nova scotia - supreme court reference on senate reform

7/22/2019 Nova Scotia - Supreme Court reference on Senate reform

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Court File No. 35203IN THE SUPREME COURT OF CANADA

IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C. 1985 , c. S-26;AND IN THE MATTER OF a Reference by the Governor in Council concerningreform of the Senate, as set out in Order in Council PC. 2013-70, dated February 1,2013

DANS LA COUR SUPREME DU CANADADANS L AFFAIRE DE Particle 53 de la Loi surfa Jour supreme, L.R .C. 1985, ch .S-26;FT DANS L AFFAIRE DUN renvoi par Ic Gouverneur en conseil concernant Iarforme du Snat tel que formul dans Ic dcret c.P. 2013-70 en date dii 1 er fvrier2013

FACTUMATTORNEY GENERAL OF NOVA SCOTIA(Pursuan t to Rule 46 of the Rules of/he Supreme Court o/anadai Rgle 46 des Reglesde la Cour supreme du Canada)

Office of the Attorney General of Nova Scotia4h Floor - 5151 Terminal Road , FloorP.O. Box 7Halifax , N.S. B3J 2L6Tel: (902) 424-3297Fax: (902) 424-1730Email: goreseaiiov.ns.ca

Gowling Lefleur Henderson LLPBarristers and Solicitors160 Elgin Street , 26 th FloorOttawa, ON K I p i C3Tel: (613) 786-0139Fax: (613) 563-9869Email: henry.browngowlings.com

Edward A. Gores, Q. C.Counsel for the The Attorney General of Nova ScotiaHenry S. BrownOttawa Agents for the AttorneyGeneral ofNova Scotia


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DEPARTMENT OF JusTicE CANADA234 Wellington Street, Room 1161Ottawa, ON KIA 0H8Telephone: (613) 957 -4763Facs imile: (613 ) 954 -1920Email: [email protected] J. FraterChristopher M. RuparWarren J. NewmanCounsel for the Attorney General of CanadaHUNTER LITIGATIoN CHAMBERS LAwCORPORATION1040 Georgia Street West. Su ite 2100Vancouver, BC V6E 4H 1Telephone: (604 ) 891-2401Fac sim ile: (604 ) 647-4554Email: [email protected] J. L. Hunter, Q.C.Ainicus Curiae

PROFESSOR DANIEL JuTRA5University ol McG ill3644 Peel StreetMontreal, QC H3A 1W9Telephone: (514) 398-6604Facsimile : (514) 398-4659Email: [email protected] Curiae

ATTORNEY GENERAL OF ALBERTAConstitutional Law Branch9833 - 109 Stree t, 4th FloorEdmonton. AB, T5J 3S8Telephone: (780) 427-0072Facsimile: (780 ) 425-0307Email: [email protected]. Margaret Unsworth, Q.C.Counse l for the Attorney General ofAlberta

SUPREME ADVOCACY LLPBarristers and Solicitors397 Gladstone Avenue, SuitelOttawa, ON K2P 0Y9Telephone: (613) 695-8855Facsimile: (613) 695-8580Email: m fmaj [email protected] MajorCounsel for the Ainicus CuriaeJohn J.L . Hunter, Q.CSUPREME ADVOCACY LLPBarristers and Solicitors397 Gladstone Avenue, SuitciOttawa, ON K2P 0Y 9Telephone: (613) 695-8855Facsimile: (613 ) 695-8580Email: mfmaj orsupremeadvocacy.caMarie-France MajorCounsel for the Amicus CuriaeProfessor Daniel JutrasGowuiNc LAFLEuR HENDERSON LLPBarristers and Solicitors160 Elgin Street, 26th FloorOttawa, ON K1P 1C3Telephone: (613) 786-0139Facsimile : (613) 563 -9869Email: henry.browngow1ings.comHenry S Brown, Q.C.Ottawa Agents for the Counsel for theAttorney General of Alberta


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ATTORNEY GENERAL OF NEW BRuNsWIcKLegal Services BranchCentenn ial Building, Room 447P.O. Box 6000Fredericton, NB E3B 5H1Telephone: (506) 453-2222Facsim ile: (506) 453-3275Email: david.eidt,gnb.cadenis.theriaultgnb.caDavid E. EidtDenis G. ThriaultCounsel fo r the Attorney General ofNewBrun swickATToRNEY GENERAL OF SAsIATdHEwANConstitutional Law Branch1874 Scarth Street, Suite 820Regina, SK S4P 4B3Telephone: (306) 787-8385Facsim ile: (306) 787 -9111Email: graeme.mitchellgov.sk.caMr. Graeme G. Mitchell Q.C.Counsel for the Attorney General ofSaskatchewan

ATToRNEY GENERAL OF PRINcE EDWARDISLANDSTEwART rvIcKELvEYBarristers and Solicitors65 Grafton StreetP0 Box 2140, Central StationCha rlot tetown, PE CiA 8B9Telephone: 902-629-4549Facsimile: 902-566 -5283Email: scampbellstewartrnckelvey.comD. Spencer Campbell, Q.C.Counsel for the Attorney General of Prince

G0WLING LAFLEIJR HENDERSON LLPBarristers and Solicitors160 Elgin Street , 26th FloorOttaw a. ON K1P 1C3Telephone: (613) 786-0139Facsimile: (613) 563-9869Email: henry.browngowlings.comHenry S. Brown, Q.C.Ottawa Agents for the Counsel for theAttorney General ofNew Brunswick

G0wLING LAFLEuR HENDERSON LLPBarristers and Solicitors160 Elgin Street, 26ti FloorOttawa, ON KIP 1C3Telephone: (613 ) 786-0139Facsim ile: (613) 563-9869Email: [email protected] S. Brown, Q.C.Ottawa Agents for the Counsel for theAttorney General of Saskatchewan

G0wLING LAFLEuR HENDERSON LLPBarristers and Solicitors160 Elgin Street ,2i FloorOttawa, ON KIP 1C3Telephone: (613 ) 786-0139Facsimile : (613) 563-9869Email: [email protected] S. Brown, Q.C .Ottawa Agents fo r the Counsel for theAttorney General of Prince Edward Is land

Edward Island


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ATTORNEY GENERAL OF THE NORTHWESTTERRITORIESP0 Box 1320, Station MainYellowknife, NT X1A 2L9Telephone: (867) 920-3248Facsimile: (867 ) 873-0234Email: bradpatzergov.nt.caMr. Bradley E. PatzerCounsel for the Attorney Gene ral of theNorthwest Territories

ATTORNEY GENEIL OF NuNAvuTLegal & Constitutiona l Law DivisionP0 Box 1000, Station 500Iqa luit, NS XOA OHOTelephone: (867) 975-6332Facsimile : (867 ) 975-6349Email: [email protected]. Norman M. TarnowCounsel for the Attorney General ofNunavut

BERNARD, ROY &ASS0cIE5Barristers and Counsels1 Notre-Dame Street Eas t, Sui te 800Montral. QC H2Y 1B6Telephon e: (514 ) 393-2336 Ext: 51467Facsim ile : (514) 873 -7074Email: [email protected] BernardManse VisocchiCounsels for the Attorney Genera l of QubecATTORNEY GENERAL OF BRITISH CoLuMBIA1001 Doug las StreetP.O. Box 9280 Stn Prov GovtVictoria , BC V8W 9J7Telephone: (250) 356-5597Facsim ile: (250) 356-9154Email: nancy.ag.browngov.bc.caNancy E. BrownCounsel for the Attorney General of Brit ish

G0WuNG LAFLEUR HENDERSON LLPBarristers and Solicitors160 Elgin Street, Suite 2600Ottawa. ON KIP 1C3Telephone: (613) 233-1781Facsimile : (613) 563-9869Email: hrian.cranegowlings.cornBrian A. Crane, Q.C.Ottawa Agents for the Counsel for theAttorney General of the Northw est Territories

G0wLING LAFLEuR HENDERSON LLPBarristers and Solicitors160 Elgin Street , Suite 2600Ottawa, ON KIP 1C3Telephone : (613) 233-1781Facsimile: (613) 563-9869Email: brian.cranegowlings.comBrian A. Crane, Q.C.Ottawa Agents for the Counsel for theAttorney General of NunavutNOEL &ASS0cIESBarristers and Counselsill Champlain StreetGatineau. QC J8X 3R1Telephon e: (819) 771-7393Facs imile: (819) 771-5397Email: [email protected] LandryAgen ts for the Counsel for the AttorneyGene ral ofQuebecBURKE-ROBERTSONBarristers and Solicitors441 Maclaren Street , Suite 200Ottawa, ON K2P 2H3Telephone: (613) 236 -9665Facsim ile: (613) 235-4430Email: [email protected] E. Houston, Q.C.Ottawa Agents for the Counsel for theAttorney Gene ral of British ColumbiaColumbia


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ATTORNEY GENERAL OF ONTARIO720 Bay Street, 7th FloorToronto, ON M5G 2K1Telephone : (416) 326-4454Facsimile: (416) 326-4015Email: [email protected] V. HlieJoshua HunterCounsel for the Attorney Genera l of Ontar io

ATTORNEY GENERAL OF NEwFOUNDLAN PAND LABRADOR4th Floor, East BlockConfederation Bldg.St. Johns, NL AIB 4J6Telephone : (709) 729 -2869Facsim ile : (709) 729 -2129Barbara BarrowmanCounsel for the Attorney General ofNew foundland and Labrado r

THE H0N0uRABLE SERGE JOY AL,SENATOR, PC250 East BlockParliament of CanadaOttawa, ON K1A 0A4Te lephone: (613) 943-0434Facsim ile : (613) 943-0441Email: joyalssen.park.gc.caIntervener

HEENAN BLAIKIE LLPBarristers and Coun sels55 Metcalfe Street, Suite 300Ottawa, ON K1P 6L5Telephone: (613) 236-7908Facsimile: (866) 296-8395Email: mpowerheenan.caMark C. PowerJennifer KlinckPerri RayonSbastien Grammond, Ad.E.

BuRKE-ROBERTSONBarristers and Solicitors441 Maciaren Street, Suite 200Ottawa. ON K2P 2H3Telephone: (613) 236-9665Facsimile: (613) 235-4430Email: [email protected] E. Houston, Q.C.Ottawa Agents for the Counsel for theAttorney General of Ontario

BuRKE-ROBERTSONBarristers and Solicitors441 Maclaren Street, Suite 200Ottawa, ON K2P 2H3Telephone: (613) 236-9665Facsim ile: (613) 235-4430Email: [email protected] E. Houston, Q.C.Ottawa Agents for the Counsel for theAttorney Gene ral of Newfoundland andLab rador


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Counsels for the IntervenerFd ration des communauts francophones etacadienne du Canada

Cox &PALMERBarristers and Counsels644 Main Street, Suite 500Moncton,NBEIC 1E2Telephone: (506) 856-9800Facsim ile : (506) 856-8150Email: [email protected] F. MichaudSerge RousselleCounsels for the In tervene rSocit de lAcadie du Nouveau-Brunswickinc.

HEENAN BLAIKIE LLPBarristers and Counsels55 Metcalfe Stree t, Suite 300Ottawa. ON KIP 6L5Telephone: (613) 236 -8071Facs imile: (613) 236-9632Email: [email protected] RayonOttawa Agents for the Counsels for theIntervenerSocit de lAcadie du Nouveau -Brunswickinc.

STIKEMAN ELLIOTT LLPBarristers and Solicitors50 OConno r Stree t, Suite 1600Ottaw a, ON K1P 6L2Telephone: (613) 566-0546Facsim ile : (613) 230-8877Email: [email protected] MdllaffieCounsel for the IntervenerThe Honourable Anne C. Coo ls, Senator, P.C.


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Table of Contents

PART I-FACTS .1A. Overview 1B. The Senate at Confederation 2C. The Sena te after Confederation 7

PART 11- QUESTIONS IN ISSUE 8PART III - ARGUMENT 9

A. Introduction 9B. The Reference Questions 10

1) Senate Term Limits cannot be Effected Under Section 44 102) Senate Appointment Consultations by election are no t within Section 44 143) Parliament may remove Property Qualifications 184) Abolition of the Senate requires unanimous consent 19

C. Summary 20PART IV - ORDER SOUGHT CONCERNING COSTS 22PART V - ORDER SOUGHT 23PART VI- TABLE OF AUTHORITIES 24

PART VII- LEGISLATION25


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PART IFACTS

A. OverviewThis reference conce rns Senate reform and the key role tha t the provinces have indiscussions aimed at fundamental changes to our Constitu tion . The design and functionof the Senate has been an important cons titu tional conce rn for Nova Scotia since theCanadian federa tion was first propo sed . The princip les and na ture of Canad ian federalismhave been at the heart of Senate refo rm discussions and deba te be tween the federal,prov inc ial and territorial gov ernments for many decades . Our Constitution requ ires ameaningfu l dia logue between governm ents when a change to the character and functionof the Senate is proposed. Any refo rm of the manner by which Senators are se lec ted tooffice, whether tho se off ices can be made sub ject to term lim its and how the Senate mightbe abo lished first requires a dia logue with Nova Sco tia and cannot be accompl ishedun ilatera lly by the Parliament of Canada.

2. The reference que stions cover both historical and curren t provinc ial concerns. Thehistor ical concerns include the purpose of the Senate as orig inally established and NovaSco tias view of it at the time. Of particu lar concern now is how the amending formulaset ou t in Part V of the Constitution Act, 1982 opera tes and how the federal governmentviews its obligations to its prov inc ial and territor ial partners in cons titu tional reform,bo th in respec t of the Sena te and in respec t of con sti tutional mat ters generally. Outsideof minor or other housekeeping matters involv ing federal institutions, dialogue betweenthe federal and provincial governments is required and provincial consent ought to beob tained in advance of an attem pt to enact constitutional reform . This position bothcontinues and advances Canadian fede ralism principles and und ers tand ing in ourmodem democracy .

3. This reference by Canada poses six ques tions concerning the am ending procedu res inPart V of the Constitution Act, 1982 . Part V sets ou t a formal amending process for theCanadian Constitut ion, something which did not ex ist until 1982. A review of Part V, ofthe history which led to its adop tion, and of federa l-provincia l prac tice since 1982 reveals


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that radical constitutional reforms, such as are proposed by the reference questions, mustbe secured through the consent of the provinces.

4. The reference questions require a determination of whether provincial consent is requiredin the event Parliament wishes to enact reforms such as limiting the term of office ofSenators, to change the method of selecting Senators for appointment to office, or toabolish the Sena te . Both Part V of the Constitution Act, 1982 and the principles offederal ism require tha t provincia l consent be obtained before any these reforms can beenacted.

B. The Senate at Confederation5. The design of the Senate was first proposed in the 1 864 Quebec Resolutions: AGNS

Record, Tab 1. As with the post-1867 Confederation period, the pre-Confederation periodwas much filled with debate over the design of the Senate. A review of that history isinstructive to the context and understanding of the present reference questions andconstitutional reform initiatives.

6. Like others in the Maritime Provinces, Nova Scotias anti-Confederates of the day wereskeptical of the sena te design offered in 1864, the document that was ultimatelytransformed into the British North America Act 1867 and which is now, withamendments, the Constitution Act, 1867. The anti-Confederates were troubled by theSenate des ign even though it was constituted on the basis of regional equali ty : eachdivisionlregion Ontario, Quebec, and the Maritime Provinces (consisting of NovaScotia, New Brunswick and Prince Edward Island) were to be assigned 24 members[AGNS Record, Tab 1 ibid., Resolutions 7 and 8, p.1-2]. Anti-Confederates weretroubled because of the Senator selec tion process , which they considered boded ill forNova Scotia and the region.

7. Led by the redoubtable Joseph Howe, the anti-Confederates assailed the idea of senatorsappointed by the Governor General, meaning the government of the day, and ultimatelythe Prime Minister. The issue was no t the appointment process per se. It was that theappointment would be made by a government dependent upon central Canada (then


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Lower and U pper Canada) for its majority in the House of Commons . Such agove rnment , they argued, could not be expected to app oin t Senators from the Maritimereg ion who were known publicly to be strong advocates of th ei r respec tive provinces inpa rticular, or the M ar itim es in general. [Howe, Joseph. 1865. The Botheration Scheme -No. 1. Halifax Morn ing Chron icle. 11 January. Library and Archives Canada AGNSRecord, Tab 3; and , Howe, Joseph. 1909 The Speeches and Public Letters of JosephHowe, ed. Joseph Andrew Chishoim, vol 2, 468-492 . H al ifax C hro nic le Pub lishingCompany Lim ited AGNS Record, Tab 5 ,] Howe argued that the many quarrels andinsu rre ctio ns w ithin and between Upper and Lower C anad a could only lead one toconclude that central C ana da could not be trusted ei ther to deal with the Maritime regionfairly or to appoint pe rsons to the Senate who w oul d pr ote ct Nova Scot ia fro

m theschemes of Upper and Lower Canada: ibid.

8. In making his argu m ent, it is clear the anti-C onfe der ate s supposed that regional loyaltywould be the prime motivator of po litical ac tors in the new country, and that it wou ldtrum p poten tia lly com pet ing loyalties like loyalty to a po litical party. This might seemodd to C anad ia ns today , who are accustomed to gov ern m en ts tha t are organized on thebasis of dis ciplin ed politica l parties. Howeve r, in 1864, there were no national politicalparties, on ly the loosely organized po litical par ties of the British North Americancolonies. Hence , it is easy to see why the an ti-C onfed era te ana lysis of the Senate wasbased on the assu m ption tha t sena tors wou ld act on a reg iona l bias. They simply feared itwould be the wrong one.

9. Howes attack on the Senate was deepened by his ap pre ci atio n of two oth er problems tha tthe M ar itim e prov inces faced unde r the proposed co nstitut ion: the first being theirstanding in the House of Commons, the other be ing the strategic difficul tie s that wouldresu lt from a federation with so few members. With re gar d to the House of Commons,the problem was the numbers. The proposal was for a body of 194 seats distributed on thepr inc iple of representation by popu lation. The M aritim e prov inc es were to be assigned 47seats. This m eant tha t they would be out num bered 147 to 47 in the Hou se that reallycoun ted und er the system of re sp ons ible go ve rnm ent because the gove rn m en t of the day


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was responsible to it. The concern about this situation at the time cannot be overstated it kept Prince Edward Island (PET) ou t of the federation until 1873.

10. Howe pointed out that the proposed federation would contain only three regions and fiveprovinces initially four provinces when PEI stepped aside. The upshot. he said, was thatthe center of power and influence in the country would always remain in central Canadabecause there were no countervailing forces to offset it. The Maritime provinces had nostrategy available to them other than to ally with Ontario against Quebec or with Quebecagainst Ontario. This was not a recipe for success since the two central provinces couldbe expected instead to combine against the other provinces whenever their interestsdictated such action and the lower provinces would have no other provinces to lean on forprotection. He drew the contrast between this state of affairs and that of the United StatesHouse of Representatives, in which many states large and small were represented. There,he said , the small states were protected by the competition among the larger states, noneof which could dominate the rest.

11. Howe also recognized that the Maritime provinces were not themselves united. HadMaritime union succeeded prior to Confederation, they might have had a stronger hand toplay, but, disunited, it is plain that they must be prey to the spoiler; and having but forty-seven representatives, all told, it is apparent that the Government of the confederacy willalways rest upon the overwhelming majority of 147: Howe, 1909, p. 490 AGNSRecord, Tab 5.

12. The anti-Confederates recommended election from the provinces to the Senate instead ofappointment by the Governor General. In his Botheration Letters, Howe lookedfavourably on the American Senate, the members of which at that time were elected bythe state legislatures in 1913 the constitution was amended to provide for the directelection of senators, the system that prevails there now: Howe, 1865, p. 1-2 AGNSRecord, Tab 3.

13. Maritime anti-Confederates were not the only critics of the Senate . One of the bestknown in Canada was Christopher Dunkin, the elected representative of Brome in


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Canada East in the assembly of the Parliament of Canada. In his speech to the assemblyin the debate over the proposed constitution. Dunkin attacked it for not being a realfederation, using the Senate as evidence. If it was supposed to be a federal body thatrepresented the provinces, he said , then it was a complete failure because the provinceshad no role in appointing its members. But if the Senate was not designed to represent theprovinces in the central government, he continued, who would represent them there? Hisanswer was the cabinet. According to Dunkin, the cabinet would wind up being theinstitution that advanced the interests of the provinces (Dunkin, Christopher. 1865.Province of Canada. Parliamentary Debates on the Subject of the Confederation ofBritish North American Provinces. 493-497. Quebec: Hunter, Rose & Co., ParliamentaryPrinters. AGNS Record, Tab 2).

14. In th e end, an appointed Senate won the day, and many decades were to pass before theidea of an elected body gained any traction in the Maritime provinces. Under theproposed Charlottetown Accord (AGC Record, Vol VIII, Tab 29). which contained a setof far-reaching amendments to the Constitution, the Maritime governments andlegislatures signed on to an elected Senate, although the details of the process remainedunclear, and in any event the Accord was voted down in a referendum in 1992.

1 5. The pro-Confederationists, or unionists, in the Maritimes supported the Senate as aproperly constituted parliamentary upper house modeled as closely as possible on thepremier parliamentary system in the world that of Great Britain. They also argued thatequal representation in the Senate was a very favourable allocation of seats, putting theMaritime region on a par with Ontario and Quebec. They expected that the regionsinterests would be well protected there. As noted by the Attorney General of Canada inhis Factum (paras. 47-5 1), John A. Macdonald identified the purpose of the Senate asproposed and how or if it might be expected to assist the provinces.

16. In his defence of the Senate to the Canadian Parliament, Macdonald had to deal explicitlywith the issue of appointment over election. It must be recalled that in 1 864 two of thecolonies, Canada and PEI, were experimenting with elected upper chambers. Why, then,the reversion to appointment? One reason was the position of the Maritime delegates to


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the Quebec conference at which the proposed constitution was drafted. According toMacdonald. with the exception of PET, the Maritime delegates showed a generaldisinclination to the elective principle, favouring instead nomination by the Crown: W eresolved then, that the constitution of the Upper House should be in accordance with theBritish system as nearly as circumstances would allow: MacDonald, J.A.. 1865.Province of Canada. Parliamentary Debates on the Subject of the Con fderation ofBritish North American Provinces. 25-36. Quebec: Hunter, Rose & Co., ParliamentaryPrinters; AGNS Record, Tab 4, p. 25-36. Thus, according to Macdonald, the Maritimedelegates were mostly staunch devotees of the British parliamentary system.

17. The Maritimers general disinclination was hardly sufficient reason to defend the shiftto appointment, bu t it set the stage br Macdonalds central thesis that the Senate wasintended to function more or less like the House of Lords, that is, as a parliamentaryupper house of sober second thought. Of course, it could no t be like the Lords since, asMacdonald explained, there was no comparable social order to generate such a body that.at that time, was composed largely of hereditary peers, plus bishops and law lords.Nevertheless, the Senate would be an institution of some gravitas, since its memberswere to be appointed fo r life and had to own real property of a not-insignificant amountas a condition of membership.

18. Since the function of the Senate was sober second thought, then it was essential that itsmembers have the independence to undertake the task. Macdonald stated thatappointment for life would guarantee such independence. Once appointed, a senator wasbeyond the reach of the government of the day. Further, the Senates membership waslimited to 24 senators per region, and the government cou ld not meet opposition in theSenate by appointing enough additional senators to beat it back ( th is feature changed atthe London conference in December, 1866, where the Quebec Resolutions weretransformed into the British North America Act, 1867; under ss. 26-28, provision is madefor the appointment of additional senators: AGC Authorities, Tab 33). Critics argued thatthis was a recipe for deadlock, particularly since the Senate in legal terms was almostequal in power to the House of Commons. Macdonald responded that appointment would


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keep senators from contempla ting such des tructive tactics . An elected Senate, he said.was far more like ly to produce deadlock than an appointed one. Carefully, he buttressedhis po int by reference to the experiment in pre-Confederation Canada with an electedSenate, implying that the elected senators were proving troublesome for the governmen tof the day often a government that he led: MacDona ld. J.A., 1865. supra, AGNSReco rd, Tab 4, p. 36.

19. It is app arent from Macdona lds lengthy presentation of the proposed Senate in thedebate in the Canadian Parliament that he did not discuss it from a federal standpoint.Once he got past mention of the novel idea of equal regional (formerly referred to assectiona l) representation based on the p rinciple of equ ality of each region , he movedimmedia tely to its legislative bonafides as an upper house in the na tional pa rliament of anew nation . It was to be a na tional institution and it was to carry out the function of sobersecond though t in a measured way. This characterization of the purpose and role of theSenate remains an essential fea ture of the Constitu tion today.

C. The Senate after Confederation20. The Attorney General of Canada, by his Facturn and Record, reviews in some detai l the

history of cons titutional reform since Confede ration. The Attorney General of NovaScotia will not add to the Record in this regard. It is worth noting , however , that in thetim e after Part V of the Constitution Act, 1982 was put in place to deal with amendmentsto the Con stitution, the federal and provincial governmen ts met tw ice to discuss issuesconcerning Senate reform , resu lting in the 1987 Constitutional Accord (the Meech LakeAccord) and, subsequent ly, the 1992 Charlottetown Constitutional Accord. AGC Factum,paras 3 9-40.


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PART IIQUESTIONS IN ISSUE

21. The reference questions to be answered by this Court are attached as Appendix A to theFactum of the Attorney General of Canada. A summary of the questions and the answersof the Attorney General ofNova Scotia are as follows:

1. Can the Parliament of Canada, exercising its legislative authority under s. 44of the Constitution Act, 1982. amend the Constitution Act, 1867 to set termlimits for Senators , including making any such terms renewable and/or theterm limits retrospective?

No. Term limits affect the independence of the Senate and cannot beunilaterally imposed by Parliament.

2. Can the Parliament of Canada, exercising its legislative authority under s. 91of the Constitution Act, 1867 or under s. 44 of the Constitution Act, 1982provide for a consu ltative procedure in the form set out in Bill C-20 (2007) orBill C-7 (2011) to determine public preferences for potential nominees forappointment to the Senate?

No. Undertaking consultation by non-binding election s impacts thefunctioning of the Senate and does not fall within Parliaments unilateralauthority.

3. Is it within the legislative authority of the Parliament of Canada, actingpursuant to s. 44 of the Constitution Act, 1982, to repeal subsections 23(3) and(4) of the Constitution Act, 1867 regard ing property qualification s forSenators?

Yes. The property qualification s are unrelated to the functioning of theSenate and the ir removal does not affect the prov inces. The propertyqualifications for Senators appointed from Quebec, set out in s. 23(6) ofthe Constitution Act, 1867 would remain.


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4, Can the Senate be abol ished by the general amending procedure (the 7 /50procedure) set ou t in s. 38 of the Constitulion Act, 1982, or is it necessary toresort to the unan imity procedure found in s. 41?

The general amending procedure cannot be used to abolish theSenate. The Senate can only be abolished through the unanimityprocedure set out in s. 41 of the Constitution Act, 1982.

PART IIIARGUMENT

A. Introduction22. A review of the Records filed by Canada and Nova Sco tia reveals that the Constitution

and its design has been the subject of much discuss ion and compromise between thefederal and provincial governmen ts since before Confede ration. The Cons titution reflects.from its inception, comprom ise be tween the provincial and the federa l governments. Theamend ing provi sions of Part V of the Constitulion Act, 1982 equa lly reflects thenecessary provinc ial -federa l dialogue at the heart of our democracy . It is Nova Scotiassubmission that Part V must be read in a manner that re spects the cons titutional principlesof federa lism and the need for a nationa l consensus before major con stitutiona l changesare adopted.

23. As this Court recognized in Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 atparas. 32 and 52 (AGCs Authorities, Tab 21), federalism is a fundamental andorgan izing principle of the Constitution, which an imates and informs this Courtsreading of the amending formulae. As a princ iple, fede ralism informs and sustains thecons titutional text, providing the necessary assistance in a proper and thoroughinterp reta tion of tha t text. Our courts neces sar ily turn to the federalism principle inin terpreting the Constitu tion : ibid, at paras. 49, 52, 56-57.

24. Although the Attorney General of Canada has focused on Senate reform in particular, thisre ference really is about the meaning and appl ica tion of the am ending provisions which


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impact on the place and role that provinces have in discussions aimed at chang ingfundamental aspects of our Constitu tion.

B. The Reference Questions1) Senate Term Limits Cannot be Effected under s. 44

25. The Attorney General of Canada argues that term limits may be imposed uni laterally byParliam ent through the application of s. 44 of Part V, Constitution Act, 1982 because theim position of a term limit does not represent a signific ant change to the Senate. TheAttorney General of Canada pos its that exclusive Parliam entary control is granted foreverything not listed as an excep tion in ss. 41 or 42; because those sec tions do notspecifically list tenure, there is no bar to Parlia m ents unilateral exe rcise of power unders. 44. Parliam ent, he argues, unilaterally lim ited Senator tenure in the past , terminating aSenators service at 75 years of age, which change su rvived this Courts scrutiny in theUpper House R eference.

26. Section 29(1) of the British North America Act(BNA Act), guaranteed an independentSenate by providing that appointees to the Senate would serve for life: Re: Authority ofParliament in relation to the U pper H ouse, [1980] 1 S.C.R. 54 (Upper HouseReference) at p. 77, AGCs Authorities, Tab 18. This was an important feature of thedeba tes and compromises leading to the creation and adoption of the Constitution. Theimposition of a m andatory retirem ent age for Senators was effected by Parliam ent unde rthe former s. 91(1) of the BNA Act, w hich provid ed for am endm ents through thepresentat ion of a joint resolution of bo th Houses of Parliament and without provincialconsent.

27. In the (/oper House R efere nce this Court determ ined that the federal author ity under s.91(1) of the BNA Act was limited to those issues that did not in any substantia l way affectfederal-provincial relationships and that a com pulsory age of seventy-five was a changewhich could be made under the fo rmer s. 9 1(1) because such a change did no t affect theessential characte r of the Senate: ibid., at pp. 65 and 77. The Court held Parliamen tsauthority was to ex tend only to what was an internal housekeeping matter of Parliaments


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control over its ow n le gislativ e process: ibid. at p 65. There is noth in g to suggest the 1982amendmen ts overrule, or were intended to change, this Courts det erm ination in theLiper House Reference. N ova Scotia submits tha t constitutional con ven tio ns cont inue toapply.

28, It is subm itted that tenure is an essen tial element of the character of the Senate and thusoutside of Par liam ent s excl usive power . Tenure and indepen de nce were key componentsof the co m prom is e made by Nova Scotia and the pro vin ces when they entered intoConfederation.

29. This Court states in the Queb ec Secession Refrrence, supra, at para. 32 (AGCs Book ofAuthorities, Tab 21):

In orde r to endure ov er time, a co nstitut ion must contain a com pre hen siv e set of[unwritten] rules and pr inciples which are capable of providing an exhaustivelegal framework for our system of gove rnm ent. Such prin cip les and rules emergefrom an unde rstand in g of the cons titutional text itselt the historical con tex t, andpreviou s judicial in terp retations of cons titutio nal meaning.

30. The Court has rec ogn ize d as a general princi ple that Parliament will not request anam endm en t directly aff ect ing federa l-p rovincial relationships w ithou t prior consulta tionand agre em ent w ith the provinces (Liper House Reference, p 64). The Senate was a termof the un ion, and th ere fore , arguably, beyond the capaci ty of Par liam ent to modifyuni laterally: Pairiation Reference [1981] 1 SCR 753, pe r hea dno te, pp 757, 764-5;AGCs Book of Authorities, Tab 20.

31. In exam in in g the scope of s. 44 of the Constitution Act, 1982, it is appa ren t on its face thesec tion per m its unila tera l am en dm ent by Parliam ent of the C onstitution of Canada inrelation to ... the Senate. This is not diss im ilar to the w ord s found in s. 91(1) of theConstitution Act, 1867, now repealed, The am end m ent from time to time of theC onstitu tion of Canada...), AGC Author ities, Tab 33. C ons istent w ith the dec ision inthe Liper House Reference , supra, at p. 70, the phrase Constitution of Canada should


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be in terpre ted as lim ited to the cons titution of the federal government and the power ofunilateral amendmen t should be confined to matters of interest on ly to that government.

32. As recognized in the Patriution Reference and in the Upper House Reference ,con stitutional am endments which affec t fede ral-provincial relationships have, as a matterof conven tion, on ly been made after consu ltat ion with and the substantial agreement ofthe provinces. This req uirement of subs tantial ag reemen t is continued in the text of PartV of the Constitution Act, 1982 in sections 38, 41, 43 and 45. These provisions all requ ireprovincial participation and dialogue on matters affecting the provinces. Section 44,Nova Scotia submits, should be read in a maimer which supports such provincial inpu tand dialogue as requ ired by the principles of federalism . Section 44 ought not to be readin the overly nar row manner argued for by the Attorney General of Canada. That narrowview is not consisten t with the pr inciples of fede ralism.

33. That narrow interpretation wou ld permit Parliament to un ilaterally make any change tothe Constitu tion re lated to the executive. Senate or House of Commons not spec ificallyenumerated by ss. 41 and 42. Such a significan t exp ansion of Parliamen ts au thority isnot consistent with this Cou rts in terpretation of that con stitutional authority in the LpperHouse Reference. There is no satis factory evidence this was the in tent of s. 44 of Part V.Canada s interp reta tion and app roach was rejected by this Court in respec t of s. 91(1); theRecord does not disclose that the provinces abandoned the pr inciples of fede ralism afterthe decision in Upper House Reference in order to perm it Canada to accomplish in s. 44what was re jec ted by the provinces in respect of the scope of the earlie r pow er in s. 91(1).

34. Canadas position that the imposition of term lim its wou ld somehow bring the ope rationof the Senate more into line with modern democratic principles igno res the reality thatboth the method of selection, whether by appointm ent or election, and the du ration of theterm of office/membership were ho tly con tested matter s by those opposed and in favourof a Canadian Confederation in the 1860s. Ultimately , the provinces com promised in1867 in respect of the very matters now unde rly ing these refe rence questions . Canadaspresent position had been previous ly rejected over 100 years ago for reasons which havenot changed over time.


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35. As recognized in the Upper House Reference at p. 76, term limits might impair thefunctioning of the Senate as a body of sober second thought. The various lengths of termlimits proposed in the reference questions all require careful consideration not to impairthe functioning of the Senate as a body independent of the House of Commons. Termlimits raise the perception that Senate decisions can be influenced by a desire to seek thegovernments approval or favour, particularly where there is a possibility of a renewableterm, as contemplated within reference question 1(e). Such a possibility is inimical to therequired independence of the Senate.

36. A Senate appointment is a lifetime opportunity to serve the interests of Canada to the ageof 75. The creation of term limits of the sort contemplated in the reference questionsopens the possibility that, upon the completion of a Senate term, a Senator might berewarded in a number of ways, including further appointments to boards, tribunals, or avariety of other offices. Such possibility may erode the independence of the Senate.

37. The ability of the Senate to remain an independent body providing a sober secondthought to House bills by the equally represented regional interests of Canada could bealtered by the imposition of term limits. The proposed terms might ensure one partycould con tro l the Senate when that party wins consecutive governments in the House ofCommons, such could preclude a proper opposition and debate, key principles of ourmodern democracy. With the current terms which expire at 75 years of age, no single orconsecutive governments are guaranteed direct control over the composition of theSenate. The impact of partisan politics within the current Senate appointment process isminimized between successive governments. The appointment process was itself anattempt to guarantee that the Upper Chamber was insulated from mercurial popular orparty sentiment. An 8 or 9 year term with the current appointment process wouldarguably undermine each of these guarantees.

38. Fur ther, on any of the proposed term limits, it is clear that upon the completion of aspecitied term, a Senator is no longer qualified to serve, regardless of age. This alters thernethod of selecting Senators, thus falling directly within the meaning of s. 42(l)(b),thus attracting the general amending formula of s. 38.


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39. None of the provisions of Part V expressly reference the ability to amend theindependence of the Senate or its functioning as a chamber of sober second thought. Onecannot conceive, however, that Parliament may unilaterally alter the intended and statedpurpose of the Senate by use of s. 44. This Courts decision in the Upper HouseReference stands today for the premise that amendments which affect fundamentalfeatures of the Senate are no t within the unilateral power of Parliament. Nova Scotiasubmits the scope of s. 44 remains limited to matters of interest only to the federa lgovernment.

40 . Thus, Nova Scotia submits that question 1 ought to be answered in the negative. Termlimits would necessarily change the fundamental character of the Senate and wouldimpact the provinces. The provinces must be a party to any constitutional amendmentsthat would impose term limits on Senate appointments.

2) Senate Appointment Consultations by Election are Not Within s. 4441. Reference questions 2 and 3 seek advice from this Court on whether Parliament may

employ s. 44 of the Constitution Act, 1982 to unilaterally enact the consultation processesdescribed in Bill C-.20 (2007) and Bill C-7 (2011): AGCs Record, Vol. 1, Tab 4 and Vol.1. Tab 2 respectively. These Bills both provide for elections as a means of consulting thegeneral public on Senate appointments.

42. The Attorney General of Canada argues in his Factum that the Senate appointmentprocess is not changed by the proposed consultation processes. The discretion to look atany factor the Prime Minister considers relevant remains and the proposed consultationsdo no t remove that discretion. At most, it is said, it commits the Prime Minister toconsider the results of a consultative process. At its highest, that sort of change amountsto a constraint on the Prime Ministers conventional authority to submit the names ofSenate nominees to the Governor General; it does not demand resort to the amendingprocedures in ss. 41 or 42: AGCs Factum, para 130. Thus, he argues, it comes withinthe exclusive unilateral power of Parliament to amend pursuant to s. 44 of Part V.


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43. The Attorney Genera l of Canada s position is that there is no thing to prevent Parliamentfrom adop ting a law re specting popular consultation on Senate appoin tm en ts, but the onlybinding procedure under the Con stitution will be the procedu re now in place until it isaltered by a 7/50 amendment.

44. Canadas po sition understa tes the fo llowing duty imposed on the Prime Minister ascontained in s. 3 of Bill C-7:

1. If a prov ince or territory has ena cted legislat ion that is sub stantially inaccordance with the framework set out in the schedule , the Prime M mister, inrecommending Senate nominees to the Governor Genera l, mus t considernames from the most current lis t of Senate nominees selec ted for that provinceor terr itory.(emphasis counsels)

45. That obligation is set out again in s. 1 of the Schedule to Bill C-7, which is the frameworkfor the selection of Senators:

1. Sena tors to be appointed for a province or territory shou ld be chosen from a listof Senate nominees submitted by the government of the province or territo ry.

46. Thus, while it is argued by the Attorney General of Canada that senatorial elections arenon-binding on the Prime Ministers discretion, it is clear that the refe rence questions andthe underlying Bills require some consideration of the fact that the Prime M mister isin tended to have a c1 to conside r the names resulting from those elections .

47. Section 42 of the Constitution Act. 1982 provides tha t the general am ending formula setout in s. 38 is required if an amendment is in respect of the pow ers of the Senate and themethod of selecting Sena tors. Is a law creating a iy compel ling a Prime Minister toconsider a list of elec ted nom inees for any Senate appointment a change to the method ofselec ting Senators, or simply an advisory gloss? Arguab ly, such proposed consultationsare an improper backdoor attempt at amend ing the Cons titu tion in a way that ignores theamend ing fo rmula and the requirement for provincial approval. Nova Sco tia submits the


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proposed consultation process is a change to the way Senators are appointed and it oughtto be presented to the provinces and tabled as a formal constitutional amendment seekingprovincial consent.

48. As it currently stands, so long as the nominee meets a set of basic consti tutionalqualifications, the Prime Minister can recommend whomever he or she wishes to theGovernor General to be appointed to the Senate.

49, Holding elections as proposed by Canada will without question affect the operation of theSenate. It is clear that Parliament canno t a lte r the operation of the Senate throughlegislation enacted under s. 91 of the Constitution Act, 1867; a constitutional amendmentis required to change the operation of the Senate. Section 44 cannot be employed asproposed by Canada because of the impact such elections would have on the democraticprocess and on the Senate.

50. Nova Sco tia supports and encourages the enhancement of Canadian democracy.However, as this Court noted in the Quebec Secession Reference, supra, at 240 (AGCsBook of Authorities, Tab 21), democracy is but one of the fundamental and organizingprinciples of the Constitution; others include federalism, constitutionalism and therule of law and respect for minorities.

51. The Sena te has a vital role as an institution forming part of the federal system created bythe Constitution Act 1867: Upper House Reference, supra, at 66. The Court noted thatunder the Constitution, the Upper House was not and is no t an elected body: ibid. TheSenate was created as part of the federal Parliament as a means of protecting sectional, orregional, interests: ibid. at 67. The Court, ibid. at 58, was asked whether Parliament hadthe authority to change the method of selection of members of the Upper House,including the following methods:

(a) Conferring authority on provincial legislative assemblies to select, on thenomination of the respective Lieutenant governors in Council, some membersof the Upper House, and, if a legislative assembly has no t selected such


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members within the time pe rmitted, au thority on the House of Com mons tose lect those members on the nomination of the Gove rnor in Council, and

(b) Confe rring au thority on the House of Com mons to select, on the nom inationof the Gove rnor General in Council, some members of the Upper House fromeach province, and, if the House of Com mons has not selected such membersfrom a province within the tim e permitted, authority on the legislativeassem bly of the prov ince to select those members on the nominat ion of theLieutenant Governor in Council,

(c) ConfelTing au thority on the Lieutenan t Governors in Council of the provincesor on som e other body or bodies to select som e or all of the m

em bers of theUpper House, or

(d) Providing for the direct election of all or some of the members of the UpperHouse by the public.

52. The Court dec lined to ru le on parts of this question as it determined it did not have asuf ficient ly developed factual basis upon which to ad jud ica te, bu t it did deal with themethod described in (d), direct elec tion by the public . The Court stated the substitu tion ofa system of elec tion for a system of appoin tment would involve a radical change in thenature of one of the component parts of Parliament. The preamble to the Constitutionreferred to a constitution sim ilar in principle to that of the United Kingdom, where theUpper House is no t elected, The Court con tinued , at 77, as fo llows:

In creating the Senate in the manner provided in the Act, it is clear tha t thein tention was to make the Senate a thoroughly independent body which couldcanvass dispassionately the measures of the House of Com mons . This wasaccomplished by providing for the appoin tmen t of members of the Senate withtenu re for life. To make the Senate a wholly or partially elec ted body would affecta cundam ental feature of that body . We would an swer this qu estion in thenegative.


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53. Bill C-7, Nova Scotia submits , amends the method of selecting senators. The P rimeMinisters legal authority to selec t nominees for appointment to the Senate will beconstrained by the provision that s/he must consider the list of Senate nominees whowere elected from a province and territory. As such, Parliament cannot impose the type ofconsultation scheme proposed by simple legislation. Instead, a constitutional amendmentis required and such amendment cannot be made under s. 44 of the Constitution Act, 1982as s. 44 should be interpreted as only a llowing amendments that do no t impact theprovinces. As set ou t in s. 42(1)(b), the type of amendment at issue must be madepursuant to the general amending formula provided in s. 38.

54. Nova Scotia submits that the Prime Minister is no t presently constrained in his ability toconsult in advance of a Senate appointment. However, the scheme proposed through thereference questions is no t constitutional because of its impact on the method of Senateselection and on the operation of the Senate and on the provinces. It might be that othertypes of consultations which would enhance the appointment process while not affectingthe Senate in a manner that impacts the provinces can be achieved through unilateralaction by Parliament; however, the changes proposed in the reference questions cannot beeffected through unilateral action pursuant to either s. 91 of the Constitution Act, 1867 ors. 44 of the Constitution Act, 1982. Signif ican t changes, such as the suggested nonbinding elections for Senators, can only occur through consultation with the provincespursuant to the amending formula set ou t in s. 38 of the ConstitutionAct, 1982.

55. The Attorney General of Nova Scotia submits tha t the reference questions 2 and 3 beanswered in the negative.3) Parliament May Remove Property Qualifications

56. The Attorney General ofNova Scotia agrees that s. 44 of the Constitution Act, 1982 is theproper amending procedure to remove the property qualifications for Senators set out inss. 23(3) and (4) of the Constitution Act, 1867.

57. The property qualifications as they relate in our modern society are no t as importanttoday as in 1867. The property qualifications in issue do not relate to the proper


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func tion ing of the Senate and are not an indicator of a persons competence or characterto serve as a Senator. To remove those qu alification s from ss. 23 (3) and (4) does notsignifican tly impact the provinces.

58. A potential anomaly might exist upon the repeal of ss. 23(3) and (4) given tha t theprop erty qua lificat ion in s. 23(6) is proposed by Canada to con tinue to be re tained in thecase of Quebec: Constitution Act, 1867, AGC Authorities, Tab 33. Subsection 23(6) willrequire a Quebec Senator to have his real prope rty qu alification , but without ss. 23(3) and(4) , what that qualification is and why that property qualification is retained is notexp lained by the Attorney General of Canada in his Factum.4) Abolition of the Senate Requires Unanimous Consent

59. A rev iew of ss. 38, 41, 42, 43, 44 and 47 of Part V informs the observation that theSenate is a necessary part of the constitutional amendm en t process. The abo lition of theSenate would fundamentally alter that amendmen t process and, as a result, such anam endment to the provisions of Pa rt V of the Constitution Act, 1982 requ ires unanimity.

60. The Attorney General of Canada argues, at pa ra 163 of his Factum, the Senate is not anessent ial ac tor in relation to any of the multilateral am ending procedures. He arguesthat the removal of the re ferences to the Senate from Part V is ins ignificant overal lbecause the Senates required consent to any amendments under ss. 38, 41 , 42 or 43 maybe dispensed with af ter 180 days should the House of Commons again adopt theresolution: para. 164. However , that po sition ignores several key com ponen ts of Part Vand the Senates entrenched critical cons titutional role as a chamber of sober secondthought. Tha t responsibility extends to the Senates su spensive veto powers.

61. Section 41 requ ires unan imous consen t in order to amend the office of the Governo rGeneral. The Gove rnor General has the express constitutional authority to summonSenators pursuant to s. 24 of the Cons titution Act, 1867. Altering the definition ofParliament to rem ove the Senate does not affect the Governor Generals authority thatpower can on ly be altered upon unan imous consent pursuant to s. 41 of the ConstitutionAct, 1982.


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62. The ex istence of the Senate underlies the ab ility to apply and recognize prov inc ial rightsto appropr iate representation in the House of Com mons as required by s. 41(1 )(b) of theConstitution Act, 1982 .

63. The righ t of the Prov inc es to he represen ted in the Senate of Canada is spelle d out in s. 22of the Constitution Act, 1867: AGC Authorities. Tab 33. If there is no Senate, themeaning of s. 4 1(b) is changed, leading to a change to Part V. A Senate resolution mustauthor ize any change to Part V. Without a Senate, the constitut ional amending processwill necessar ily be changed in the futu re.

64. Section 4 1(e) of Part V sta tes any am endment to this Part requires unan imous consentas the remova l of the requirem en t of a resolution of the Senate for future cons titutionalamendm ent can only resul t from a change to Part V of the Constitution Act 1982. Theabo lition of a key structure which was pivotal to Confederat ion without unanimousconsent of the provinces is difficul t to comprehend in our modern democracy. The meritof the proposed reform is not in issue in this reference. That the Senate and Senatedesign was of cr itica l concern to the provinces at Confede ration is a factor whichsupports provincial participation in the proposed Senate re form in itiatives. The principlesof fede ralism requ ire such pa rticipa tion . Unanimity ought to be required before such asignificant fea ture of our Constitut ion is changed; such requirement is intended to allowthe provinces to have a mean ingful voice at the Canad ian constitutional table.

65. The Attorney General of Nova Scotia submits, therefore, tha t refe rence questions 5(a),(b) and (c) should be an swered in the negativ e and that refe rence ques tion 6 should beanswered in the affirmat ive .

C. Summary

66. The reference ques tion s require a determination of whether provincial consent is requiredin the event Parliament wishes to enact reforms such as limiting the term of office ofSenators, to change the method of selec ting Sena tors for appointment to office, or toabo lish the Senate. Nova Sco tia submits that both Part V of the Constitution Act, ]982


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and the principles of federalism require that provincial consent be obtained before anythese suggested reforms can be enacted.


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PART VORDER SOUGHT

68. The Attorney General of Nova Scotia submits that reference questions 1, 2, 3 and 5should be answered in the negative. Reference questions 4 and 6 should be answered inthe affirmative.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 29h day of August, 2013./

Edward Gores, Q.C.Counsel fo r the RespondentThe Attorney General ofNova Scotia


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PART VI

TABLE OF AUTHORITIES

Cases Cited at ParagraphNos.

Reference Re Secession of Quebec, [19981 2 S.C.R. 217 23, 29 . 50

Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 26 , 27, 30 , 31, 32, 33,54 (Upper House Reference) 35, 39, 51

Re: Resolution to Amend the Constitution, [1981] 1 SCR 753 (Patriation 30 , 32Reference)

Statutes

Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 2,3,4,20,22,25,31,1982,c.11 32,33,38,39.41,42.

49, 53, 5 4, 56, 59, 61 .62, 63, 64 , 66

Constitution Act, 1867, (UK) 30 & 31 Vict. c. 3, reprinted in RSC 1985, App 6,31,33,49, 54, 56, 58,l1,No.5 61,63

British North America Act, 1967,30 & 31 Victoria, c. 3 (U.K.) 6, 18,26,27

Other Authorities

1864 The Quebec Resolutions. October. Library and Archives of Canada 5, 18


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Howe. Joseph. The Botheration Scheme No. 1. Halifax Morning Chronicle. 7, 8. 9. 10, 12ii January 1865

Howe, Joseph. The Speech es and Public Letters of Joseph Howe, ed. Joseph 7, 8,9, 10, 11Andrew Chishoim. vo l. 2, 468 492 (Halifax Chronicle Publishing CompanyLtd.)

Dunkin. Christopher, Parliamentary Debates on the Subject of the 13Confederation of British North American Provinces, (1865, Quebec: Hunter.Rose & Co.)

1987 Constitutional Accord (Meech Lake Accord) 20

1992 Charlottetown Constitutional Accord 20

PART VIILEGISLATION

1. Bill C-20 (2007), An Act to provide for consultations with the electors on their preferences fo rappointments to the Senate (First reading 13 November 2007)

Record of the Attorney General of Canada, Vol. 1, Tab 4

2. Bill C-7 (2011), An Act respecting the selection of senators and amending the Constitution Act,I 867 in respect of Senate term limits (the Senate Reform Act) (first reading 21 June 2011)

Record of the Attorney General of Canada, Vol. 1, Tab 2

nova scotia - supreme court reference on senate reform

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