Venice Commission - Report on Bicameralism

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Canada

1.Has the country always had a bicameral parliamentary (or congressional) system? If not, from when did the country adopt a bicameral system? Is there a public debate about keeping bicameralism or moving to a unicameral system? Why? What are the terms of the debate? What is the public perception of the usefulness and acceptability (legitimacy) of the second chamber?

Since Canada was established as a Dominion in 1867, unifying several British colonies into a federation under the British North America Act (now called the Constitution Act, 1867). Canada has always had a bicameral parliamentary system at the federal level. During the course of the next hundred years, the five of the ten provinces which also had bicameral legislatures amended their provincial constitutions and abolished their upper houses (called legislative councils). However, although the option of abolishing the federal Parliament’s upper house, called the Senate, has been examined from time to time, including in two advisory opinions rendered by the Supreme Court of Canada, this option has never been seriously pursued. This is because it is broadly recognized that almost every federation in the world has an upper house in its central parliamentary or congressional system to represent, to a greater or lesser degree, regional or local state or provincial interests, including those of minorities. As well, in Canada, a constitutional amendment under the unanimous consent procedure would be required to abolish the Senate, which would be very difficult to achieve (requiring the concurrence of the House of Commons (the Senate having only a suspensive veto over the process) and all ten provincial legislative assemblies.
Public debate about the usefulness and legitimacy of the Senate has occurred from time to time, particularly in the Western provinces, which would like equal representation in the Senate, and with respect to the fact that the Senate is a body that is appointed, not elected. The debate was at its height about ten years ago, when several Senators were suspended for alleged misuse of public funds or other irregularities. One prominent political party, the New Democratic Party, has consistently argued for the abolition of the Senate. When incremental reforms proposed by the previous Conservative government were ruled unconstitutional by the Supreme Court as exceeding Parliament’s powers to enact without a complex constitutional amendment, the current Liberal administration put in place policy measures to make the Senate less partisan and to ensure a more independent appointments process.

2.What is the population of the country? What is its size?

According to the national statistical office, Statistics Canada, Canada’s population currently stands at 39 million, 890 thousand and 576 persons.
Canada is the second largest country in the world, in terms of area: 9, 984, 670 square kilometres, spread out over ten provinces and three northern territories.

3.What form of state and form of government has the country? Please provide details with reference to relevant constitutional provisions. a) Unitarian or federal/regional/other form of decentralization; b) Parliamentary, presidential, semi-presidential or mixed

Canada is a federal state, with a constitutional monarchy and a parliamentary form of democratic government. The preamble to the Constitution Act, 1867, records the desire of the original provinces to be “federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom”. As the country evolved and became an independent state, the Crown also became divisible, such that it is proper to speak of the Crown in right of Canada (and at the provincial level, the Crown in right of the province). Canada’s independence is reflected in the fact that it is His Majesty’s Canadian Ministers who advise the King in relation to Canadian matters. The King is represented in Canada by the Governor General and the provincial Lieutenant Governors.
Through the preamble, Canada has inherited many of the unwritten constitutional principles and constitutional conventions that govern the exercise of formal powers in the United Kingdom, including the principles of the rule of law and responsible government.
The executive government and authority “of and over Canada” is formally vested, by section 9 of the Constitution Act, 1867, in the King. (Section 9 mentions “the Queen” – at the time of Confederation in 1867, the reigning monarch was Queen Victoria—but the references to “the Queen” in the Act’s provisions mean whoever is the reigning Sovereign.) The King’s Privy Council for Canada is established by section 11 and is presided over by the Governor General. Privy Councillors may be commissioned by the Governor General to be Ministers of the Crown, and by constitutional convention, these Ministers are usually chosen from the elected members of the House of Commons, on the advice of the Prime Minister.
The Parliament of Canada is established by section 17 of the Constitution Act, 1867, and consists of the King, “an Upper House styled the Senate”, and the House of Commons. By constitutional convention, the Ministry (the Cabinet) must maintain the confidence of the elected house, the Commons.
The Senate was modelled on the United Kingdom’s House of Lords, insofar as the Senate is a body in which Senators are appointed by the Governor General in the name of the King, and have long tenure (until 1965, for life; since 1965, until a retirement age of 75 years). As well, Senators must hold real and personal property amounting to at least $4,000 Canadian dollars, a significant sum in 1867, when it was thought that landed interests should be represented in the upper house and would contribute to the Senate’s role of exercising “sober second thought” in the enactment of federal legislation. The property requirement has receded in relative importance over time. The relevant provisions of the Constitution Act, 1867 are section 24 (appointment), section 23 (qualifications), and section 29 (tenure).

4.How many members are in the lower house?

There are currently 338 members in the House of Commons. Each member represents a single electoral district, or riding.

5.How many members has the second chamber?

The Senate is composed of 105 members, or Senators. (See sections 21 and 22 of the Constitution Act, 1867, as amended.) Exceptionally, this number may be increased temporarily by four or eight members (sections 26 and 27). This mechanism was resorted to only once, in 1988.

6.How are members of the second chamber selected? Please describe: a) direct/indirect/mixed suffrage (if the suffrage is indirect or mixed, who elects or appoints the second chamber? b) territorial or other criteria; i) region/provinces/municipalities/others; ii) professional categories/ethnic/age/other; c) candidates’ independence from/affiliation with political parties; d) in case of indirect election, is there an imperative mandate or a similar practice?

In accordance with section 24 of the Constitution Act, 1867, it is the Governor General, acting in the King’s name, who shall, by a formal written instrument, “summon” (appoint) “qualified Persons” to the Senate; and “every Person so summoned shall become and be a Member of the Senate and a Senator”. In practice, and by constitutional convention, it is the Prime Minister who advises the Governor General as to whom to “summon” and appoint to the Senate.
In terms of territorial criteria, the provinces and territories are represented in the Senate as follows: 24 Senators for the province of Ontario; 24 Senators for the province of Quebec; 24 Senators for the Maritime provinces (that is, 10 Senators for Nova Scotia, 10 for New Brunswick, and 4 for Prince Edward Island); 24 Senators for the Western provinces (6 Senators for Manitoba, 6 for British Columbia, 6 for Saskatchewan, 6 for Alberta); 6 Senators for the province of Newfoundland and Labrador; and 1 Senator each for the Yukon Territory, the Northwest Territories and Nunavut (see section 22 of the Constitution Act, 1867).
As mentioned earlier, the Western provinces, particularly British Columbia and Alberta, which have become more populous over recent years, have sought, from time to time, to propose increased representation, or more equitable representation in terms of numbers in the Senate, but that would require a constitutional amendment pursuant to the general procedure set out in section 38 and 42 of the Constitution Act, 1982, requiring the concurrence of the Senate (suspensive veto only), the House of Commons, and the legislative assemblies of at least two-thirds of the provinces having, in the aggregate, at least 50 per cent of the population of the provinces (the 7/50 rule).
There are no other constitutionally-mandated criteria other than that the persons appointed must be at least 30 years of age, be Canadian citizens, hold real property valued at least $4,000 dollars, hold real and personal property worth $4,000 over debts and liabilities, must be resident in the province for which they are appointed, and in the case of Quebec, hold the real property in specific electoral divisions (pre-dating Confederation) or be resident in that division. (See section 23 of the Constitution Act, 1867.)
In the early years of the Senate, lawyers and other professional elites tended to be appointed. Over time, an enlightened appointments policy saw much more diversity, including an increase in women, members from Indigenous peoples, linguistic and other minorities. (In the celebrated Edwards case, the Judicial Committee of the Privy Council decided that women were “qualified Persons” within the meaning of the provisions of the British North America Act, 1867, and thus eligible for appointment to the Senate.)
In terms of political affiliation and independence, from its inception, the Senate tended to be made up of members who were, at least notionally and in many cases more partisanly, adherents of the one or the other of the two major political parties. This did not sit easily with the Senate’s independent role, but it did make for a certain degree of efficiency in the legislative process, at least when the majority party in the lower house formed the government and also had a majority in the Senate.
When the current administration was first elected in 2015, the Prime Minister put into place a new policy, setting up an Independent Advisory Board for Senate Appointments, with new, non-partisan criteria for a short list of candidates whose names would be proposed to the Prime Minister.
Amongst the merit-based criteria established by the Government, it is stated:
“Individuals must demonstrate to the Advisory Board that they have the ability to bring a perspective and contribution to the work of the Senate that is independent and non-partisan. They will also have to disclose any political involvement and activities. Past political activities would not disqualify an applicant.”

7.Age. What is the age limit to elect and be elected or appointed to the second chamber? Does it coincide with the lower chamber? Are there other requirements for election than those for members of lower chambers?

To be appointed to the Senate of Canada, one must have attained “the full age of Thirty Years” (see section 23, Constitution Act, 1867). Generally, Senators tend to be significantly older than the constitutional minimum age at the time of appointment. As for the lower house, in 1970, the Canada Elections Act reduced the age to vote and to be eligible for election to the House of Commons, from 21 to 18 years of age.

8.Gender. Are there any requirements to achieve gender parity between men and women in the composition of the second chamber or is there any gender quota system? If so, is there a similar requirement or gender quota system for the lower chamber?

There is no constitutional requirement to achieve gender parity in the Senate. This has been effectively achieved, however, in recent years, by an enlightened appointments policy. In 1929, the Judicial Committee of the Privy Council (then Canada’s final court of appeal) ruled in Edwards v. Attorney General for Canada [1930] A.C. 124, that Canada’s constitutional statute, the British North America Act of 1867, must be interpreted as having “planted in Canada a living tree, capable of growth and expansion within its natural limits”, and so construed the provisions of the Act referring to the appointment of “qualified Persons” to the Senate as including eligible women.
The first woman was appointed to the Senate in 1930. As of May 2023, of the 90 Senators currently sitting, 48 are women. (There are 105 places in the Senate, including 15 vacancies at present,) The current Speaker of the Senate is also a woman.
Likewise, there is no constitutionally-mandated gender quota system for the lower, elected house. In the last election to the House of Commons, 103 women were elected out of a total of 338 seats.
Amongst the considerations taken into account by the Independent Advisory Board for Senate Appointments, it is stated:
“Individuals will be considered with a view to achieving gender balance in the Senate. Priority consideration will be given to applicants who represent Indigenous peoples and linguistic, minority and ethnic communities, with a view to ensuring representation of those communities in the Senate.”

9.Term of office or tenure. Duration? Does it coincide with lower chamber? Does the second chamber follow the continuity rule (members are not replaced all at once, new elections concern only part of the chamber at a time)? Can the second chamber be dissolved and if yes, who and how exercises its competences in the meantime? Please report any particularity.

Under the Constitution Act, 1867, Senators enjoyed life tenure. Section 29 of the Act was amended in 1965, however, to provide for retirement at 75 years of age. Thus hypothetically, a Senator appointed at the minimum age of 30 years of age could remain in the Senate for a term of 45 years, although given that most Senators are appointed at a more senior age, the average term a Senator serves is around 11 years.
Between 2006 and 2013, in its various Senate reform bills, the previous Conservative government proposed term limits of 8 years or 9 years. The possibility of renewal was also considered. However, in its advisory opinion in the Senate Reform Reference in 2014, the Supreme Court of Canada ruled that changing the tenure of Senators from what was still, effectively, active life, to a limited term, was beyond the power of the Parliament of Canada to enact and would require a constitutional amendment under the general amending procedure, requiring the authorization of not only the federal houses but a significant majority of provincial legislative assemblies.
With respect to dissolution, it is really the House of Commons that is dissolved (see section 50, Constitution Act, 1867) at the time of a general election, rather than the appointed upper house, but since the executive proclamation dissolving “Parliament” is directed to the members of both houses and discharges them from their duties, the Senate cannot meet until the next House of Commons is summoned (section 38, Constitution Act, 1867) and Parliament is assembled. As in the Commons, all legislative bills and other items on the Order Paper die, and all committees cease to exist, with the exception of the Standing Committee on Internal Economy, Budgets and Administration, and the Standing Committee on Ethics and Conflicts of Interest for Senators.
Dissolution has no effect on the tenure of office of Senators. As well, the Speaker of the Senate remains in place during the parliamentary dissolution period and until replaced.

10.Congruence. Is it common for the second chamber to have a similar party composition (majority-minority) to that of the lower chamber?

Prior to 2016, the Senate was organized along party lines and it was fairly common for the government of the day to have a majority of members in both the House of Commons (the elected, lower house) and the Senate (the appointed, upper house). However, there were times when tensions would result from a government having won a majority of seats in the Commons but not having been in office for some time prior, and thus not having appointed a majority of the Senators then sitting. This occurred, for example, when the Conservative government was elected in 1984. Since 2016, with a new, more independent appointments policy in place, a broad majority of Senators now have no party affiliation.
Amongst the merit-based criteria established by the Government and applied by the Independent Advisory Board for Senate Appointments, it is stated:
“Individuals must demonstrate to the Advisory Board that they have the ability to bring a perspective and contribution to the work of the Senate that is independent and non-partisan. They will also have to disclose any political involvement and activities. Past political activities would not disqualify an applicant.”

11.Status. Are there differences between the legal status of members of the two chambers, and if so, what (e.g., immunity, conflict of interest)?

Generally speaking and in principle, there are no differences in legal status per se, although particular provisions apply to the Senate and to the House of Commons and their members. Under section 18 of the Constitution Act, 1867, the Parliament of Canada is empowered to define, from time to time by Act of Parliament, the “privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively”. Section 4 of the Parliament of Canada Act, in turn, provides as follows:
4 The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise
• (a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and
• (b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.

Part II of the Parliament of Canada Act sets out a series of provisions relating to the Senate (sub-divided in detail within sections 16 to 20, and dealing with conflicts of interest, the Deputy Speaker, internal administration, regulations, financial administration, and in particular the Standing Senate Committee on Internal Economy, Budgets and Administration, and the Senate Ethics Officer). Similarly, Part III of the Parliament of Canada Act relates to such matters in respect of the House of Commons and its members.

12.Rules of procedure. How are the rules governing the second chamber established? Are they different from the lower chamber’s and what are the most relevant differences? Are the internal regulations controlled by the constitutional judge?

The Rules of the Senate (in French, Le Règlement du Sénat) are established by the Senate itself as a self-regulating parliamentary body, and are thus essentially rules of internal regulation, not statutory instruments. As was noted by the Clerk of the Senate in 2013, “The Rules of the Senate derive from constitutional and statutory sources, as well as parliamentary conventions, traditions and usages, and the practices adopted from time to time.” For further information, see Senate Procedure in Practice / La procedure du Sénat en pratique, published by the Senate, June 2015 and Companion to the Rules of the Senate of Canada / Document d’accompagnment du Règlement du Sénat du Canada, 2nd edition, November 2013.
The House of Commons is internally regulated by the Standing Orders (le Règlement) of that House.
Of course, there are important rules governing procedure that are found in the text of the Constitution Act, 1867—for exemple, section 133, which requires the enactment of bills and the printing and publication of the Acts of Parliament simultaneously in English and French—and in the Parliament of Canada Act.
As a rule, the courts respect the principle of parliamentary privilege and will not interfere with the internal workings of either house. Certain constitutional rules are, however, enforceable by the courts, including the manner-and-form requirement of bilingual enactment of legislation. Failure to respect this requirement may result in a declaration of invalidity: see Manitoba Language Rights Reference, [1985] 1 S.C.R. 721. On the interaction between parliamentary privilege and the courts, see generally, Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667; Warren J. Newman, “Parliamentary Privilege, the Canadian Constitution and the Courts”, (2008) vol. 39:3, Ottawa Law Review, pp. 573-609.

13.Powers/competences: Are the powers and competences the same in the two chambers (symmetrical bicameralism)? If the bicameralism is asymmetrical, what are the powers of the second chamber? Please describe: i) financial; ii) legislative; iii) oversight/control; iv) other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc; v) interim powers (e. g. in case of dissolution of the first chamber). a) Distinguish issues which are not submitted at all to the second chamber/where the final decision is taken by the first chamber/where the second chamber has a limited veto right etc. Please address these questions the other way round if the second chamber has more powers than the first one; b) Are there specific appointments that must be done solely by the second chamber? If so, the appointment must be done by supermajority/qualified majority/simple majority/absolute majority? c) What kind of parliamentary initiative can the first and second chamber exercise? d) What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism); how many readings before the final decision? Does a mixed commission meet? e) To which chamber are draft laws and other drafts to be examined by Parliament or the legislature submitted first? f) Is the government responsible to the second chamber (when it is before the first one)? g) Are decisions taken by a joint meeting of both chambers and, in the affirmative, which ones? h) Does the second chamber have a specific role in emergency situations?

In principle, the powers of both the upper chamber, the Senate, and the lower chamber, the House of Commons, are similar. Both are political, deliberative bodies that are essential to the legislative process. No bill can become law without having first received three readings and passage by each house. Legislative bills can be first introduced in either house, except for money bills (financial and tax measures), which in accordance with section 53 of the Constitution Act, 1867, must originate in the House of Commons.
The Senate has long been distinguished by its committee work; Senate committees not only devote considerable time and resources to the study of legislative bills, but also conduct studies and issue reports on many matters of public and social interest. This too is in keeping with the Senate’s “sober second thought” function.
The Senate has a veto over a narrow range of constitutional amendments: those that require the passage and enactment of an ordinary bill by Parliament (section 44 of the Constitution Act, 1982). For most amendments to the Constitution of Canada (those made pursuant to sections 38, 41, 42 and 43 of the Act) the Senate’s authorization by resolution is contemplated and the amendment process may be initiated in the Senate (see section 46), but the refusal or failure of the Senate to adopt an authorizing resolution may be overridden, after a six-month delay, by the House of Commons (see section 47 of the Constitution Act, 1982). This ensures that with major, structural amendments, the Senate, an unelected body, cannot veto a reform desired and approved by the elected federal house and provincial legislative assemblies.
The confidence chamber is the elected house, the House of Commons. Similarly, the government is responsible to the House of Commons.
Most senior public officers are appointed by the Governor in Council (that is, the Governor General acting on the advice of the Privy Council, i.e. the Cabinet Ministry), but some statutory powers of appointment require consultation with one or the other or both houses, as is the case, for example, with the Senate Ethics Officer (consultation with the Government Representative in the Senate, the Leader of the Opposition in the Senate and the leader of every other recognized party or parliamentary group in the Senate and after approval of the appointment by resolution of the Senate).
As mentioned, bills (except money bills) may be introduced in either the Senate or the House of Commons. The Senate may propose amendments to a bill that originated in the Commons, in which case, the bill is returned to the Commons for its concurrence, or not, in the amendments. Although in theory, the Senate could again propose its amendments and the bill would return again to the Commons, in practice, the Senate will not insist on amendments that have been already proposed by the Senate and debated and rejected by the House. This is because the Senate will, at that point, cede to the wishes of the popularly-elected House of Commons. For the same reasons of popular legitimacy, it is rare that the Senate will defeat a bill that has been passed by the House of Commons.
The Senate and the House of Commons often cooperate, notably in forming Joint Committees to study special issues of interest (for example, there have been Joint Committees on the Constitution, and on Official Languages). Occasionally, there has been a Joint Address of both houses to the Sovereign (proposing the enactment of the Canada Act 1982). Under section 99 of the Constitution Act, 1867, “the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons”; in practice, this power has seldom been resorted to and today must be read in conjunction with the provisions for a judicial inquiry that are set out in the Judges Act.
Under the Emergencies Act, both the Senate and the House of Commons have significant roles in parliamentary supervision in relation to a declaration of emergency by the Government, including its revocation or continuation. Moreover, the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency mustl be reviewed by a committee of both Houses of Parliament designated or established for that purpose (see section 69). More generally, under the Rules of the Senate, a Senator who wishes to raise a matter of urgent public interest may request that an emergency debate be held on that subject; the matter proposed for debate must relate to a genuine emergency.
In Canada, there are ongoing or occasional, formal or informal arrangements for conferences and meetings of First Ministers and senior officials representing the federal and provincial governments. The Canadian Intergovernmental Conference Secretariat is an agency whose mandate is to provide administrative support and planning services for federal-provincial-territorial and provincial-territorial conferences of First Ministers, Ministers and Deputy Ministers, throughout Canada, and is a useful resource to consult on the history of previous and current meetings. As these are essentially exercises in executive federalism, they do not involve legislative bodies like the Senate, per se.
In terms of other relevant observations on the bicameral system of Canada, the Senate has been difficult to reform, constitutionally, but it has evolved over time nonetheless, notably by an enlightened appointments policy reflecting modern Canadian values of federalism and diversity, and because of a better understanding of the Senate’s fundamental role in our constitutional framework. As Professor Mark Walters, Dean of Law at Queen’s University, has written, before reforming the Senate, one must first grasp its essential form. (See: “The Constitutional Form and Reform of the Senate: Thoughts on the Constitutionality of Bill C‐7” (2013), 7 Journal of Parliamentary and Political Law 37.) The Supreme Court of Canada, in its advisory opinion in the Senate Reform Reference, [2014] 1 S.C.R. 704, (in excerpts below drawn from paras. 1, 14-16, 26, 56-59), stated cogently:
The Senate is one of Canada’s foundational political institutions. It lies at the heart of the agreements that gave birth to the Canadian federation. Yet from its first sittings, voices have called for reform of the Senate and even, on occasion, for its outright abolition.
The framers of the Constitution Act, 1867 sought to adapt the British form of government to a new country, in order to have a “Constitution similar in Principle to that of the United Kingdom”: preamble. They wanted to preserve the British structure of a lower legislative chamber composed of elected representatives, an upper legislative chamber made up of elites appointed by the Crown, and the Crown as head of state.
The upper legislative chamber, which the framers named the Senate, was modeled on the British House of Lords, but adapted to Canadian realities. As in the United Kingdom, it was intended to provide “sober second thought” on the legislation adopted by the popular representatives in the House of Commons […] However, it played the additional role of providing a distinct form of representation for the regions that had joined Confederation and ceded a significant portion of their legislative powers to the new federal Parliament […] While representation in the House of Commons was proportional to the population of the new Canadian provinces, each region was provided equal representation in the Senate irrespective of population. This was intended to assure the regions that their voices would continue to be heard in the legislative process even though they might become minorities within the overall population of Canada […]
Over time, the Senate also came to represent various groups that were under-represented in the House of Commons. It served as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process […]
[T]he Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text.
The contrast between election for members of the House of Commons and executive appointment for Senators is not an accident of history. The framers of the Constitution Act, 1867 deliberately chose executive appointment of Senators in order to allow the Senate to play the specific role of a complementary legislative body of “sober second thought”.
The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives.
Correlatively, the choice of executive appointment for Senators was also intended to ensure that the Senate would be a complementary legislative body, rather than a perennial rival of the House of Commons in the legislative process. Appointed Senators would not have a popular mandate — they would not have the expectations and legitimacy that stem from popular election. This would ensure that they would confine themselves to their role as a body mainly conducting legislative review, rather than as a coequal of the House of Commons. As John A. Macdonald put it during the Parliamentary debates regarding Confederation, “[t]here is . . . a greater danger of an irreconcilable difference of opinion between the two branches of the legislature, if the upper be elective, than if it holds its commission from the Crown”: 1865 Debates, February 6, 1865, at p. 37. An appointed Senate would be a body “calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people”: ibid., at p. 36 (emphasis added).
The appointed status of Senators, with its attendant assumption that appointment would prevent Senators from overstepping their role as a complementary legislative body, shapes the architecture of the Constitution Act, 1867. It explains why the framers did not deem it necessary to textually specify how the powers of the Senate relate to those of the House of Commons or how to resolve a deadlock between the two chambers. Indeed, on its face the Constitution Act, 1867 grants as much legislative power to the Senate as to the House of Commons, with the exception that the House of Commons has the exclusive power to originate appropriation and tax bills (s. 53). […]

In the circumstances, the Supreme Court held that it would be beyond the power of Parliament to legislate a process for popular consultations that would effectively give Senators a popular mandate, that would rival that of elected members of the House of Commons. Any such reform would, the Court reasoned, require a constitutional amendment in relation to the method of selecting Senators, and thus require the authorization of not only the federal houses but also those of at least seven of the ten provincial legislative assemblies, representing at least 50 per cent of the population of the provinces (see Constitution Act, 1982, sections 38 and 42).