The Conservative government is right to face the most important hurdle to Senate reform by referring its bill on that subject to the Supreme Court of Canada, as was reported on Monday. The principal obstacles to the passage of Bill C-7 – which has been patiently waiting for second reading since June, 2011 – lie not in the House of Commons or the Senate itself, but in the interests of at least one or two provincial governments and in the interpretation of the Constitution Act, 1867.
Already, in May, Quebec referred the bill to its Court of Appeal. The federal government is wise to move this matter forward by taking it to the court of last resort in Ottawa, rather than waiting for what happens in Quebec City, and then appealing the decision there, if need be, to the Supreme Court.
In June, 2007, the Liberals still had a majority in the Senate – about as large as the Conservatives’ majority there today. Then, the Senate’s standing committee on legal and constitutional affairs presented a report on Bill S-4 (a precursor to Bill C-7), which began with a quotation from the founder of this newspaper, George Brown.
In 1865, Brown worried about a proposal for nine-year Senate terms, which he thought would make senators too beholden to the cabinet and to the party in power. A similar concern arises today with the rigid nine-year term limits in Bill C-7, which would tend to cause large swings in Senate membership, back and forth, but toward whichever party is in power.
In 2007, the committee wanted first to amend the bill, and then to have it referred to the Supreme Court. That might indeed have brought an elected Senate sooner. But now, the court will be able to canvass the full range of the relevant constitutional issues, without amendments.
On the face of it, provincial opting-in for senatorial elections is likely to pass muster in this day and age, while the inability of the voters to re-elect a senator might well not.
The referral of Bill C-7 to the Supreme Court is a welcome opportunity to think through the second chamber’s place in the Canadian Constitution.
Editor's note: An earlier version of this editorial incorrectly stated that the Conservative government's Senate reform bill would set a term limit of eight years. This version has been corrected.
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