The Senate chamber in Ottawa.DAVE CHAN/The Globe and Mail
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On Friday, the path to Senate reform will, at least, become a little clearer – it's deadline day for provinces in the Supreme Court's examination of the Senate.
The federal government has asked the country's top court to weigh in on what exactly it would take to overhaul the presently embattled Red Chamber, or do away with it altogether. But while Prime Minister Stephen Harper's government has argued that it should be able to make some changes on its own, the provinces and terrirtories don't seem keen to let him.
Manitoba, Nunavut and Newfoundland and Labrador have all filed arguments so far that, in essence, challenge Ottawa's authority on Senate reform. The federal government, for instance, says it should be able to unilaterally impose term limits. The two provinces and one territory all disagree.
If other provinces follow suit on Friday, it sets up a length legal battle. Provinces have argued that any major changes will require a Constitutional amendment. That, in turn, requires either unanimous support or the support of seven provinces representing at least 50 per cent of the population – the 7/50 rule.
It will be up to the Supreme Court to rule on the case. After getting written arguments this week – known as factums – the court is scheduled to hear arguments beginning in November. The federal government hopes to have a ruling before next year's summer break. Ottawa's talking point in the meantime, sent by both its Minister of State for Democratic Reform and the office of none other than Mr. Harper, is: "Canadians understand that our Senate, as it stands today, must either change or, like the old upper houses of our provinces, vanish."
The federal NDP are calling for it to vanish, but not saying how they'd achieve it. It's a significant omission. The provinces are, so far, of the belief that doing away with the Senate would require unanimous provincial consent. That may seem as likely as ever, with the Senate embroiled in a series of spending controversies, including those of Patrick Brazeau, Mike Duffy, Mac Harb and Pamela Wallin. But the provinces are in no rush. This Supreme Court exercise is "not about whether an elected Senate or shortened term limits are desirable," Newfoundland and Labrador wrote (the emphasis is theirs). Rather than debating changes, provinces are preparing for a fight simply over how any changes would some day be made.
Roughly half a dozen factums are expected Friday. They include that of Ontario, which could play the role of kingmaker in any area where the so-called 7/50 rule is applied. A province with 40 per cent of the population goes a long way to achieving consent of a majority. It has already signalled it's open to giving Mr. Harper some unilateral power, specifically around term limits.
Saskatchewan and Nova Scotia are also expected to file. Both provinces' premiers have been calling for abolition. While they hope for it, Nova Scotia holds the same position as other provinces that have already filed – abolition will require unanimous consent.
That would be a steep uphill battle, because many provinces, including Ontario, prefer reform to abolition, recent scandals notwithstanding. And Quebec is avoiding the fray. The province submitted to the Supreme Court a five-volume series of legal precedent but, as of Thursday, no actual argument. Quebec has said reforming federal institutions is not a priority. And yet, without its blessing, unanimity lays out of reach.
This week, it's all arguments and opening volleys. A Supreme Court ruling next spring could lead to proposed changes while the Auditor-General continues his audit of senators' expenses, an audit expected to be complete by early 2015. Then, that fall, Canadians head to the polls.
Friday's filings will see provinces stake their ground, before the Supreme Court decides how much power they really have in the Senate debate. From there, the arguments begin. The path may soon be clearer, but there's little that's made it look any easier.