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Legislature - Senate. Alford v. Canada (Attorney General)
In Alford v. Canada (Attorney General) (SCC, 2026) the Supreme Court of Canada dismissed an appeal, this brought against the allowing of the Crown's Ontario CA ruling that "held that s. 12 of the NSICOP [SS: 'National Security and Intelligence Committee of Parliamentarians Act'] Act is intra vires Parliament’s legislative authority under s. 18 of the Constitution Act, 1867.".
Here the court considers whether NSICOPA s.12 is consistent with Constitution Act s.42(1)(b) ['Amendment by general procedure'] regarding Senate powers:E. Section 12 Does Not Run Afoul of Section 42(1)(b) or (d) of the Constitution Act, 1982
[85] The appellant argues that s. 12 changes the “powers of the Senate” as described in s. 42(1)(b) of the Constitution Act, 1982 and the role of this Court in adjudicating disputes arising from prosecutions of parliamentarians as contemplated by the NSICOP Act, in contravention of s. 42(1)(d). Such changes could only be implemented by means of a constitutional amendment under the general amending procedure set out in s. 38(1) of the Constitution Act, 1982.
[86] In my view, the appellant’s submissions rest on a misinterpretation of the phrase “powers of the Senate”, which does not relate to parliamentary privilege; nor does s. 12 reshape this Court’s constitutional role.
(1) Amendments in Relation to the “Powers of the Senate” (Section 42(1)(b))
[87] The appellant argues, and the application judge accepted, that the limitation on the privilege of freedom of speech in Parliament operated by s. 12 of the NSICOP Act, as it applied to senators, was a modification to the “powers of the Senate” within the meaning of s. 42(1)(b) of the Constitution Act, 1982. In accordance with the terms of s. 42(1), such a change would have required a constitutional amendment pursuant to the general amending formula set out in s. 38(1) and could not therefore have been achieved by ordinary legislation. In my respectful view, s. 42(1)(b) cannot be so construed.
[88] The phrase “powers of the Senate” in s. 42(1)(b) does not refer to the parliamentary privileges of the Senate but rather to the legislative powers of the Senate as the upper house of Canada’s bicameral Parliament. In my view, the type of constitutional amendments which are contemplated by this paragraph is comparable to those introduced, in the United Kingdom, by the Parliament Act, 1911, 1 & 2 Geo. 5, c. 13, and the Parliament Act, 1949, 1949, c. 103, which enabled legislation to be enacted without the consent of the House of Lords in certain circumstances. These statutes limited the legislative power of the upper house by giving the other constituent parts of Parliament, i.e., the Sovereign and the elected House of Commons, the authority to overcome the Lords’ veto after a set period of time has elapsed. Per s. 42(1)(b), such a change to the rules of bicameralism in Canada would require a constitutional amendment passed with the consent of the required number of provinces.
[89] This is so because curtailing the Senate’s legislative powers would engage provincial interests. Section 42(1)(b) must be read within the context of s. 42 as a whole, whose clear purpose is to entrench certain matters in which provinces have a significant interest beyond the reach of Parliament’s unilateral legislative authority.
[90] This Court in the Upper House Reference explained that a primary purpose of the Senate as it was designed at Confederation was to afford protection to the various regional and provincial interests in Canada in relation to the enactment of federal legislation (p. 67). The Court held that while s. 91(1) of the Constitution Act, 1867 (the predecessor to s. 44 of the Constitution Act, 1982) would permit the Parliament of Canada to make changes to the Senate, it would not be open to it to unilaterally alter the “fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process” (p. 78). The Court identified four such features in which the provinces have an interest: the legislative powers of the Senate (at p. 72), the method of selection of its members (at p. 77), the residence requirements of senators (at p. 76), and the number of senators appointed from each region (p. 76; see also Projet de loi fédéral relatif au sénat, Re, 2013 QCCA 1807, 370 D.L.R. (4th) 711, at paras. 39-40).
[91] In 1982, the framers explicitly subscribed to the Court’s view that any change to these essential features of the Senate as a regionally representative legislative body would require provincial consent. Indeed, these are all matters which are now listed in the paragraphs of s. 42(1) of the Constitution Act, 1982.
[92] The narrow limitation on parliamentary privilege imposed by s. 12 of the NSICOP Act does not alter the role of the Senate in the exercise of federal legislative power nor does it affect provincial interests in any way. This is therefore not the kind of change that is captured by s. 42(1)(b) of the Constitution Act, 1982. . FU2 Productions Ltd. v. Canada
In FU2 Productions Ltd. v. Canada (Fed CA, 2024) the Federal Court of Appeal considers (and dismisses) an appeal from an interlocutory order in favour of the Respondent Canada that struck "passages from the notice of appeal and allowing the respondent to file its reply within 60 days of the Court’s order" (the court dealt with the Notice of Appeal as a 'pleading'), here where the respondent challenged the validity of the statute: "Economic Action Plan 2014 Act, No. 2", for inadequate Senate passage:[3] The appellant filed an appeal in the Tax Court, challenging, among other things, the validity of the EAP 2014 Act. Its position was that when the EAP 2014 Act was passed, the Senate had 17 vacancies, rendering the EAP 2014 Act invalid, according to the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, Appendix II, No. 5. The argument is that there was insufficient representation from the provinces and territories in the Senate, the Senate was not properly constituted and thus could not validly pass legislation.
[4] The respondent successfully moved to strike the passages in the notice of appeal relating to this argument, on the basis that it had no reasonable prospect of success.
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[6] Here, the standard of review is correctness, as the appeal raises a question of law — the Tax Court’s decision to strike the passages was based on its interpretation of sections 21, 22, and 35 of the Constitution Act, 1867.
[7] We see no error in the Tax Court’s decision requiring this Court’s intervention. The Tax Court correctly stated and applied the test for striking out pleadings — whether it is "“plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action”": R. v. Imperial Tobacco, 2011 SCC 42 at para. 17; Canadian Imperial Bank of Commerce v. Canada, 2013 FCA 122 at para. 7; TCC Reasons at paras. 27-28.
[8] The Tax Court considered the respondent’s arguments in support of its motion to strike: (a) that the Tax Court does not have jurisdiction to review whether the Senate validly passed the EAP 2014 Act, as this is within the exclusive jurisdiction of Parliament; and (b) the Senate vacancy argument.
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[10] On the Senate vacancy issue, we agree with the Tax Court’s reasons: TCC Reasons at paras. 44-61. The Tax Court adopted an interpretation of sections 21, 22, and 35 of the Constitution Act, 1867 that is consistent with their text, context, and purpose. We disagree with the appellant’s submissions that the Tax Court took a purely textual approach.
[11] As the Tax Court concluded, the language of sections 21 and 22 — which concern the number of senators and the representation of provinces respectively — is "“subject to the Provisions of this Act”": TCC Reasons at para. 46. We reject the appellant’s argument that the "“subject to”" language is limited in its application to sections 26, 27 and 28 of the Constitution Act, 1867.
[12] Crucially, section 35 makes it clear that the Senate may exercise its powers notwithstanding any vacancies, as long as there is a quorum of senators:"Quorum of Senate "
"Quorum du Sénat"" "
"35 Until the Parliament of Canada otherwise provides, the Presence of at least Fifteen Senators, including the Speaker, shall be necessary to constitute a Meeting of the Senate for the Exercise of its Powers. "
"35 ""Jusqu’à ce que le parlement du Canada en ordonne autrement, la présence d’au moins quinze sénateurs, y compris l’orateur, sera nécessaire pour constituer une assemblée du Sénat dans l’exercice de ses fonctions." [13] Accordingly, it was plain and obvious that the appellant’s Senate vacancy argument had no reasonable prospect of success: TCC Reasons at para. 61. As noted at the hearing in this Court, the untenable implication of the appellant’s Senate vacancy argument is that any legislation passed by a quorum of the Senate when there are vacancies in the Senate could also be invalid.
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