue to evolve in
accordance with the principles of
modern
democracy
and
the
expectations of Canadians;

Whereas the Government of Canada
has undertaken to explore means to
enable the Senate better to reflect the

500-09-022626-121

PAGE: 29

les
valeurs
démocratiques
canadiennes et de mieux répondre
aux besoins des régions du Canada;

democratic values of Canadians and
respond to the needs of Canada’s
regions;

qu’en 1987 les premiers ministres du
Canada ont convenu, à titre de
mesure provisoire jusqu’à ce que la
réforme du Sénat soit réalisée, que
les sièges vacants au Sénat soient
comblés au moyen d’une liste de
candidats sénatoriaux présentée par
le gouvernement de la province ou du
territoire visés;

Whereas in 1987 the First Ministers of
Canada agreed, as an interim
measure until Senate reform is
achieved, that any person summoned
to fill a vacancy in the Senate is to be
chosen from among persons whose
names have been submitted by the
government of the province or territory
to which the vacancy relates;

qu’il est indiqué que les personnes
dont la candidature est proposée au
Conseil privé de la Reine pour le
Canada en vue de leur nomination au
Sénat soient choisies par voie d’une
élection
démocratique
par
la
population de la province ou du
territoire qu’elles représenteront;

Whereas it is appropriate that those
whose names are submitted to the
Queen’s Privy Council for Canada for
summons
to
the
Senate
be
determined by democratic election by
the people of the province or territory
that a senator is to represent;

qu’il est indiqué d’établir un cadre
pour guider les provinces et les
territoires en ce qui touche la
législation régissant la tenue de ces
élections;

Whereas it is appropriate that a
framework be established to provide
guidance to provinces and territories
for the text of legislation governing
such elections;

que la durée du mandat des
sénateurs doit être conciliable avec
les principes d’une démocratie
moderne;

Whereas the tenure of senators
should be consistent with modern
democratic principles;

que le Parlement a édicté la Loi
constitutionnelle de 1965 pour réduire
la durée du mandat des sénateurs,
jusque-là nommés à vie, en fixant à
soixante-quinze ans l’âge limite de
leur maintien en fonction;

Whereas the Constitution Act, 1965,
enacted by Parliament, reduced the
tenure of senators from life to the
attainment of seventy-five years of
age;

qu’en vertu de l’article 44 de la Loi
constitutionnelle de 1982 le Parlement
a compétence pour modifier les

Whereas Parliament, by virtue of
section 44 of the Constitution Act,
1982, may make laws to amend the

500-09-022626-121

PAGE: 30

dispositions de la Constitution du
Canada relatives au Sénat;

Constitution of Canada in relation to
the Senate;

que le Parlement entend préserver les
caractéristiques
essentielles
du
Sénat, lieu de réflexion indépendante,
sereine et attentive au sein de la
démocratie
parlementaire
canadienne,

And whereas Parliament wishes to
maintain the essential characteristics
of the Senate within Canada’s
parliamentary democracy as a
chamber of independent, sober
second thought;

3. Dans le cas où une province ou un
territoire a édicté une loi qui est en
substance conforme au cadre prévu à
l’annexe, le premier ministre tient
compte, lors de la recommandation de
candidats sénatoriaux au gouverneur
général, des personnes dont le nom
figure sur la plus récente liste des
candidats sénatoriaux choisis pour
cette province ou ce territoire.

3. If a province or territory has
enacted legislation that is substantially
in accordance with the framework set
out in the schedule, the Prime
Minister, in recommending Senate
nominees to the Governor General,
must consider names from the most
current list of Senate nominees
selected for that province or territory.

5.
L’article
29
de
la
Loi
constitutionnelle
de
1867
est
remplacé par ce qui suit :
29. (1) Sous réserve des articles
29A à 31, le sénateur nommé après
l’entrée en vigueur de la Loi
constitutionnelle de 2011 (limitation
de la durée du mandat des
sénateurs) l’est pour un seul mandat
de neuf ans.

5. Section 29 of the Constitution Act,
1867 is replaced by the following:

(2) Sous réserve des articles 29A à
31, en cas d’interruption de son
mandat, le sénateur visé au
paragraphe (1) peut être nommé de
nouveau pour la période restant à
courir.

(2) Subject to sections 29A to 31, a
person referred to in subsection (1)
whose term is interrupted may be
summoned again to fill the
remainder of the term.

29A. Le sénateur, quelle que soit la
date à laquelle il a été nommé, perd
sa qualité de sénateur lorsqu’il
atteint l’âge de soixante-quinze ans.

29A. A person who is a senator on
attaining the age of seventy-five
years ceases to be a senator at that
time, regardless of when summoned
to the Senate.

29. (1) Subject to sections 29A to
31, a person who is summoned to
the Senate after the coming into
force of the Constitution Act, 2011
(Senate term limits) shall hold a
place in that House for one term of
nine years.

500-09-022626-121

PAGE: 31

Annexe — Schedule
CADRE DU PROCESSUS DE
SÉLECTION DES SÉNATEURS
1. Les sénateurs devant être nommés
pour une province ou un territoire
devraient être choisis à partir de la
liste des candidats sénatoriaux
présentée par le gouvernement de la
province ou du territoire.

FRAMEWORK FOR THE
SELECTION OF SENATORS
1. Senators to be appointed for a
province or territory should be chosen
from a list of Senate nominees
submitted by the government of the
province or territory.

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