The Canadian government will be the underdog as it seeks permission from the Supreme Court of Canada to make changes to the Senate without provincial approval. It is pulling out all the legal stops, even citing same-sex marriage as evidence that the meaning of the Canadian Constitution should change with the times. Here is a reader’s guide to the three days of legal hearings that begin on Tuesday.
WHAT THE HARPER GOVERNMENT WANTS TO DO
Reform the Senate by setting term limits of nine years, instituting non-binding elections and ending the requirement for senators to own property worth at least $4,000.
Pierre Poilievre, the federal minister of state for democratic reform, said Tuesday that the government is looking for a “legal instruction manual” from the Supreme Court to help it determine how the Red Chamber can be changed. “The Senate must change or vanish. The status quo is no longer acceptable,” he said Tuesday.
THE MAIN QUESTION FOR THE SUPREME COURT
Can the government unilaterally set new term limits and create a system of elections?
WHY IT MATTERS
Reform may be essential to making the Senate more relevant and democratic. Also, how Canada develops and alters its basic institutions is at the heart of the compromise between English Protestants and French Catholics that created the country in 1867, and helps define how (and whether) that compromise lasts.
“Much more than the Senate is at stake,” McGill University law professor Robert Leckey says. “It touches the terms for altering the Constitution put into place in our lifetimes, a process in which Quebec didn’t take part.”
WHY OTTAWA IS THE UNDERDOG
Five judges from the Quebec Court of Appeal ruled unanimously last month that the changes require the approval of at least two-thirds of provinces with more than 50 per cent of the population. As the Golden Globes are to the Oscars, the Quebec appeal court’s ruling is to the Supreme Court – a foreshadowing, says political scientist Christopher Manfredi of McGill University.
Section 42 of the Constitution Act, 1982, sets out explicitly that the government cannot act alone to change the method of selecting senators.
The Supreme Court said in a 1979 Senate reference case that altering the unelected status of senators would “involve a radical change in the nature of one of the component parts of Parliament,” and would therefore require provincial support.
“There is no change to the manner in which persons are summoned to the senate” because the Governor-General would still make the appointment on the request of the prime minister, who would retain his discretion, no matter what the outcome of senatorial elections, the government says in a court filing.
The proposal is not for direct elections nor is it a “Trojan horse” for direct elections, but “consultative” elections, a means of taking advice from the people before nominating senators, and thus within Parliament’s general power to legislate for “peace, order and good government”
Nine-year term limits would not be terribly different from what happens in practice: Since 1965, the average number of years of Senate service has been 11.3 years; the median is 9.8 years
Parliament has the power to limit terms of current senators to “remedy a perceived mischief … long-standing concerns that undermine the Senate’s legitimacy as a democratic institution.”
SAME-SEX MARRIAGE’S ROLE IN THE GOVERNMENT’S CASE
In supporting abolition of the $4,000 property requirement, the government warns against slavish attention to the “original intent” of the Fathers of Confederation, which was to give wealthy people oversight of elected officials.
The Supreme Court rejected a similar approach in the 2004 same-sex reference case, “where the court held that the understanding of ‘marriage’ that prevailed in 1867 should not be determinative of our present day understanding,” the government says in its court filing. It is an unusual position for the Harper government to take, considering that Stephen Harper once attacked the Supreme Court for “reading in” a protection of gay rights to the equality rights section of the Canadian Charter of Rights and Freedoms.
THE VIEW OF ONE ESTIMABLE POLITICAL SCIENTIST
“It’s almost a no-brainer” that the government will lose, says Peter Russell of Toronto. The government is proposing to change the method of selecting senators, and its argument that it would not be doing so relies on a literalist and simple-minded interpretation of the constitution, he says. “Judges moved beyond that decades ago. You can’t just say, ‘Oh yeah, but it’s not binding.’ It makes our judges look like potential idiots. The Governor-General never goes out and appoints his or her own senators; the prime minister does it, and that is as strong a constitutional convention as you can get.”
WHAT THE PROVINCES SAY
Most provinces believe the Senate was a key to the creation of Canada by being an independent upper house that could speak for regional and provincial interests. “This was the bargain struck at Confederation,” British Columbia says in a court filing in the case. Any fundamental change, most provinces say, requires approval of at least seven provinces with 50 per cent of the population. Alberta, which has held four senatorial elections since 1989, says the government needs provincial support to change term limits, but can act alone to create consultative elections. Saskatchewan, Manitoba and Nova Scotia have called for abolition of the Senate.
WHY THE COURT WILL HEAR THE CASE WITH ONLY EIGHT JUDGES
Shortly after Justice Marc Nadon of Quebec was sworn in as the court’s newest member early last month, Toronto lawyer Rocco Galati challenged the appointment in court, and Justice Nadon stepped aside temporarily. Quebec also argues the appointment was not legal. The Supreme Court will consider that matter in a separate reference case in January.
With files from Kim Mackrael