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New submissions ramp up provincial opposition to Ottawa’s Senate plans

The Senate chamber in Ottawa.

DAVE CHAN/The Globe and Mail

Ontario is open to allowing the federal government to unilaterally set term limits for senators, but Prime Minister Stephen Harper's Senate reform proposals are still meeting with broad provincial and territorial opposition.

The federal government has asked the Supreme Court for guidance on how it could change the beleaguered Senate or do away with it altogether. Ottawa argues certain changes can be made unilaterally. However, many provinces are intervening in the case and filing arguments this week, and early signs indicate the provinces don't want Mr. Harper's government acting alone.

Nunavut and Newfoundland and Labrador filed their arguments, known as factums, on Thursday. They broadly insist that major changes to the Senate require constitutional amendments and, as such, provincial input. The federal government believes it has the power to unilaterally make some changes, including opening the door to electing Senate nominees and setting term limits for senators, who currently can serve continuously until they're 75. But Nunavut and Newfoundland and Labrador argue both those changes would require provincial input.

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The two latest submissions also argue Senate abolition would require the unanimous consent of provinces – a lofty feat. "Abolition of the Senate would be a profound change to Canada's constitutional structure," Newfoundland and Labrador's submission says.

Manitoba filed its factum this week, and also argued provincial support is required for major changes. The federal factum was filed last month. The reference case is meant to clarify the murky legal path for Senate reform.

It will be up to the Supreme Court to rule on what powers Ottawa has, and what changes would require provincial support. Of the latter group, some changes may ultimately require unanimous consent, while others may need the support of only seven provinces comprising at least 50 per cent of the population, known as the 7/50 formula.

Ontario, however, has left the door open to some unilateral change. Its factum was set to be filed Friday, but a government source said Ontario will indicate it would not fight federally imposed term limits on senators so long as the limits were at least nine years. A shorter term limit could overtly politicize a senator, Ontario is expected to argue, so the province believes shorter term limits would, as such, require provincial consent.

Ontario's position will be critical should the Supreme Court ever rule that certain changes require support under the 7/50 formula. In such a case, the position of Ontario – Canada's most populous province – would be a linchpin. The province is also expected to argue that provincial input is required on most other changes.

The provinces also are not pushing back on the federal government's position that it could unilaterally remove what it calls an "archaic" requirement – that a senator must own $4,000 of land in the province he or she represents. Ontario and Manitoba agreed the federal government could unilaterally make a change, while Nunavut and Newfoundland and Labrador abstained from taking a position.

Nunavut's factum calls for a seat at the table, as territorial input isn't required in constitutional amendments. Nunavut argues it's a matter of minority rights. Excluding territories would "risk the legitimacy of such changes," Nunavut argues.

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Some other provinces are expected to file arguments by Friday's deadline. British Columbia received an extension, and has until Sept. 6 to submit its factum.

Liberal Senator Serge Joyal, a lawyer, also submitted a factum on Thursday. The Supreme Court declined to release it before the end of business hours, saying it had not been reviewed. Mr. Joyal's office also declined to release it.

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