Video: The Supreme Court weighs in on whether the Senate can be reformed or abolished. Jacques Bourbeau reports.
OTTAWA – Canada’s top court began hearing arguments Tuesday in a historic case that will determine how – or even if – the much-maligned, scandal-plagued Senate can be reformed or abolished.
And in the early going, Supreme Court justices appeared to be skeptical of the federal government’s contention that it can unilaterally reform the Senate without input from the provinces.
Prime Minister Stephen Harper’s government has asked the Supreme Court to advise whether it can proceed unilaterally to impose term limits on senators and create a process for electing them.
It has also asked the court to determine whether outright abolition of the upper chamber could be accomplished with the approval of just seven provinces, representing 50 per cent of the population.
READ MORE: Removing senators from pension plan invalidates suspension vote: lawyer
The vast majority of provinces argue that the bar should be set higher: reform should require the approval of at least seven provinces, abolition should demand unanimity.
The eight Supreme Court justices hearing the case peppered federal government lawyer Robert Frater with pointed questions, appearing dubious about his arguments.
He maintained that term limits would have no impact on the powers or fundamental character of the Senate – a crucial point since the top court ruled in 1980 that substantial provincial consent is required for any reform that changes the essential character of the upper house.
Similarly, Frater argued that creating a non-binding, “consultative” election process wouldn’t technically change the method of selection; the prime minister would continue to appoint senators, taking into consideration – but not necessarily choosing – the election winners.
Justice Marshall Rothstein noted that the provinces might “call that a constitutional work-around.”
The federal position appears to be that the method of selecting senators and the duration of their terms are “mere details,” Justice Louis LeBel suggested. When Frater demurred, LeBel shot back: “Then why should not there be some provincial input if these are not simply housekeeping details?”
Frater’s argument that creating a consultative election process for senators does not require a formal constitutional amendment to implement was greeted with incredulity by Justice Thomas Cromwell. He questioned whether the federal government would say the same about holding consultative elections for superior court judges, to which Frater said yes.
Get daily National news
“Are you seriously suggesting that running consultative elections for the appointment of a Section 96 judge would not amend the Constitution?” Cromwell said in apparent disbelief.
Justice Rosalie Abella suggested that imposing term limits on senators would affect their independence and their ability to provide sober second thought to legislation and, thus, would change the fundamental character of the Senate.
But Frater maintained a term limit of at least eight years wouldn’t appreciably shorten the amount of time senators currently serve before reaching the mandatory retirement age of 75.
As for Senate independence, he argued that was an objective “more aspirational than achieved.” Senators are political partisans and generally toe their party’s line, he noted.
On abolition, federal colleague Christopher Rupar argued that the top court didn’t require unanimous consent of the provinces to patriate the Constitution in 1982. It shouldn’t, therefore, be required for a matter of lesser import, such as abolishing the Senate.
While a number of the justices seemed dubious about the federal arguments, there was no free ride for the provinces either.
The vast majority of provinces maintain the Senate is an essential part of the bargain struck at Confederation and no significant change can, therefore, be made without substantial provincial consent.
Chief Justice Beverley McLachlin noted that the provinces have no objection to a federal proposal to unilaterally eliminate an outdated constitutional provision that requires a senator to own $4,000 worth of property in the province he or she is appointed to represent. If Ottawa can do that, she asked, why couldn’t it similarly modernize the manner in which senators are appointed?
Ontario lawyer Michel Helie argued that doing away with the property qualification isn’t a change to the essential character of the Senate, whereas federally run, consultative elections would be.
That said, Helie added a wrinkle: Ontario has no problem with provinces holding Senate elections – as Alberta has done – since the prime minister is not obligated to abide by the results. Nor would it have a problem with the prime minister taking advice on whom to appoint as long as it’s at “an informal level, a non-statutory level, something that does not create public law.”
“So, you could have in effect the exact system that’s mapped out in these (federal) proposals as long as there was nothing in writing,” observed Cromwell.
In a brief statement prior to today’s proceedings, Pierre Poilievre, minister of state for democratic reform, said change is inevitable.
“The Senate must change or vanish,” Poilievre said. “The status quo is no longer acceptable.”
He said the government is essentially asking how it can go forward on the issue.
“We look forward to receiving the court’s advice in due course so that we can finally move past opposition obstruction and enact real reform that Canadians have demanded.”
Watch: Robert Frater, Counsel for the Attorney General of Canada, outlines the basic legal questions surrounding senate reform
Comments