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The Senate – An EssentialHouse of Parliament http://www.revparl.ca/37/1/37n1e_14_kinsella.pdf
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Ottawa cannot act alone to reform the Senate, limit terms or appoint only elected senators, and must have the consent of seven provinces with half the country’s population, the Supreme Court of Canada ruled Friday.
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EVERT-JAN DANIELS / AFP/GETTY IMAGES file photo
Prime Minister Stephen Harper has been an advocate of Senate reform since his days as a young Reform party MP.
By:Tonda MacCharlesOttawa Bureau reporter, Published on Fri Apr 25 2014
OTTAWA — Ottawa cannot act alone to reform the Senate, limit terms or appoint only elected senators, and must have the consent of seven provinces with half the country’s population, the Supreme Court of Canada ruled Friday.
Abolition of the Senate altogether can only be done with the unanimous consent of the federal Parliament and all provinces, the country’s top court concluded.
In a landmark defeat for Prime Minister Stephen Harper that could yet set the stage for a referendum by a government frustrated at its failure to unilaterally legislate Senate reform, the high court dismissed nearly every single argument brought before it by federal lawyers.
A referendum is seen by some within the Conservative government as a potential political hammer to pressure reluctant provinces to go along with Senate reform. Maxime Bernier, a Conservative cabinet minister from Quebec, said Friday the court decision means a referendum is the only way to go.
The high court decision was a unanimous 8-0 judgment. In a clear sign of the strong judicial consensus, the 52-page ruling was signed by “The Court” as a whole, not penned by any one judge.
Hours after the ruling Prime Minister Stephen Harper in brief comments at Kitchener said the result is no change to the Senate will happen anytime soon.
“The Supreme Court of Canada essentially said today that for any important Senate reform of any kind, as well as abolition, these are only decisions the provinces can take.
“We know that there is no consensus among the provinces on reform, no consensus on abolition, and no desire of anyone to reopen the constitution and have a bunch of constitutional negotiations. So essentially this is a decision for the status quo, a status quo that is supported by virtually no Canadian.”
“So look, I think that given that the Supreme Court has said we’re essentially stuck with the status quo for the time being and that significant reform and abolition are off the table I think it’s a decision I’m disappointed with but I think it’s a decision that the vast majority of Canadians will be very disappointed with, but obviously we will respect that decision.”
The high court agreed with the arguments of most provinces and the Quebec Court of Appeal, that Senate reform as proposed by Harper amounts to fundamental constitutional change to a key federal institution, and would alter the way other constitutional changes are supposed to proceed.
It found that the red chamber to which senators are now appointed at the pleasure of a prime minister and hold a seat until mandatory retirement at age 75 was intended to represent regional interests and to act as a legislative check on the executive.
The court said the Senate is a “foundational political institution” and its design as an unelected body was “not an accident of history.”
Ontario Premier Kathleen Wynne was pleased with the ruling, despite the fact that her lawyers had intervened to support the federal government’s ability to set term limits as long as they were long enough to ensure independence.
Wynne suggested her government would not be averse to constitutional talks.
“Ontario is ready to participate if the federal government decides to lead collaborative pan-Canadian discussions about Senate reform,” Wynne said in a written statement.
Quebec’s new Liberal government hailed the court ruling as “historic” and said it affirms the “equal” voice of all provincial partners in the federation.
Justice Minister Stéphanie Vallée said Quebec would be at any table if the federal government opened talks, but said the court’s ruling shows “it's not up to the federal government to dictate reform,” rather that change must be done “in collaboration.”
P.E.I. Premier Robert Ghiz said the decision gives provinces “more ammunition” when it comes to resisting unilateral changes imposed by the federal government.
Ghiz said while it’s not a priority, he supports an elected Senate, and the court gave Ottawa a road map on how to proceed if it really wants to make change.
The judges laid out the history of the Senate, and said it was not meant to have the democratic legitimacy to consistently block the will of the elected chamber in the Commons.
Any move to limit Senate terms or to require senators stand for election is a big change in Canada’s overall legal framework, makes senators less independent, more beholden to a prime minister or an electorate, could potentially upset the balance of democratic power in Parliament and affect the way other constitutional changes are made, the court found.
That’s because the Senate has the power to delay and even veto other constitutional amendments through withholding consent, so that power — entrenched in the Constitution’s prescription for how to change the document — can only be eliminated with the substantial consent of provincial legislatures, the court ruled.
Term limits, even lengthy ones, provide “a weaker security of tenure” and “offer a lesser degree of protection from the potential consequences of freely speaking one’s mind on the legislative proposals of the House of Commons.”
And an elected Senate would overturn the role of the Senate as a “complementary legislative body, rather than a perennial rival of the House of Commons in the legislative process,” the court ruled.
The court allowed only one argument made by the federal government: that Ottawa could unilaterally remove the requirement that senators hold $4,000 worth of property in the province of their appointment, but the Supreme Court said even repealing that requirement would in the case of Quebec senators, require Quebec provincial assent because that province had a special arrangement for Senate representation at Confederation.
The high court agreed with most provinces who argued the Senate as it is today is a part of the original compromise struck between the federal government and the provinces at Confederation in 1867 and entrenched in 1982.
It said past and modern constitutional framers meant to ensure that the country’s law-making framework could not be easily changed.
Harper, an advocate of Senate reform since his days as a young Reform party MP, had argued the Conservative government’s plans didn’t amount to a constitutional change that required provincial consent.
The federal government argued as prime minister he would still retain the power to reject even an elected candidate for the Senate. Harper wants term limits as a means to bring more accountability to a cushy seat held by too many who feel entitled for too long.
The court dismissed almost all the federal arguments as “narrow” and “textual.”
It said the Canadian Constitution Act of 1982 set out clear rules for making changes to the Senate that reflect “the political consensus that the provinces must have a say in constitutional changes that engage their interests.”
“Changes that engage the interests of the provinces in the Senate as an institution forming an integral part of the federal system can only be achieved under” the requirement for substantial provincial consent — in other words, seven provinces representing at least half of Canada’s population.
The ruling is a blow to the New Democrats’ campaign to abolish the Senate. In the wake of a Senate spending scandal, the NDP has tried to capitalize on public backlash against the red chamber with a campaign to get rid of the Senate altogether.
NDP MP Craig Scott said if the Conservatives had been serious about reform, they should have sought the court’s opinion “ages ago.”
The fact they didn’t, despite questions whether it was constitutional, is proof that the government’s reform scheme wasn’t credible, he said in an interview Friday.
“If they were interested in this, they would have done everything possible,” Scott said.
Scott conceded that the ruling also confirms that the NDP’s own demands to abolish the Senate will be “very difficult.”
“This will not be an easy process, if it were to occur, and therefore serious reforms inside the Parliament to the Senate have to occur,” said Scott, the party’s critic for democratic and parliamentary reform.
“There’s a series of ways that you’ll be hearing from the NDP to make the Senate a more accountable institution without changing the Constitution as an step to seeing whether this goal of abolition remains possible,” Scott said.
Liberal MP Stephane Dion said the ruling should jar the Conservatives to the reality that they “cannot unilaterally change the character of the Senate. It’s not constitutional . . . it’s not respecting the federation.”
He said that opening the Constitution to make the desired reforms would inevitably invite protracted negotiation between Ottawa and the provinces on issues that go beyond the Senate.
And he saw little merit in holding a referendum on Senate reform at a time when the economy and job creation should be a priority for the government.
“Do Canadians really want a referendum?” said Dion.
“Do we really want this kind of debate while the economy is still shaky?”
He said the Senate can be improved within the existing constitutional framework by making it less partisan, more independent with senators selected in a process that puts less emphasis on party allegiances.
The court’s ruling is not just a road map for how any federal government must proceed with Senate reform, but how Ottawa and the provinces must work together on any constitutional amendments, as it sets out how the constitutional amending formula is to be interpreted.
It’s the second major court defeat of the government’s plans, and upholds the thrust of another high court ruling on Senate reform in 1980 — before the 1982 Constitution Act was patriated along with clearer rules for making amendments to key institutions and the constitution itself.
Quebec’s top court, the Quebec Court of Appeal, ruled last year that Parliament couldn’t unilaterally impose term limits or consultative elections but needed substantial provincial consent representing half the population, while abolition would require unanimous consent.
The ruling comes in the form of a series of answers to questions posed in a reference to the court by Harper’s government.
After three bills met with loud provincial opposition and failed to move through Parliament, Harper asked the top court to rule whether Ottawa can act alone to reform the troublesome Senate, or if doing so changes an aspect of the country’s constitutional framework and requires the approval of provinces, and if so, how many is enough?
When the case was argued last November, the best the Conservative government could do was muster the support of two or three provinces for most of his proposals.
Ontario and Saskatchewan agreed the federal government could unilaterally set limits on Senate tenure as long as a term was nine or 10 years or more — the equivalent of more than two election cycles — to ensure independence from an appointing prime minister.
Only two — Alberta and Saskatchewan — agreed Harper alone could legislate a framework for “consultative, non-binding” Senate elections; B.C. said it would require the approval of seven provinces and half the population.
But others argued such a substantial change needs nothing less than unanimity.
And Alberta, Saskatchewan and B.C. were the only three to back Harper’s argument that Senate abolition would not require unanimous consent, but could use the “general amending formula” for constitutional change that needs seven provinces with 50 per cent of the population.
Friday’s decision, coming less than six months after the judges heard the case, is an unusually quick ruling.
It also comes four weeks after the Supreme Court of Canada decided in another reference case that the prime minister could not make unilateral changes to the composition of the high court itself, that changes to fundamental federal institutions like the Supreme Court require the unanimous consent of the provinces.
The Supreme Court of Canada says the federal government does not have the power to enact most of the changes it has proposed for the Senate without the support of the provinces.
In a unanimous decision released Friday, eight judges of the top court concluded that implementing fixed terms for senators or provincial elections for Senate candidates would require the consent of seven provinces representing half the population.
The government had asked whether it could legislate these changes on its own.
'The desirability of these changes is not a question for the court; it is an issue for Canadians and their legislatures.'- Supreme Court of Canada decision on proposed Senate changes
On the key question of how the Senate could be abolished, the court said the consent of all the provinces would be necessary.
The only reform the government can make unilaterally, according to the court, is to eliminate the archaic requirement that senators must own at least $4,000 worth of property in the province they represent.
Prime Minister Stephen Harper, speaking at an event in Kitchener, Ont., said the ruling was a "decision for the status quo," a status quo that "is supported by virtually no Canadian."
"The Supreme Court today essentially said that for any important Senate reform of any kind, as well as abolition, these are (steps) only the provinces can take.
We know that there is no consensus among the provinces on reform, no consensus on abolition, and no desire of anyone to re-open the constitution and have a bunch of constitutional negotiations,"
Harper said before a question-and-answer session with a business group.
"I think that given that the Supreme Court has said we're essentially stuck with the status quo for the time being and that significant reform and abolition are off the table, ... it's a decision that I'm disappointed with, I think it's a decision that the vast majority of Canadians will be very disappointed with, but obviously we will respect that decision " he said.
The court made it clear in its ruling that it is merely providing a legal framework for implementing specific changes to the Senate and that is has no opinion as to the merit of the proposals.
“The desirability of these changes is not a question for the court; it is an issue for Canadians and their legislatures,” the judges said in a 59-page decision.
The decision marks the first time the highest court has taken a comprehensive look at the amending formula set out in the Constitution Act of 1982.
The decision is one that profoundly impacts the nature of the federation of Canada.
Elected senators
On the matter of consultative elections for senators, the court said such a move would alter the "architecture" of the constitution of Canada, and would "modify the Senate's role within our constitutional structure as a complementary legislative body of sober second thought."
The federal government had asked if the prime minister, at his discretion, could suggest names to the Governor General chosen from candidates who win provincial elections for a Senate seat.
But the court said the Constitution requires a lower elected and upper appointed legislative chamber, and that the contract between the two is "not an accident of history."
Executive appointment of senators, rather than election, was deliberately chosen by the framers of the Constitution Act to allow the Senate "to play a specific role of a complementary legislative body."
Senator Marjory LeBreton places the Senate pin on Bert Brown, as Prime Minister Stephen Harper looks on, during Brown's swearing-in ceremony in 2007.
Brown was the first elected senator named by Harper and retired from the Senate last year. (Chris Wattie/Reuters)
An elected Senate, the court said, would be a rival to the House of Commons and would give "democratic legitimacy to systemically block the House of Commons."
The government has argued the prime minister would retain the ability to ignore senatorial elections.
"We cannot accept this argument," the court said. "The purpose of the bill is clear: to bring about a Senate with a popular mandate."
Senators have already been elected in Alberta, which has legislation mandating elections, and the prime minister has recommended some of them for appointment to the Senate.
The court had no comment on the legitimacy of the several Alberta senators currently sitting in the upper chamber.
Fixed terms and property ownership
The court found the proposal of term limits or renewable terms for senators to be a profound change that requires the sign-off of most of the provinces.
"Security of tenure," the court said "is intended to allow senators to function with independence," and fixed terms would affect the Senate's fundamental role and nature.
But the court did agree that a senator does not require $4,000 worth of property to remain independent, nor does he or she need to show $4,000 of personal net worth as the rules currently mandate.
This is one change Parliament could unilaterally put in place, except in the case of Senate seats in Quebec, where consent would be needed because of a historical constitutional arrangement with that province.
High bar for abolition
The court found that the Senate plays a crucial role in any constitutional amendment by its ability to delay a change proposed by the House of Commons.
The very functioning of the constitutional amending formula would be at stake if the Senate were to disappear, said the court, concluding that all the provinces — not just seven of them — would have to agree with the federal government on a decision to eliminate the Senate.
The consent of the territories is not necessary in any amendment.
The court's decision Friday is not a judgment, but it is a pronouncement on the constitutional validity of the changes the government proposed, and a road map for the role of the provinces and the Senate itself have in any reforms to the upper house.
Liberals suggest eviction
Liberal MP Stéphane Dion, speaking to reporters in the Supreme Court foyer, said the only realistic plan for Senate reform is for Harper to follow in Liberal Leader Justin Trudeau's footsteps and evict his senators from caucus.
All Senators would then be more independent and less partisan, Dion said.
Harper has said many times that if the Senate can't be reformed, the government would abolish it, and NDP Leader Tom Mulcair has embraced the longstanding NDP policy of abolition.
Justices of the Supreme Court enter the Senate for last fall's speech from the throne.
The justices said in a unanimous opinion Friday that the federal government can not unilaterally reform or abolish the Senate. (The Canadian Press)
Asked if he thought Harper or Mulcair would push for a referendum on abolition, Dion replied that all a referendum would achieve is an expression about how people feel about the Senate.
The constitution would still have to be opened up, he said, causing a stampede of provincial premiers lobbying for their own agendas.
"The premier of Quebec has been very clear on that, and I'm sure he's not alone," Dion said. Quebec Premier Philippe Couillard has suggested Quebec should insist on the entrenchment of "distinct society" recognition in a constitutional amendment.
Harper had asked the court last fall to advise the government on four questions.
The first three questions inquired whether Parliament, on its own, can make changes to senators' terms, qualifications and method of selection:
Can senators be appointed for terms of 8, 9 or 10 years, or for the lives of a couple of Parliament sessions?
Can senators be chosen by consultations with the provinces in the form of provincial elections, as has happened in Alberta?
Can the archaic requirement of a senator owning at least $4,000 worth of property in his or her province be eliminated?
The final question was about the ability to abolish the Senate, a prospect that looks exceedingly unlikely given Friday's decision from the court.
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