On 13 November 2007, the Honourable Peter Van Loan, the then Leader of the Government in the House of Commons and Minister for Democratic Reform, introduced Bill C‑20, An Act to provide for consultations with electors on their preferences for appointments to the Senate (the “Senate Appointment Consultations Act”), in the House of Commons. Bill C-20 was previously introduced in the 1st Session of the 39th Parliament as Bill C-43. As of prorogation, Bill C-43 was awaiting second reading in the House of Commons.
As its title suggests, Bill C-20 establishes a mechanism for consulting electors in a province with respect to their preferences for the appointment of senators to represent the province.
Bill C-20 is one of the two legislative initiatives introduced by the Government during 39th Parliament with respect to the Senate. In the 1st Session, Bill S-4, An Act to Amend the Constitution Act, 1867 (Senate Tenure), was introduced in the Senate. On 19 June 2007, the Senate decided not to proceed with the third reading of Bill S-4 until the Supreme Court of Canada has ruled on its constitutionality. Bill S-4 was reintroduced in the 2nd Session as Bill C-19 in the House of Commons.
On his appearance before the Special Senate Committee on Senate Reform on 7 September 2006, Prime Minister Stephen Harper stated: “As yet another step in fulfilling our commitment to make the Senate more effective and more democratic, the government, hopefully this fall, will introduce a bill in the House to create a process to choose elected senators.”
The preamble of Bill C-20 refers expressly to the method of ascertaining the preferences of electors on appointments to the Senate as an undertaking pending the pursuit of a constitutional amendment under subsection 38(1) of the Constitution Act, 1982 to provide for a means of direct election of senators.
Bill C-20 sets out the procedure for “electing” Senate nominees, and, as such, constitutes a mini-Canada Elections Act. It includes, directly or by reference, several substantive provisions of the Canada Elections Act. In this respect, clause 2(2) provides that the words and expressions used in Bill C-20 “have the same meaning as in the Canada Elections Act unless a contrary intention appears.”
Members of the Senate are appointed (or “summoned”) by the Governor General pursuant to section 24 of the Constitution Act, 1867.(1) In accordance with a constitutional convention, the Governor General’s appointments to the Senate are made following a recommendation by the Prime Minister, which is his or her special prerogative.(2)
Section 23 of the Constitution Act, 1867 provides for the qualifications of senators. A prospective senator must be a subject of the Queen be, at least 30 years of age, and reside and possess at least $4,000 in real property in the province for which he or she is being appointed (except in Quebec, in which case a senator must reside or have his or her real property in the electoral division for which he or she is being appointed).
Since Confederation, the Senate and, more particularly, the method for selecting senators, have been the object of numerous reform proposals. As early as 1874, the House of Commons debated a motion by David Mills, MP, that “our Constitution ought to be reformed … to confer upon each Province the power of selecting its own Senators.”(3) At the outset of the first Interprovincial Conference in 1887, the premiers passed a resolution that half the members of the Senate be appointed by the federal government and that the other half be appointed by the provincial governments.(4)
After these early proposals, there was little interest in Senate reform until the end of the 1960s. In 1969, a federal government proposal at the Constitutional Conference echoed the 1887 resolution by suggesting that the Senate “could be partly selected by the federal government and partly selected by the provincial governments. Senators selected by the provinces could be nominated by the provincial governments, acting with or without the approval of their legislatures, depending on the provisions of each provincial constitution.”(5) In the spirit of this proposal, the 1972 report of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada recommended that senators continue to be nominated by the federal government but that half of them be appointed from a panel of nominees submitted by the provincial and territorial governments.(6)
In 1978, the Government of Canada’s proposal A Time for Action called for a renewed Constitution, to include a House of the Federation that “would replace the Senate. It would provide a role for the provinces in the selection of its members.”(7) Bill C-60 was tabled and received first reading in the House of Commons on 20 June 1978. It provided for half the senators of a province to be selected by the House of Commons following each general election and the other half to be selected by the legislative assembly of that province following each general election.(8) In 1979, however, the Supreme Court of Canada held that Parliament could not unilaterally alter the Senate if that would affect its fundamental features or essential characteristics, such as the method of selection of senators.(9) That same year, the Pépin-Robarts Task Force on Canadian Unity recommended the abolition of the Senate and the establishment of the Council of the Federation, to be composed of provincial delegations led by a person of ministerial rank or, on occasion, by the premier of a province.(10)
In 1982, the Constitution of Canada was patriated. It is now expressly provided by section 42(1)(b) of the Constitution Act, 1982 that an amendment to the method of selecting senators must be agreed on by the Senate, the House of Commons and at least two-thirds of the provinces that have at least 50% of the population of all provinces.
In 1984, the Special Joint Committee on Senate Reform recommended that senators be directly elected.(11) The Royal Commission on the Economic Union and Development Prospects for Canada recommended similarly in 1985 that senators be elected and that elections for the House of Commons and the Senate take place at the same time.(12)
In 1987, the first ministers reached an agreement on constitutional reform. Under the Meech Lake Accord, once a vacancy occurred in the Senate, the provincial government to which the vacancy related could submit a list of names of persons who could be summoned to the Senate. The Meech Lake Accord also provided that this procedure for appointment to the Senate was to apply pending approval by the provincial legislatures of the constitutional agreement.(13) Although not provided for in the agreement, on 16 October 1989, Alberta held an election under its recently enacted Senatorial Selection Act.(14) Reform Party candidate Stan Waters was elected. He was nominated to the Senate on 11 June 1990. On 23 June 1990, however, the Meech Lake Accord expired because it lacked the approval of Manitoba and Newfoundland.
The 1992 Charlottetown Accord provided that the Constitution be amended in order to provide that senators be elected by the population or by members of provincial or territorial legislatures. The Accord stipulated that each province would have six senators, with one senator for each territory. The Accord also provided for representation of Aboriginal peoples in the Senate, in addition to provincial and territorial representation. The Charlottetown Accord was defeated in a nation-wide referendum held on 26 October 1992.
On 19 October 1998, Albertans elected Bert Brown and Ted Morton as senators-in-waiting in an election conducted in conjunction with the Alberta municipal elections. On 22 November 2004, they elected Cliff Breitkreuz, Link Byfield and Betty Unger, and re-elected Bert Brown, as senators-in-waiting in conjunction with the provincial general election. Mr. Brown was appointed on 10 July 2007.
In 1990, British Columbia enacted the Senatorial Selection Act,(15) which mirrors its Alberta counterpart; no elections, however, were held under its authority. This Act contained a sunset clause and has since lapsed. In addition, various federal and provincial private Members’ bills have proposed advisory elections for appointments to the Senate, but none have been enacted.(16)
Part 1 of Bill C-20 sets out the powers and authorities involved in the administration of the new “consultation” process. The Chief Electoral Officer is to exercise general direction and supervision over the conduct of consultations, and he or she has the power to perform the duties necessary for the administration of the bill (clause 3).
Clause 4 gives the Chief Electoral Officer power to adapt the bill during emergencies and in unusual and unforeseen circumstances. (This measure is similar to section 17 of the Canada Elections Act.) The Chief Electoral Officer may also implement public education and information programs to make the consultation process better known to the public (clause 5, which is similar to section 18 of the Canada Elections Act).
The Chief Electoral Officer appoints consultation officers and staff necessary for the purposes of the bill (clause 6). Consultation officers play a role that seems similar to the role of returning officers under the Canada Elections Act. The bill provides few particulars in relation to the mandate of these consultation officers, nor does it deal with possible overlap or duplication between them and returning officers. They are to perform their functions in accordance with directions issued by the Chief Electoral Officer for the holding of a consultation (clause 6(3)). Clause 50(2) provides that the Chief Electoral Officer or a consultation officer can decide every question raised by an objection to a ballot.
Clause 9 provides that sections 540 (except subsection 540(2)), 543, and 546 to 549 of the Canada Elections Act apply to a consultation, with any necessary adaptations. These provisions deal with the following issues:
Clause 11 provides that the funds necessary for the application of the Act shall be paid out of the unappropriated moneys forming part of the Consolidated Revenue Fund.
Bill C-20 provides that the Governor General may order that the consultation of the electors of a province take place in conjunction with either a general election of members of the House of Commons or a general election of members of the provincial legislature (clauses 12(1) and 13(1)). The bill does not provide for the holding of a consultation in conjunction with a territorial general election, nor does it permit a consultation to take place at a time other than a federal or provincial general election.
An order that a consultation be held specifies, for each province, the number of places in the Senate in respect of which electors are to be consulted (clauses 12(2)(a) and 13(4)(a)), which could mean the order may specify that the number of places subject to the consultation is greater than or lesser than the number of existing vacancies.
Polling day for the consultation is either the same as the day for voting in the federal general election or on the day for voting in the provincial general election (clauses 2 “polling day,” 12(2)(c) and 13(4)(c)) unless, in any electoral district, the writ is withdrawn or the election is postponed under sections 59(17) or 77(18) of the Canada Elections Act. In these cases, the consultation in that electoral district is then postponed to the day of the postponed election (clause 14).
When the consultation is carried out in conjunction with a provincial general election, the Chief Electoral Officer may enter into an agreement with any person or body responsible for the conduct of elections in a province and has the power to adapt any provisions of the bill in order to facilitate this process (clause 13(2)).
If a consultation is to be conducted in conjunction with a provincial general election, a notice of the order must be published in the Canada Gazette at least six months before the order authorizing the consultation (clause 13(3)).
Once an order related to a consultation is made, the Chief Electoral Officer shall send to each returning officer in the province concerned a notice of consultation providing for information on nominations, the polling day and the consultation process. Such notices shall be distributed and posted in conformity with the Chief Electoral Officer’s directives (clause 15).
If, on the 23rd day before polling day, the number of nominees confirmed by the Chief Electoral Officer is less than or equal to the number of places in the Senate in respect of which electors are to be consulted, the consultation will not be held (clause 16). If the number of nominees in a province is greater than the number of places in the Senate in respect of which electors are to be consulted, the Chief Electoral Officer takes the necessary steps to conduct a consultation. Information relating to nominees is then sent to returning officers and shall be posted in their offices (clause 17).
Clause 18 of Bill C-20 provides that, with certain exceptions (outlined below), any citizen of Canada who is at least 30 years old may be a nominee in a consultation. The age requirement reflects one of the qualifications for senators prescribed in section 23 of the Constitution Act, 1867. However, while the Constitution prescribes that an individual has to be 30 years old or older on the date of his or her appointment, the bill seems to add the requirement that a nominee shall have attained the age of 30 by the date of the consultation. This requirement may exclude from the consultation process prospective nominees who will reach the age of 30 between the consultation and the date of the nomination and who otherwise fulfill all of the qualifications provided for by the Constitution. There also seems to be a difference between clause 18 of the Act, which prescribes that a nominee must be a Canadian citizen, and section 23 of the Constitution Act, 1867, which requires that senators be subjects of the Queen. The other qualifications prescribed in section 23 of the Constitution Act, 1867 are not set out in Bill C-20.
The Chief Electoral Officer, the Assistant Chief Electoral Officer, consultation officers, election officers and nominees in consultations being held in other provinces cannot be nominees in a consultation (clause 18). There seems to be no prohibition on an individual’s being a nominee for a place in the Senate and, at the same time, a candidate for election to the House of Commons or to a provincial legislature.
The nomination paper of a prospective nominee must include, among other things, the names, addresses and witnessed signatures of at least 100 electors resident in the province where the consultation is to be conducted (clause 19(1)(e)). A deposit of $1,000 must also be filed with the Chief Electoral Officer (clause 21(1)(b)).
A political party may endorse as many nominees in a consultation in a province as there are places in the Senate in respect of which electors are to be consulted (clause 20(1)). In this case, a written statement, signed by the party leader, that a nominee is endorsed by the party must be filed with the Chief Electoral Officer (clause 21(1)(d)).
Nomination papers must be filed with the Chief Electoral Officer before 2:00 p.m. on the 25th day before the polling day (“closing day”) (clauses 22 and 23).
Clauses 29 to 33 provide for the rights of the nominees. Nominees who are employed in federally regulated workplaces (those subject to Part III of the Canada Labour Code) have the right to a leave of absence to seek nomination and to be nominees during the consultation period (clause 29). (This measure is similar to section 80 of the Canada Elections Act.) Nominees have the right of access to apartment buildings, condominium buildings, other multiple residence buildings, gated communities and to public places (clause 30). (This measure is similar to section 81 of the Canada Elections Act.) Nominees also have the right to receive a copy of the lists of electors for the electoral districts in the province for which the electors are to be consulted (clause 31). The Chief Electoral Officer will create a compilation of the information concerning nominees (an “elector information guide”) and distribute it to the households in the province concerned (clause 33).
A prospective nominee must appoint an official agent and an auditor before the filing of his or her nomination paper (clauses 34 to 38).
Clauses 39 to 43 prescribe prohibitions relating to the following:
Those clauses reflect the substance, with the necessary adaptations, of the prohibitions contained in sections 89 to 92 of the Canada Elections Act.
Bill C-20 includes by reference the qualifications and entitlements for electors to vote that are provided for in the Canada Elections Act (clause 44). Qualified electors are Canadian citizens who are 18 years of age or older on polling day (Canada Elections Act, section 3). The following persons are not entitled to vote in a consultation: the Chief Electoral Officer, the Assistant Chief Electoral Officer, and every person who is imprisoned in a correctional institution and serving a sentence of two years or more (Canada Elections Act, section 4). This latter provision, however, was struck down by the Supreme Court of Canada in 2002 with respect to prisoners.(19)
Since the entitlement to vote differs in some cases between federal and provincial elections (e.g., regarding the minimum number of months specified for the residence requirement), an elector might have the right to vote only in the consultation and not in the general election when a consultation is being conducted in conjunction with a provincial general election.
The electors vote at the same polling station and at the same time as for the election of members of Parliament or members of a provincial legislature (clause 44).
Part 9 with respect to “Voting,” Part 10 with respect to “Advance Polling” and Part 11 with respect to “Special Voting Rules” of the Canada Elections Act apply to voting in a consultation, with any adaptations that may be required (clause 46). However, instead of marking the ballot in the circular space opposite the name of the nominee of his or her choice, the elector shall indicate his or her preferences – first choice, second choice, third choice, etc. – by entering 1, 2, 3, etc., in the circular space opposite the names of the nominees.
The Chief Electoral Officer is to publish in the Canada Gazette the form of the ballot to be used for voting in a consultation (clause 47(1)).
Part 5 of Bill C-20 sets out the rules for counting votes pursuant to the single transferable vote system. This system takes into account the first and subsequent preferences indicated by electors on their ballots.
Clauses 48 to 50 prescribe general provisions with regard to:
The Chief Electoral Officer establishes a list of selected nominees for each province in which a consultation is held (clause 51). There shall be as many successive counts of the votes as are necessary to equal the number of places for which the consultation is being conducted (clauses 51(2) and 55).
On the first count of the votes, only the first preferences expressed by voters are taken into consideration. Votes cast for a nominee who has withdrawn or for a person other than a nominee are void (clauses 26(2) and 28). If an elector indicates the same preference twice or if he or she omits to indicate one preference, that preference and any subsequent preferences on the ballot are not considered (clause 49(6)).
The name of a nominee shall appear on the list of selected nominees if on the first count of the votes and taking into account only the electors’ first preferences, the nominee has obtained a number of votes at least equal to the quota set in clause 52(2) (clause 53(1)(a)). This quota shall be determined by the following formula:
A / (B + 1) + 1:
A is the total number of first preference votes obtained by all nominees; and
B is the number of places in the Senate in respect of which electors have been consulted.
For example, if there are 1,000,000 valid ballots in a province for a consultation and four seats in the Senate to be filled, all nominees who obtained 200,001 first preference votes or more have their names on the list of selected nominees. If four nominees obtain more than 200,001 votes, their names will all appear on the list of selected nominees and there will be no second count of the votes.
On the second count, the votes obtained by selected nominees in excess of the quota are distributed to the next available preferences. A nominee is the next available preference of an elector if he or she comes next in that elector’s order of preference (clause 52(1)). Before the distribution of the votes, the number of next available preferences must be multiplied by the “transfer factor,” which is the number of votes of a selected nominee in excess of the quota divided by the total number of votes obtained by the selected nominee. For example, if the quota is 200,000 votes and nominee A gets 300,000 votes, the transfer factor will be one third (100,000 / 300,000). Hence, if nominee B was the next available preference for 150,000 voters who indicated nominee A as their first preference, nominee C was the next available preference for 100,000 voters who indicated nominee A as their first preference, and nominee D was the next available preference for 50,000 voters who indicated nominee A as their first preference: nominee B will get 50,000 votes; nominee C, 33,333; and nominee D 16,666 votes, in addition to the number of votes they already had on the first count.
Thus, on counts following the first one, all nominees who obtain the quota by adding to the electors’ first preferences the transferred votes are added to the list of selected nominees (clause 53(1)(b)). The remaining nominees are also added to the list of selected nominees if their number equals the number of places in the Senate for which a consultation has been conducted (clauses 51(2) and 55).
On any count, if no nominee obtains a number of votes at least equal to the quota, the nominee who obtains the least number of votes is eliminated (clause 54(1)). His or her votes are then distributed to the next available preferences (clause 54(2)). If more than one nominee gets the smallest number of votes, the nominee who obtained the fewest votes in the preceding count is eliminated (clause 54(4)). It the nominees obtained the same member of votes in the preceding count, the nominee who obtained the fewest number of votes in the nearest preceding count where there is no tie is eliminated. It there is a tie at all preceding counts, a nominee shall be eliminated on a random basis (clause 54(4)).
Clauses 53(4) and 56 deal with the order of distribution of votes in excess of the quota in cases where more than one nominee receives more than the quota.
The Chief Electoral Officer shall establish a system of electronic data entry and processing for the purposes of counting votes (clause 10(1)).
Clause 57 provides that the Chief Electoral Officer shall transmit the list of selected nominees to each of the nominees in the province. He or she shall also submit to the Prime Minister and publish in the Canada Gazette a report setting out, among other things, the results of the consultation (clause 58).
Part 6 of Bill C-20 deals with advertising and surveys. It incorporates within the consultation process the relevant provisions of Part 16 of the Canada Elections Act (sections 319 to 348). Clause 59 of the bill defines “advertising” and “survey” in the same way as those two words are defined in the Canada Elections Act but with the necessary adaptations.
Clauses 60 to 65 repeat the substance of sections 320 to 325 of the Canada Elections Act on advertising, relating in particular to:
Clause 66 of the bill provides that no electoral district association of a registered party shall incur advertising expenses that promote or oppose a nominee during a consultation period.
Clauses 67 to 69 of the bill restate the substance of sections 326 to 328 of the Canada Elections Act concerning opinion surveys, relating in particular to:
Clauses 70 and 71 replicate the substance of sections 330 and 331 of the Canada Elections Act, which prohibit broadcasting outside Canada with the intent to influence voters and prohibit interference by foreigners.
Part 7 of Bill C-20 deals with third party advertising in relation to consultations. This part of the bill introduces within the consultation process the relevant provisions of Part 17 of the Canada Elections Act (sections 349 to 362).
The definition of third party in Bill C-43 encompasses, however, more entities than it does in the Canada Elections Act. Indeed, an eligible party and a registered party can register as a third party under the bill (clause 72). As mentioned earlier, electoral district associations of registered parties may not incur advertising expenses during a consultation period (clause 66).
Clause 73 provides for spending limits on advertising expenses in respect of one or more nominees in a province. This spending limit is the greater of $5,000 or the amount obtained by multiplying $150,000 by the quotient obtained by dividing the total number of electors in the province by the total number of electors in Canada (section 73(1)). Each territory has a spending limit for advertising expenses of $3,000 (clause 73(2)).
Clause 74 repeats the substance of section 351 of the Canada Elections Act by prohibiting a third party from circumventing, or attempting to circumvent, a spending limit on advertising expenses by splitting itself into more parties or acting in collusion with another third party.
Clause 75 sets out the information that has to be included in a third party’s advertising message. The message must include the name of one or more nominees and the province in which they are nominees. The message must also identify the third party and indicate that it has authorized the message. This section is different from its counterpart in the Canada Elections Act (section 352), since clause 75 requires that one or more nominees be named in an advertising message, while there is no similar requirement in section 352 of the Canada Elections Act.
Clauses 76 to 85 repeats the substance of sections 353 to 362 of the Canada Elections Act governing third parties:
The provisions of Part 8 of Bill C-20 dealing with financial administration are similar to those contained in the Canada Elections Act, except that under Bill C-43 contributions are made exclusively to the nominee, while the Canada Elections Act stipulates rules for contributions to registered parties, registered associations, candidates, leadership contestants or nomination contestants:
Although individual contributions to a nominee may not exceed $1,000, Bill C-43 does not provide for a direct consultation expenses limit, possibly because of the level of the contribution limit and the costs with a province-wide campaign.
Part 9 of Bill C-20 deals with its enforcement. It mirrors in large part the enforcement provisions of the Canada Elections Act, concerning matters such as the following:
Clause 103 includes by reference the offences established by sections 489, 490 and 491 of the Canada Elections Act for contravention of Part 9, “Voting,” Part 10, “Advance Polling,” and Part 11, “Special Voting Rules,” of the Canada Elections Act (see clause 46).
Clause 108 contains, with the necessary adaptations, the substance of section 501 of the Canada Elections Act, which provides for additional penalties for a person who has been convicted of an offence. Clause 109 specifies that an offence under Part 9 of the bill does not include any punishment provided by sections 501 or 502 (illegal and corrupt practices) of the Canada Elections Act.
Clause 110 of the bill includes by reference sections 504 (case of judicial proceedings or a compliance agreement involving an eligible party, a registered party, a deregistered political party or an electoral district association), 505 (prosecution of third parties), 508 (evidence emanating from a returning officer) and 510 to 521 (Commissioner of Canada Elections) of the Canada Elections Act.
In case there is an order for consultation while the provisions of Bill C‑20 that provide for the single transferable vote system have not yet come into force, the bill provides for a provisional plurality-at-large voting system. Under this interim voting system, all nominees will campaign against each other for the number of places in the Senate in respect of which electors are to be consulted. The electors will vote for the nominee or nominees of their choice but without expressing preferences among the nominees. The nominees with the most votes will win the nomination. Electors will have a number of votes equal to the number of places in the Senate for which a consultation is being conducted, but they may vote for a nominee only once (clause 111).
Bill C-20 makes consequential amendments to the Canada Elections Act (clauses 113 to 121) in respect of restrictions and prohibitions relating to the use of the Register of Electors (clauses 113, 114 and 118) and in respect of restrictions respecting the appointment of official agents and auditors (clauses 115 to 117); the registration of a third party (clause 119), the appointment of third party financial agents and auditors (clauses 120 and 121), prohibited agreements for the payment of goods or services to a registered party that includes a term that a contribution be made to a nominee (clause 122); and a prohibition against paying a registered party’s expenses (clause 123).
The bill also makes consequential amendments to the Income Tax Act (clauses 125 to 126) in order to permit contributors to obtain tax credits for monetary contributions and to require authorized agents who receive monetary contributions under Bill C‑43 to keep a record of them.
A consequential amendment is made to the Director of Public Prosecutions Act to allow the offences under the Act to be prosecuted by the Director of Public Prosecutions (clause 124).
Bill C-20 comes into force six months after it receives Royal Assent, except for Part 2 and clauses 51 to 58, 112, 127 and 128 (clause 126(1)).
Part 2, which contains the provisions regarding the conduct of a consultation, comes into force one year after the bill receives Royal Assent, or on an earlier day (but at least six months after Royal Assent) on which the Chief Electoral Officer publishes a notice in the Canada Gazette to the effect that the necessary preparations have been made (clause 129(2)).
Clauses 51 to 58, which relate to the list of selected nominees and consultation reports, come into force two years after the bill receives Royal Assent, or on an earlier day (but at least six months after Royal Assent) on which the Chief Electoral Officer publishes a notice in the Canada Gazette to the effect that the necessary preparations have been made (clause 129(3)).
If Part 2 comes into force before clauses 51 to 58, the transitional provisions referred to above apply to a consultation (clause 111(1)).
At present, members of the Senate are appointed by the Governor General on the recommendation of the Prime Minister. Section 42(1)(a) of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada in respect of the method of selecting senators may be made only in accordance with the general procedure for amending the Constitution – that is, by a proclamation issued by the Governor General and authorized by resolutions of the Senate, the House of Commons, and the legislative assemblies of at least two-thirds of the provinces that have at least 50% of the population of all the provinces. The premise of Bill C-20 is that it does not, as such, amend the method of selecting senators and therefore does not require a constitutional amendment. Instead, it establishes a list of selected nominees that reflects electors’ preferences. As its preamble states, the bill creates a “method for ascertaining the preferences of electors in a province on appointments to the Senate within the existing process of summoning senators.” In future years, it may be that an informal practice of appointing senators from the list of selected nominees will transform itself into a constitutional convention that would “constrain” the prime minister in making his or her choice for Senate appointments.(20)
Professor Patrick Monahan believes that non-binding elections for the nomination of Senators would not formally need a constitutional amendment: “It should be noted that certain changes are possible in federal institutions without formal constitutional amendment, such as the appointment of senators on the basis of non-binding ‘elections.’”(21)
During the study of Bill S-4, An Act to Amend the Constitution Act, 1867 (Senate Tenure), by the Special Senate Committee on Senate Reform in the 1st Session of the 39th Parliament, a number of governments and constitutional experts expressed their concerns with regard to the constitutionality of Bill S-4 (reintroduced as Bill C-19) and Bill C-20 (then Bill C-43). They were concerned that the changes proposed would affect the fundamental features of the Senate and that such changes required, accordingly, a formal constitutional amendment. The Committee echoed these concerns and recommended not to proceed with the third reading of Bill S-4 until the Supreme Court of Canada ruled on its constitutionality.(22) The Senate concurred in the Committee’s report on 19 June 2007.
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