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Court File No.: 35203 IN 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 concerning reform of the Senate, as set out in Order in Council P.C. 2013-70, dated February 1, 2013 DANS LA COUR SUPREME DU CANADA DANS L' AFFAIRE DE l'article 53 de la Loi sur fa Cour supreme, L.R .C. 1985, ch. S-26 ; ET DANS L' AFFAIRE D'UN renvoi par Ie Gouverneur en conseil concernant la reforme du Senat tel que formule dans Ie decret c.P. 2013-70 en date du l er fevrier 2013 FACTUM ATTORNEY GENERAL OF CANADA (Pursuant to Rule 46 of the Rules ofthe Supreme Court of Canadal RegIe 46 des Regles de la Cour supreme du Canada) Robert J. Frater Christopher M. Rupar Warren J. Newman William F. Pentney Deputy Attorney General of CanadaiSous-procureur general du Canada Department of Justice CanadaiMinistere de la Justice Canada 234 rue Wellington Street, Tour Est lEast Tower, Room 1161, Piece 1161 Ottawa, ON KIA OR8 Tel: (613) 957-4763 Fax: (613) 954-1920 [email protected] Counsel for the Attorney General of Canada/Procureurs du procureur general du Canada ORIGINAL TO: THE REGISTRAR TO: Burke-Robertson Barristers & Solicitors 441 MacLaren St., Suite 200 Ottawa, Ontario K2P 2H3 Per: Robert E. Houston, Q.C. Tel: (613) 566-2058 Fax: (613) 235-4430 Email: [email protected] Agents for the Attorneys General of British Columbia, Ontario, and Newfoundland & Labrador TO: Gowling Lafleur Henderson LLP 2600 - 160 Elgin Street Ottawa, Ontario KIP 1C3 Per: Henry S. Brown, Q.C. / Brian A. Crane, Q.C. Tel: (613) 786-0139/ (613) 786-0107 Fax: (613) 563-9869/ (613) 788-3500 Email: [email protected]@gowlings.com Agents for the Attorneys General of Alberta, Saskatchewan, Manitoba, New Brunswick, Prince Edward Island, Nova Scotia, and the Minister of Justice for Northwest Territories, and Nunavut TO: Noel & Associes 111, rue Champlain Gatineau, QC J8X 3Rl Per: Pierre Landry Tel: (819) 771-7393 Fax: (819) 771-5397 Email: [email protected] Agent for the Attorney General of Quebec TO: Daniel Jutras University of McGill 3644 Peel Montreal, Quebec H3A 1W9 Tel: (514) 398-6604 Fax: (514) 398-4659 Email: [email protected] Amicus curiae TO: Supreme Advocacy LLP 397 Gladstone Avenue, Suite 1 Ottawa, Ontario K2P OY9 Per: Marie-France Major Tel: (613) 695-8855 ext: 102 Fax: (613) 695-8580 Email: [email protected] Agent for Amicus curiae, John Hunter, Q.C. TO: The Honourable Serge Joyal, Senator, P.C. 250 East Block, Parliament of Canada Ottawa, Ontario KIA OA4 Tel: 613-943-0434 Fax: 613-943-0441 E-mail: [email protected] Intervener TO: Heenan Blailde LLP 300- 55 Metcalfe Street Ottawa, Ontario KIP 6L5 Per: Mark C. Power Jennifer Klinck Perri Ravon Sebastien Grammond, Ad.E. Telephone: (613) 236-7908 FAX: (866) 296-8395 E-mail: [email protected] Counsel for the Intervener, Federation des communautes francophones et acadienne du Canada TO: Heenan Blaikie LLP 300-55 Metcalfe Street Ottawa, Ontario KIP 6L5 Per: Perri Ravon Telephone: (613) 236-8071 FAX: (613) 236-9632 E-mail: [email protected] Agent for the Intervener, Societe de l'Acadie du Nouveau-Brunswick Inc. TO: Stikeman Elliott LLP 1600 - 50 O'Connor Street Ottawa, Ontario KIP 6L2 Per: Nicholas Peter McHaffie Telephone: (613) 566-0546 FAX: (613) 230-8877 E-mail: [email protected] Agent for the Intervener, Anne C. Cools, Senator 1 TABLE OF CONTENTS Page PART I - FACTS ............................................................................................................................ 1 I. Overview .......................................................................................................................... 1 II. The Constitution and the Senate ..................................................................................... 2 A. The Constitution Act, 1867 ................................................................................. 2 B. The Constitution Act, 1982 ................................................................................. 3 III. Recent Legislative Initiatives for Senate Refonn .......................................................... 6 A. Bill C-7 is Currently before Parliament .............................................................. 6 B. Other Recent Bills dealing with Senate Refonn ................................................ 7 IV. Record before the Court in this Reference .................................................................... 8 A. Christopher Manfredi .......................................................................................... 8 B. John Stilborn ...................................................................................................... 9 C. Peter McConnick ............................................................................................... 9 V. Senate Review of Proposed Legislative Refonns ......................................................... 10 A. Report ofthe Special Committee on Bill S-4 (October, 2006) ......................... 10 B. Report ofthe Standing Committee on Legal and Constitutional Affairs on Bill S-4 (June 2007) ...................................................................................... 10 C. House of Commons Review of Bill C-20 ......................................................... 11 VI. Senate Refonn in Historical Context.. ......................................................................... 11 A. Legislative and Other Proposals ...................................................................... .11 B. Recommendations from Reports on Senate Refonn ......................................... 13 i) Tenn Limits ............................................................................................ 14 ii) Method of Appointment ........................................................................ 15 iii) Property Qualifications ........................................................................ 16 C. Early History .................................................................................................... 17 i) The Senate at Confederation .................................................................. 17 ii) Early Debates and Discussions Concerning Senate Refonn ................ .20 VII. The History ofthe Amending Procedure Refonn ...................................................... 22 i) The Absence of Fonnal Amending Procedures ...................................... 22 ii) The Favreau White Paper, and the Fulton-Favreau Fonnula (1964-65) ................................................................................................... 24 11 iii) The Victoria Charter (1971) ................................................................ .26 iv) The Constitution Act, 1982 ................................................................... 26 PART II - ISSUES ....................................................................................................................... 28 PART III - ARGUMENT ............................................................................................................ 29 I. General Approach ........................................................................................................... 29 A. The Scope of the Reference .............................................................................. 29 B. The Relevant Interpretive Principles ................................................................. 29 i) The Primacy ofthe Text of the 1982 Act .............................................. .30 ii) Historical Context ................................................................................. 30 iii) Progressive Interpretation .................................................................... 32 iv) Pith and Substance ................................................................................ 33 v) The Ordinary Rules of Statutory Interpretation ..................................... 35 vi) No Need to Rely on Unwritten Constitutional Principles .................... 36 a) The Unwritten Principles Should not Modify a Clear Text ............................................................................................ 36 b) Reforms will not Impede the Protection ofMinorities .............. 37 vii) No weight should be accorded "expert" reports on domestic law .............................................................................................................. 41 II. Response to the Reference Questions .......................................................................... .42 A. Reference Questions 1 (a-d and f): Parliament May Impose Term Limits ................................................................................................................. 42 i) The Senate has Acknowledged the Desirability of Term Limits .......... .42 ii) The Purpose of the Proposed Reforms ................................................. .44 iii) The Practical Effect of Term Limits ................................................... .46 B. Reference Question l(e): Parliament May Make Terms Renewable ............... .47 C. Reference Question l(g): Parliament May Make Term Limits Apply Retrospectively .................................................................................................. 47 D. Reference Questions 2 and 3: Public Consultations ........................................ .48 i) Enacting Consultative Processes does not Require Constitutional Amendment. ..............................................................................................
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