Discovering the Senate's Fundamental Nature: Moving beyond the Supreme Court's 2014 Opinion

Abstract

AbstractIn the 2014 reference, the Supreme Court sought to discover the Senate's “essential nature” in order to determine what reforms parliament could legislate unilaterally. Making use of a classification model found in comparative and historical studies, the Court concluded that the Senate was a “complementary legislative body of sober second thought.” This article re-examines the Court's narrow definition of the Senate's perceived role and presents evidence that its essential characteristics are direct continuations of various pre-Confederation design principles. Limiting a description of its architecture to a single model that eclipses all other roles the Senate may play shifts the debate on Senate reform, which in the recent past has laid emphasis on resolving the conflict among the models embedded in the upper chamber's essential characteristics. The article concludes by reviewing previous constitutional initiatives that aimed at bringing those models more in tune with modern Canada and by making suggestions about how reform proposals could better succeed.