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The Harper government recently introduced an apparently innovative bill to provide for Senate elections. But the full title of Bill C-43 speaks volumes about the tightrope walked by the government lawyers who drafted it: An Act to Provide for Consultations with Electors on their Preferences for Appointments to the Senate.

The trouble is that Parliament almost certainly lacks the constitutional power to set up direct elections for Senate vacancies. In 1978, the Supreme Court of Canada answered a set of reference questions put to it by the Trudeau government about the authority of Parliament to abolish, rename or elect the Senate. It is well worth the time to consider the ramifications of that case, as C-43 may not be constitutional because of it.

While the court refused to answer several of the questions posed in 1978, it did provide clear and unanimous guidance that Parliament could not unilaterally alter the "fundamental features or essential characteristics of the Senate."

The court examined the history of the Senate and its creation as an appointed body intended to provide independent and dispassionate review. The Supreme Court then went on to add: "To make the Senate a wholly or partially elected body would affect a fundamental feature of that body." In the minds of the Supreme Court in 1978, Parliament could not provide for direct elections to the Senate.

There is a lively debate among academics and constitutional practitioners about which aspects of this ruling have been superseded by the new constitutional amending formulas introduced in the Constitution Act, 1982. But even under the new rules, Parliament cannot make a unilateral constitutional amendment relating to the method of selecting senators; such an amendment requires the approval of at least seven of the provinces.

Most authorities would agree that Parliament can neither amend the wording of the current constitutional provisions relating to Senate appointments, nor directly contradict them.

Taking this lowest common denominator of agreement, the government lawyers have crafted a "consultation" process that neither contradicts nor purports to legally alter in any way the governor-general's power of appointing senators found in Section 24 of the Constitution Act, 1867.

Bill C-43 is devised not to set up elections, but rather a process whereby the citizens can express their preferences about whom they would like to see appointed to the Senate. The public's most preferred nominees are listed in a report delivered by the Chief Electoral Officer to the prime minister. In theory at least, the prime minister can then mull over the list and decide to recommend any of these nominees, or an entirely different set of individuals, to the governor-general. The governor-general's power of appointment and the prime minister's right of advising the governor-general are not directly touched by the provisions of Bill C-43.

Bill C-43 would undoubtedly be constitutional if that was all there is to it.

Such a delightfully minimalist approach to settling constitutional issues could put a good many lawyers out of work and dramatically reduce the load on our judges, as well. Perhaps there is much to be said for it on those grounds alone.

The constitutional authority for our legislatures to enact laws, however, cannot simply be decided by whether they directly contradict or alter the wording of existing constitutional documents. Parliament's authority is limited by much more than just the words of constitutional documents.

Just as important boundaries are to be found in the myriad decisions of our courts and in the basic principles of our constitutional system. For example, provincial governments had to restructure their family court systems, when the Supreme Court of Canada ruled that provincially appointed judges could not exercise the powers of "superior courts" to settle matters of matrimonial property — even though constitutional documents do not enumerate either the powers of superior courts or stipulate that those powers are the exclusive domain of superior courts.

The intent and purpose of Bill C-43 would have a great bearing on how judges might assess its validity. There is little doubt from many statements by the Prime Minister that he intends to fundamentally alter the character of the Senate and ensure that senators will be elected.

The deficiency that Bill C-43 is designed to remedy is quite clearly the fact that senators are appointees. The remedy is to provide democratic validation by letting the voters choose their senators.

Bill C-43 creates an electoral process very similar to the conduct of elections for MPs, although the ballots will be counted differently. It would be an election in every practical sense of the word. From a political-science perspective, an election occurs when citizens are given a meaningful opportunity to choose their representatives by ballot.

Senatorial elections disguised as consultative plebiscites are elections nevertheless, and Bill C-43 is quite likely beyond the powers of Parliament.

Andrew Heard is an associate professor of political science at Simon Fraser University.