I did look at the constitutionality of Bill C-19. I looked at it when it was S-4. In the current version, a senator's term is non-renewable. Whether it is or is not renewable is very important. This is because, in assessing the essential characteristics of the Senate that were discussed in the 1980 Senate Reference, the role played by the Senate and the importance of the senators' independence in fulfilling their state roles must be taken into account.
In my view, this is absolutely fundamental. Senate independence is not the same as judicial independence. But there is one fundamental characteristic. Senators must not find themselves, as members of the House of Commons do, facing elections at short and specified intervals. The question of independence, the question that has to be asked, in my view, means knowing whether the mandate that senators are going to be given will allow them to continue the unencumbered role they have played up to now in the legislative process. Will they remain independent enough for it to be concluded that the fundamental characteristics of the Senate have not been changed? That is the question, in my view.
I would be much more comfortable if a senator's term were 10 or 12 years. I think that 8 years is marginal. It is not an easy decision. The Supreme Court would ask whether senators were independent enough for it to be concluded that the fundamental characteristics of the Senate have not been changed by the bill.
But a non-renewable term of eight years still allows quite a significant degree of independence. Take the example of the Conseil constitutionnel in France. It is a partly judicial, partly political body whose members are appointed for a non-renewable nine-year term. They are considered independent.