Senate of Canada v. Supreme Court of Canada

Since taking office in 2006, the Harper government has repeatedly introduced (though not seriously advanced) legislation that, if passed and if constitutional, would: (1) reduce the term of senators from age 75 to a nine year, non-renewable term; and (2) authorize provinces to hold senate ‘consultative’ elections.

With the Conservatives obtaining a majority of seats in both chambers of Parliament in 2011, the possibility that these changes might become law convinced the Government of Quebec to take legal action.

An appointed Senate where Quebec would have an equal number of seats to Ontario, the Maritimes and, eventually, the populated west was a part of the social contract that the Fathers of Confederation agreed to and was entrenched in the Canadian Constitution (24 seats for each region). Therefore it should not have come as a surprise to the federal government that Quebec would refer the matter to the Quebec Court of Appeal. [Provinces can refer constitutional questions to their highest court, just as the federal government can refer a matter to the Supreme Court of Canada.]

On April 30, 2012, the Attorney General of Quebec filed a reference which asks for a ruling on whether the bill currently before Parliament, Bill C-7, An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits, is constitutional.

In support of this challenge, the Government of Quebec commissioned ‘expert opinions’ from myself, Andrew Heard (Simon Fraser University), Don Desserud (University of Prince Edward Island) and David E. Smith (University of Regina). Each of our opinions is based on previously published research, though specific questions that might inform the question of constitutionality were posed of each of us. For example, the question asked of me was:

In order to inform the Court of Appeal on key aspects of this reference, your expertise is requested to assess:

1) From a comparative perspective based on direct electoral process, the effects of the consultative electoral mechanism provided for in Bill C-7.

2) The evidence from Canada, recent or from pre-/post-Confederation provinces, of the consequences of introducing electoral elements into upper chambers.

3) The effects of this consultative electoral mechanism on the institutional dynamics in the federal Parliament.

In response to that legal challenge, the federal government referred the question of Senate ‘reform’ to the Supreme Court of Canada. It then filed a motion asking the Quebec Court of Appeal to dismiss its case (which it refused), filed a motion asking the Supreme Court to deal with the reference in an expedited fashion (which it agreed) and Quebec, in turn, filed a motion asking the Quebec Court of Appeal to expedite its case before the Supreme Court rules (which it agreed).

The federal government motions and Quebec’s counter motions reflect lessons learned from the Quebec v. Canada legal battle of 2011, when the federal government introduced legislation to establish a Canada-wide securities regulator. Quebec referred that question to the Court of Appeal of Quebec which ruled that it was unconstitutional (only provinces can regulate the exchange of securities). The federal government then took the matter to the Supreme Court of Canada which ruled the same, basing its decision on the earlier Quebec Court of Appeal ruling.

While the federal government appears not to have been successful in getting the Supreme Court to pre-empt the Quebec Court of Appeal case, it has taken another lesson from the securities regulator case and chosen not to ask the Supreme Court the same question, as will be ruled on by Quebec’s high court. The federal government is asking the Supreme Court for guidance on a range of issues, from eliminating the requirement that a Senator have a total net worth of at least $4,000 to what would be required to abolish the Senate altogether.The legal game plan, to use a hockey metaphor, is to get the referees to put the centre line further down the ice by making the federal and provincial nets appear wider apart.

A strict reading of the Constitution would be that: abolition should require the unanimous consent of the provinces; that transition to an elected Senate should require a constitutional amendment agreed to by seven large provinces where together at least 50 per cent of Canada’s population lives [and, unless the federal government circumvents federal though not constitutional law, must include Quebec, Ontario and British Columbia]; and that the net worth and property ownership requirements could be eliminated by Parliament alone as long as the residency requirements remain.

But courts do not consider questions such as these in a void. In addition to the legal manoeuvering highlighted above, the societal context will come into play. In the past, the federal government has been known to play up a national crisis in order to obtain legislative jurisdiction in what was previously exclusive provincial jurisdiction (this is what happened surrounding the Canada Health Act).

The current Senate expense and residency scandal that has been dominating the news for the past few months is creating just such a national crisis.

Only in a Jeffrey Archer novel would a Senate committee investigation of four members of the upper chamber, controlled by the government’s senior senators and meeting in secret, be leaked to the press with the Machiavellian purpose of creating a scandal to bring about the abolition of that chamber of Parliament. Archer would probably test the limits of credulity by having his calculating prime minister do in his own chief of staff after talking him into making a secret $90,000 payment to one of the accused. A small price to pay, Lord Archer (a member of just such an upper chamber) would tell us, to eliminate the last check on the unbridled power of the prime minister.

But Archer is a fiction writer, and no one on this side of the Atlantic could ever conceive of a Canadian prime minister contriving such a scandal. That such a scandal has unfolded is simply advantageous for the prime minister. In its wake, three provinces are now calling for the abolition of the upper chamber; and other provinces are planning to take Alberta’s lead and hold elections for their Senators (all provinces where a right of centre party is in power provincially and likely to win all the senate seats in such province-wide elections).

And it is in the midst of this scandal that the Supreme Court of Canada will deliberate on the future of one of the two chambers of the federal Parliament – the chamber without which, as Ontario’s George Brown pointed out during the Parliamentary debates of 1965, Confederation would not “have advanced another step.”

Prof. Bruce M. Hicks is a SSHRC Fellow at Carleton’s Bell Chair for the Study of Canadian Parliamentary Democracy in Carleton’s Political Science Department.

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