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The Globe and Mail

Supreme Court ensures Senate will remain a political tool

Lori Turnbull is an associate professor of Political Science at Dalhousie University. With Mark D. Jarvis and the late Peter Aucoin, she wrote Democratizing the Constitution: Reforming Responsible Government.

The Supreme Court of Canada has rejected Prime Minister Stephen Harper's plan to reform the Senate through a unilateral act of Parliament. If the Prime Minister wants to change the Senate, he has to go through the Constitution to do it. This means that both applying term limits to Senate appointments and holding provincial consultations to select Senators must be approved not only by Parliament but also by at least seven provinces that together represent at least half of the Canadian population. Abolition would require the consent of all ten provinces, plus the House of Commons and the Senate.

That the government would even consider making such substantial changes without consulting the provinces indicates a lack of regard not only for the Senate but for the Constitution itself, the most fundamental of our political institutions. This is worrisome. It seems that politics these days is about what governments can get away with rather than what is right, just, or even constitutional.

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That the Court rejected the proposal is no surprise, given the audacity of the idea in the first place. The Prime Minister asked the Supreme Court if he could circumvent the constitutional amending formula by reforming the Senate without seeking approval from the provinces. Of course the Court said no. But where do we go from here?

One thing is for certain: the debate on Senate reform is far from over. Too many people have a stake in it. Opposition leader Thomas Mulcair has been vocal about his preference for Senate abolition and, in the wake of the Senate expense scandal that led to three Senators' suspensions, many Canadians are anxious for meaningful reform of the Upper House. Clearly, there are some problems that need solutions.

To those who have supported his reform agenda, Prime Minister Harper could simply shrug his shoulders and say, "I tried." But that's not going to be enough. Senate reform is an issue of significant importance to the Conservative base. Given the Liberals' strength in public opinion polls since Justin Trudeau took over as leader, Harper needs to mobilize that base as much as possible for the next election.

Mr. Harper has already ruled out reforming the Senate via constitutional negotiations with the provinces. This is no surprise. The provinces are not exactly of one mind on the issue of Senate reform: some want outright abolition, some would propose appointing an equal number of Senators per province, and others might benefit from keeping things as they are. So, a "win" would be impossible for the Prime Minister unless negotiations spilled over into other policy areas in order to compensate the provinces that lost out in the Senate bargain. But then discussions would spin out of the prime minister's control, as constitutional negotiations tend to do, so this option holds little appeal.

If constitutional reform via the amending formula is not going to happen, and the Court has already said that Parliament cannot simply go it alone with a piece of legislation, then all that is left is politics. And the Harper Conservatives have been clear about one thing: nothing and no one is above the political fray. Even Elections Canada, the country's independent administrator of elections, is merely a "team" according to this government. Will the Supreme Court be painted with the same brush? Will the government undermine the authority of the Supreme Court's response this morning by labeling it as a mere "opinion" that stands in the way of the elected government's mandate to serve Canadians by bringing long-needed reform to the beleaguered, antiquated, illegitimate Senate?

An appeal to populism along these lines might make political sense for the Conservatives, especially in light of the strong support for populism among the former Reform Party contingent. But it might not hold wide appeal, given that the Supreme Court is one of Canada's most trusted institutions.

The Canadian Taxpayers' Federation has called for a referendum on abolishing the Senate. Conservative Minister Maxime Bernier is doing the same thing, which suggests that the government is hoping to build up enough public support to abolish the Senate that the provinces will feel compelled to go along with it. An important caveat: our constitution does not make provision for reform via referendum, so the effect of a referendum on Senate reform would be political rather than legal or constitutional.

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Friday's decision might have opened up more questions than answers. The hope is that any reform that might come to Canada's Upper House will stem from sober reflection and meaningful debate rather than political agenda.

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