Canada's top court will hear arguments on reforming the Senate without a full slate of judges from Quebec, a rare scenario for a case that could have significant national implications.
The Senate reform hearings are scheduled to begin Tuesday, less than a week after senators voted to suspend three of their colleagues without pay over allegations that they made improper expense claims. The controversy over their expenses has drawn unprecedented attention to the Red Chamber and contributed to growing calls for its abolition.
The Supreme Court will consider a series of questions from the federal government next week, including the constitutional implications of Senate elections, fixed terms for senators, and the abolition of the institution. But it will do so with only two of the three judges that are normally appointed from Quebec, raising questions about how representative the court's decision will be.
Justice Marc Nadon was appointed to fill the third Quebec seat earlier this year, but has stepped aside as he waits for his colleagues to decide whether he qualifies for the job. It is unclear if a Quebec judge can be appointed to the Supreme Court from the Federal Court of Appeal.
"Obviously this is the kind of issue where it would matter most to people to have the three Quebec judges present," McGill University law professor Robert Leckey said. Reading between the lines of some previous federalism cases, Prof. Leckey said he sensed a "Quebec voice" attentive to provincial interests. "It's clearly a disadvantage to be missing a Quebec member."
Having eight judges hear a reference case also raises a problem of what to do in the event of a tie. Normally, the party that appeals a lower-court ruling needs to obtain a majority, to win the case. "In a reference, we don't have any rules for what happens when there are four judges on one side and four on the other side," McGill University law professor Fabien Gélinas said.
However, there is a precedent for looking at a Senate case with only eight judges. There were just two Quebec judges, and an eight-member bench, the last time the Supreme Court decided a Senate reference case, in 1979. The ruling did not explain the absence of the third Quebec judge.
The challenge to Justice Nadon's appointment has created another issue, as well. The court will hear a reference case on the legality of his appointment in January. Adam Dodek, a law professor at the University of Ottawa, said the decision to give high priority to that case could delay an eventual ruling on Senate reform – which is expected some time next year.
The Senate expenses controversy has become a political liability for Prime Minister Stephen Harper, who has long said he wants to reform the Senate, but has found himself on the defensive amid revelations that his former chief of staff gave Senator Mike Duffy a $90,000 cheque to repay questionable housing expenses.
In an effort to quell public anger on the issue, Mr. Harper advocated harsh sanctions against Pamela Wallin, Patrick Brazeau and Mr. Duffy, all senators he appointed to the Red Chamber and who are now under police investigation in connection with their expense claims.
On Wednesday, the Saskatchewan government introduced a motion calling for the Senate to be abolished, a symbolic gesture that nonetheless makes the province's position clear as the federal government considers how to proceed with possible reform.
Saskatchewan also repealed a law that would have allowed the province to bring forward Senate candidates for the federal government's consideration. Premier Brad Wall said Wednesday that he no longer believes meaningful reform will take place and doesn't want to lend any more legitimacy to the Red Chamber by supporting Senate elections in Saskatchewan.