BACKGROUNDER - SENATE TENURE

May 30, 2006

There is currently no fixed tenure for Senators, apart from the broad parameters set out in the Constitution Act, 1867.  Pursuant to section 23 of the Act, Senators “shall be of the full age of Thirty Years”, and according to section 29 (2), a Senator shall “hold his place in the Senate until he attains the age of seventy-five years”.  Thus, a Senator could serve a term as long as 45 years should he or she be appointed at the age of 30 and serve until the mandated retirement age.

A longer tenure for Senators than for members of the House of Commons is linked to the original concept of the Senate as an independent institution that both complements and provides balance to the elected House of Commons through independent, sober second thought.

Senators were originally appointed to the Senate “for Life”, but that was changed unilaterally by Parliament through an amendment to section 29 of the Constitution Act, 1867 (via the Constitution Act, 1965) that created the current mandatory retirement provision for Senators attaining the age of 75 years.

In 1980, the Supreme Court of Canada ruled in the Senate Reference that it would be beyond the legislative authority of Parliament to amend the Constitution to abolish the Senate or otherwise to alter its fundamental features and essential characteristics.  The Court did not rule specifically on the issue of Senate tenure, but cited the 1965 amendment as an example of how Parliament could act alone to amend the Constitution. 

The essential characteristics identified by the Court were, for the most part, protected expressly in section 42 of the Constitution Act, 1982, which provides that changes to “the powers of the Senate and the method of selecting Senators” and “the numbers of members by which a province is entitled to be represented in the Senate” require the support of the Houses of Parliament and the legislative assemblies of two-thirds of the provinces.  Section 42 does not refer specifically to the tenure of Senators.

Pursuant to section 44 of the Constitution Act, 1982, Parliament may unilaterally make laws amending the Constitution of Canada in relation to the executive government of Canada, or the Senate and the House of Commons.  This bill uses section 44 to amend section 29 of the Constitution Act, 1867 to limit the tenure to eight years.  A term of eight years will allow Senators to gain the experience necessary to fulfil the Senate’s important role in legislative review and investigation, while at the same ensuring that the Senate is refreshed with new perspectives and ideas on a regular basis.