Friday, April 25, 2014

Supreme Court Rules Against Unilateral Senate Reform

The big news today is that the Supreme Court of Canada released its decision on the Senate Reference.  Following the Nadon Reference, it's not really that surprising that the government's position was basically crushed - they lost on every point, except that the Federal government can unilaterally remove the requirement that Senators have a networth of at least $4000.

On the question of whether or not the government can unilaterally impose term limits, the answer is no:  The 7/50 formula needs to be applied.

On the questions relating to consultative elections, the answer was the same - you can only legislate consultative elections if you modify the constitution using the 7/50 formula.

And abolition of the Senate?  It would require unanimous consent of the Provinces.

Not surprising, but there's a lot of griping among politicians and journalists.  The Prime Minister himself expressed disappointment, calling it "A decision for the status quo, supported by virtually no Canadians."  Tony Clement tweeted:  "Share @pmharper's disappointment that there's no way forward on Senate reform/abolition without provincial consensus, according to SCC /2" and "Basically we have an unreformable institution (Senate) built for another era (19th century)..."  Andrew Coyne, not exactly a Conservative-friendly journalist, made a number of critical tweets as well, including "This was the great folly of 1982: handing control of the amending formula to the provinces. The constitution is effectively encased in stone" and "Anyway, great, we get to carry on with the Senate exactly as is, that subtle example of the mystic genius of our founders."

A number of other social media remarks have centred around the near-universal discontentment with the status quo.

There are a number of things to be said about some of the commentary.  Firstly, there's little question in my mind that the SCC is right.  The Senate may well need reform, but if the choices are "Let the Federal government do it unilaterally, or make them use the 7/50 formula", it's a no-brainer.  There needs to be Provincial consultation, and while I don't disagree that the general amendment formula sets the bar high - perhaps too high - the Supreme Court didn't make up these options.

Secondly, though the 7/50 formula is difficult to engage, with a lot of political baggage, and unanimity among the Provinces is difficult to achieve, it sounds a little funny for Harper to be complaining that all Canadians want change and the Supreme Court isn't letting them have it.  If there's really unanimity among Canadians, then it really shouldn't be that difficult to get an agreement on Senate reform among the Provinces.  After all, if we all want reform, then we all get to pressure our own Provincial governments to go along with it.  (The complexity, of course, is that there's no unanimity in how to reform it, and of course some Provinces would demand other constitutional concessions, making it a massive log-rolling exercise...but this simply illustrates that there's no simple and universally-desired fix that the Federal government should be empowered to impose.)

Thirdly, it's not quite as dire as all that.  Rick Mercer put it well when he argued that the solution to the Senate problems is:  Appoint better Senators.  And Andrew Coyne illustrates a fundamental misunderstanding of our constitutional order in his tweets.  Let's step back to 1929 for a moment - another Senate reform case, in a way, in which the question was whether or not women were "persons" eligible for appointment to the Senate.  The Supreme Court of Canada said no, adopting the U.S. doctrine of interpreting the constitution with reference to the intentions of the drafters.  However, at that time, the SCC wasn't our highest court - there was an appeal to the Judicial Committee of the Privy Council in England, which reversed the decision, and famously described our constitution as a "living tree".  This allows evolution of the constitution as Canadian values change over time, and has had meaningful impact even in the relatively short life of the Charter.  So no, it's not that we've shot ourselves in the constitutional foot by making the amendment formula too hard to change, and absolutely not the case that it warrants the Supreme Court giving the Federal government carte blanche to modify the fundamental characteristics of our legislative process.

And finally, a decision otherwise, on any point other than abolition, would have been catastrophic.  As I have argued before (here and here), Senate reform must be performed wholesale, if at all.  In addition to term limits and elections, the Senate needs to have its geographic representation fixed if it is to become an effective democratic body.  To create elections and term limits without proper geographic representation would give it the semblance of legitimacy, but effectively deny the west a voice.  It's a formula for severely aggravating western alienation.

All in all, a good decision by the SCC.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

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