The Harper government plans to ask the Supreme Court to vet its controversial Senate reform plans in the face of opposition from provincial governments and some of its own caucus members, sources said.
The Supreme Court reference, expected to be formally announced in the fall, would cause another round of delays in the passage of Prime Minister Stephen Harper's Bill C-7. Since 2006, the Conservative government has called for all new senators to be selected through provincial elections and to serve under a fixed term, with the latest version of the legislation proposing a nine-year mandate.
However, the proposed reforms have made little headway in both minority and majority Parliaments, where they have faced opposition from the Liberal Party and the NDP. In addition, Ottawa is aware it will likely face a constitutional challenge from one or more of the provinces if its plans go through Parliament without negotiations.
The Quebec government called on the province's court of appeal to rule on C-7's constitutionality last May, although the matter has yet to be heard. In that context, sources said the government intends to refer its unilateral reform plans to the Supreme Court as a pre-emptive move against an eventual challenge.
Conservative Senator Bert Brown, who was selected after an election in Alberta, said he is aware of the possibility of a Supreme Court reference and that he backs the idea. He said he believes the proposed provincial elections will survive the challenge, but added he is "not so positive" about the constitutionality of unilateral term limits.
"If the government thinks that its legislation could be challenged, then yes, it would be a useful thing to ask the Supreme Court for its opinion," Senator Brown said in an interview.
A Supreme Court reference is a risky strategy that has already backfired for the federal government. Last year, the country's nine top judges ruled unanimously that Ottawa's plans to create a new national securities regulator were unconstitutional.
Still, experts said they feel it is appropriate to check on the constitutionality of the Senate reforms before they are put into place, instead of passing the legislation and then letting a province go to its court of appeal to challenge their validity.
"It is a wise choice to go to the courts at the start of the process," said Benoît Pelletier, a professor of law at the University of Ottawa and a former Liberal minister of intergovernmental affairs in Quebec City.
Given Quebec's opposition to the proposals, Mr. Pelletier said there is "no doubt that the courts will have their say on the file" in the future.
Mr. Harper first went to a Senate committee in 2006 to present his proposed reforms to the Senate. Leading a minority government at the time, Mr. Harper defended his incremental approach to reforming the Senate at the expense of a full Triple-E (elected, equal and effective) constitutional reform.
"I don't see a comprehensive reform that is today achievable, except perhaps one type of comprehensive reform, and that would be abolition," Mr. Harper told senators. "For that reason, I would urge all senators on this committee to conclude that step-by-step reform is the preferable way to proceed."
However, Mr. Harper has not managed to push through the reforms even though he now heads a majority government. Sources have told The Globe and Mail that a number of Conservative senators, including some of those appointed by Mr. Harper himself, object to the nine-year term limit.
Mr. Harper had pledged in opposition that he would not appoint unelected senators to the Red Chamber. However, he has named 51 senators since coming to power in 2006, gaining a comfortable majority in the unelected legislative chamber. The 105-seat Senate now has 62 Conservatives, 40 Liberals, one Progressive Conservative and two independents.
With reports from John Ibbitson