Provinces have staked their ground in the battle over Senate reform, with many submitting legal arguments over what it would take to change or abolish the Red Chamber.
Each factum addresses four general questions. The provinces have been mostly in line so far, joining together to push back against Ottawa’s hope of unilateral power to carry out some overhauls. But there isn’t unanimous agreement. Alberta and Saskatchewan have taken positions similar to that of the federal government, with both provinces saying, for instance, that the Senate can be abolished without unanimous provincial consent.
The Supreme Court is expected to rule next year on what it would take to make changes or kill the Senate altogether. Options including giving Ottawa certain unilateral power; requiring support of seven provinces with 50 per cent of the country’s population, known as the “7/50” rule; or requiring unanimous provincial support.
The questions and legal arguments are dense and lengthy. Here’s a paraphrased summary of where the submissions have included so far.
Question 1: Can Parliament set rules around the election of Senate nominees, thereby opening the door to giving voters a say in who becomes a senator?
The federal government argues it has unilateral power here, as do Saskatchewan and Alberta, the latter of which already selects Senate nominees to middling results. Some have ultimately been appointed, while others haven’t. Ottawa, Saskatchewan and Alberta are alone on this front, though. Quebec, Manitoba, Newfoundland and Labrador, Nunavut, Ontario, Prince Edward Island, Nova Scotia and New Brunswick all say the 7/50 rule would apply to any new rules on election of Senate nominees. In his own submission, Quebec Liberal Senator Serge Joyal said provinces must be consulted on such a change and agreed the 7/50 rule would apply.
Question 2: Can Parliament unilaterally set term limits?
Ottawa says yes, it can, while Ontario and Saskatchewan kind of agree. Ontario argues that a term limit of at least nine years could be introduced without provinces’ consent, while Saskatchewan says the same of a term limit of at least 10 years. Below those levels, both say the 7/50 rule would apply. Quebec, Manitoba, Newfoundland and Labrador, Nunavut, Alberta, Prince Edward Island, New Brunswick, Nova Scotia and Mr. Joyal all say the 7/50 rule would apply.
Question 3: Can Parliament get rid of what it calls the “archaic” rule that senators have to own $4,000 worth of property?
The federal government believes it has this power, and only Quebec disagrees – it says that existing rules for its senators have property implications, and therefore argues Quebec’s agreement is needed to make the change federally. Mr. Joyal shares that position.
Saskatchewan, Manitoba, Ontario, Prince Edward Island, Nova Scotia and New Brunswick all say the rule makes no difference and can be removed, while Newfoundland and Labrador, Nunavut, the Northwest Territories and Alberta all abstained from weighing in.
Question 4: Can the Senate be abolished with the 7/50 rule?
Ottawa, Saskatchewan and Alberta say yes, while everyone else says no. The others insist unanimous consent would be required to kill the Senate.
It would be “convenient if the Senate could be more easily abolished through the general amending formula, rather than requiring unanimity,” Manitoba writes. “Convenience, however, is not a cornerstone of a federal constitutional democracy.” The province called for unanimous consent to abolish the Red Chamber, though its NDP government favours abolition.
The NWT, meanwhile, argued that even unanimous consent is insufficient, because it doesn’t require the input of the territories. The federal government must “consult, consider and represent the interests of the citizens of the Northwest Territories with respect to this issue,” the NWT factum said. The territory abstained from weighing in on the other questions.
Mr. Joyal, too, said unanimous consent isn’t enough, as aboriginal groups would also need to be involved.
Nova Scotia, which favours abolition, was the last province expected to file its factum Friday. A government spokesperson has already said, though, that Nova Scotia believes unanimous consent is required for abolition, and that the 7/50 rule would apply to setting term limits.
B.C.’s factum is expected to be filed by Sept. 6, after the province received an extension. Only the Yukon government declined to submit an argument in the case.