Canada’s Senate: Advisory Elections and the Fettering of Discretion

The Supreme Court of Canada is hearing argument this week on a set of questions relating to the reform (or abolition) of the Senate. Part V of the Constitution Act, 1982 sets out various procedures for constitutional amendment. The Court has to determine which matters fall under which procedures.

The Senate Reference involves classical questions of constitutional law, but administrative law has (thankfully!) managed to insinuate itself into the discussion, thanks particularly to questions during oral argument from Justice Cromwell.

One of the reform proposals put forward by the federal government is the holding of advisory elections. Based on the results of these elections, the Prime Minister would make recommendations that the Governor-General to appoint new senators. At the moment, the formal position is that the power of appointment is vested in the Governor-General, a prerogative power exercisable by convention on the advice of the Prime Minister. There are no statutory limitations.

The question is whether holding advisory elections would be a change to the “method of selecting Senators” which requires a constitutional amendment. Or, to put the point as it was put in the oral arguments this morning, would the Prime Minister’s discretion be fettered by a statute requiring him to “consider” the results of advisory elections? There are a few points to make on the administrative-law aspects of the problem.

1. It is difficult to talk of fettering the prerogative, as the Court of Appeal for England and Wales has recently noted (my post is here). As the Court said, “where a policy is made in the exercise of prerogative or common law powers (rather than a statutory discretion), there is no rule of law which requires the decision-maker to consider the facts of every case with a view to deciding whether, exceptionally, to depart from the policy in a particular case” (para. 53). On this reading, a policy of holding elections on the nomination of senators or consultations with law societies on the nomination of judges would not fetter the prerogative at all.

2. If advisory elections are enshrined in statute, however, the situation might be different. If the Prime Minister did not follow the results of an advisory election, the refusal to do so could be subject to judicial review. There is no clear Canadian law on this. One might say, relying on the Conrad Black cases, that appointment to the Senate is a privilege, not a right, and thus non-justiciable.

But where there are statutory requirements which touch what is otherwise a prerogative power, it seems axiomatic that compliance with statute is required and judicially enforceable. This seems to be the conclusion the British Columbia Court of Appeal came to in a recent case involving a challenge to the appointment of a non-lawyer as Attorney General. And in the second Black case, the fact that termination of membership in the Order of Canada is regulated by a written policy was held to mean that he had an enforceable legitimate expectation that the policy would be followed.

3. Yet, if there were a statute which required the holding of advisory elections, and the Prime Minister decided to always follow the results of the advisory elections, this would presumably amount to an unlawful fettering of discretion. One point in favour of the legality of the advisory-elections proposal is that they could not lawfully be treated as binding.

4. As a general matter, surely some prior consultation does not change the formal method of appointment. For example, significant consultations are now held before the nomination of judges by the federal government. These surely are unproblematic. Does it make any difference that they are not statutory?

I do not think any of this is conclusive of the question, but I thought it helpful to set out the administrative law aspects to the problem. They are not straightforward!

This content has been updated on June 11, 2014 at 09:45.