R v. ATTORNEY GENERAL OF CANADA, 2013 QCCA 1807

Projet de loi fédéral relatif au Sénat ( Re ) 2013 QCCA 1807 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022626-121 (Decree #346-2012) DATE: 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 * * This judgment has been signed in French and English. Both versions are official. [ 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: [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. 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 senators [3] .

The three regions of the new Dominion were thus equally represented in the Senate. [4] Moreover, 24 senatorial electoral divisions were created for 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] RELEVANT CASE LAW [ 15 ] In December of 1979, the Supreme Court emphasized in Re: Authority of Parliament in relation to the Upper House , 1979

169 (SCC), [1980] 1 S.C.R. 54, at p. 66 that: "The Senate has a vital role as an institution forming part of the federal systemcreated 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 thevarious 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 ofCommons.

Thus, the body which had been created as a means of protecting sectional and provincial interests was made a participant inthis 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 Senatein 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 wascreated. 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 thecomponent parts of Parliament. As already noted, the

preamble to the Act referred to “a constitution similar in principle to that of theUnited Kingdom”, where the Upper House is not elected. In creating the Senate in the manner provided in the Act, it is clear that theintention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House ofCommons. This was accomplished by providing for the appointment of members of the Senate with tenure for life. To make the Senate awholly 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 rethe Upper House that its essential characteristics, including the method of selecting its members, could not be amended without theprovinces' participation.

In so doing, it rejected the federal government's submissions that Parliament could act alone pursuant to itspower to amend the Constitution under subsection 91(1) of the Constitution Act, 1867 (a provision since repealed with the coming intoforce of the Constitution Act, 1982 and replaced by

section 44 of the latter). [18] Finally, in Reference re the Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, the Supreme Court recalled thatour Constitution is based on several principles, one of which is federalism as a system of the country's government, including theamendment 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 anon-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 ofsenators, 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 themethod 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 populationin the aggregate is equal to 50% of the ten Canadian provinces (the general amending procedure of 7/50).[8] Subsidiarily, he contendsthat the change in the method of selection of senators would have affected the office of the Governor General, which therefore requiresthe consent of Parliament and all of the provinces pursuant to

section 41 of the Constitution Act, 1982. Last, he asserts that the proposedreduction 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. [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 theobligatory participation of the provinces in the proposed amendments. Senator Joyal insists on the constitutional provision relating to theoffice of the Governor General and the need for unanimity to either transform or abolish the Senate. With respect to Francophonesoutside Quebec and Acadians, they contend that one of the current Senate's essential characteristics is the representation of the country'slinguistic minorities, which, from their perspective, can only be amended pursuant to

section 38 of the Constitution Act, 1982 (the 7/50general 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 thevarious procedures applicable to any amendment of the Constitution (Re: Objection by Quebec to a Resolution to amend theConstitution, (SCC), [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), (QC CA), [2001] R.J.Q. 2823 (C.A.), leave to appeal to the Supreme Court ofCanada 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 federalgovernment 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 particularimportance (for example the use of French or English, the office of the Queen, the Governor-General or the Lieutenant Governor of aprovince).[9] [14] The third is the simplified general procedure specified for 6 matters enumerated therein (section 42). [15] The fourth is the unilateral procedure (sections 44 and 45) that permits Parliament alone to amend the constitution relating tofederal executive power, the Senate and the House of Commons as well as providing the same powers to the provinces with respect totheir 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 inthe aggregate at least fifty per cent of the population of all the provinces is required with respect to amendments relating to the followingfour 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 respectto the Senate as follows:

Sous réserve des articles 41 et 42, leParlement a compétence exclusive pour modifierles dispositions de la Constitution du Canadarelatives au pouvoir exécutif fédéral, au Sénat ouà la Chambre des communes. 44. Subject to sections 41 and 42, Parliamentmay exclusively make laws amending theConstitution of Canada in relation to theexecutive government of Canada or the Senateand 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 amendmentsto 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 whoseagreement is required for all amendments to the Constitution, save for those contemplated by

section 45. It follows that the abolition ofthe Senate would amend the Constitution's amending procedure, which would thus require the consent of Parliament and all the country'sprovincial legislatures (section 41). [30] Determining whether a constitutional amendment relating to the Senate is subject to

section 42 or

section 44 is achieved bytaking 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., (SCC), [1985] 1 S.C.R. 295, at p. 344). [31] In interpreting these provisions, the underlying principles of the Constitution "assist in the

interpretation of the text" (Referencere the Secession of Quebec, (SCC), [1998 2 S.C.R. 217, para. 52), even if they should only be used with prudence inorder 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 theSenate in the pre-confederation compromise. This

interpretation should also reflect the historical reality surrounding the adoption ofsection 42 in 1982, the numerous unsuccessful attempts up to then to abolish, modify or replace the upper house, as well as the Referencere the Upper House. [33] A teleological interpretative approach must be adopted. Thus, it would be wrong to say that

section 44 contains the rule ofgeneral application while

section 42 enumerates exceptions to Parliament's power to act unilaterally. The latter provision should not beinterpreted 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 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] [ 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?

[ 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 Canada portant sur les questions suivantes se fait conformément au paragraphe 38(1) : […];

b) les pouvoirs du Sénat et le mode de sélection des sénateurs; 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) : […]; (

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: [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. [ 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. [ 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 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 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. [ 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 C-7 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. [ 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 seventy-five 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. 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. 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

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 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 : 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, 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,

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, 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. […] 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 votes of more than one-third of the members of such House. … [paragraphe abrogé en 1982] [subsection repealed in 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 : 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. 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 lieutenant-gouverneur ; […] 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 . … [paragraphe abrogé en 1982] [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.

(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 :

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

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;

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

d) la composition de la Cour suprême du Canada;

e) la modification de la présente partie. 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) the office of the Queen, the Governor General and the Lieutenant Governor of a province; (

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) subject to

section 43, the use of the English or the French language; (

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

e) an amendment to this Part.

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

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

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

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

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

e) le rattachement aux provinces existantes de tout ou

partie des territoires;

f) par dérogation à toute autre loi ou usage, la création de provinces. 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) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada; (

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

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

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

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

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 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. 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 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.

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.

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 incompatibles de toute autre règle de droit. 52.

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) La Constitution du Canada comprend :

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

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

c) les modifications des textes législatifs et des décrets mentionnés aux alinéas

a) ou b ).

(2) The Constitution of Canada includes (

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

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

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

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

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; 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 dispositions de la Constitution du Canada relatives au Sénat; Whereas Parliament, by virtue of

section 44 of the Constitution Act, 1982 , may make laws to amend the 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 :

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

(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.

Annexe —

Schedule CADRE DU PROCESSUS DE SÉLECTION DES SÉNATEURS FRAMEWORK FOR THE SELECTION OF SENATORS 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. 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.