The Senate Goes to the Supreme Court

The Supreme Court of Canada begins three days of hearings today into the federal government's proposed amendments to the election and term limits of Senators. The federal government has, since it was first elected, attempted on numerous occasions to pass legislation to make the Senate elected and, arguably, more effective (the last of the Triple-E, equal, is seemingly left for another day).

• if a province or territory enacts legislation for the selection of Senators (not necessarily an election), the Prime Minister, in recommending Senate appointments to the Governor General, must consider names from the province's or territory's list
• newly-appointed Senators remain Senators only for nine years (term limits)

There was significant debate before the Parliamentary committees and amongst academics as to whether these reforms were constitutional. The Constitution Act, 1982, provides five procedures for amending the Constitution. The federal government argues that Parliament is entitled to amend the Constitution as it relates to the method of selection and term limits without obtaining the consent of the provinces.

On term limits, the provinces largely disagree they argue that any reform to the Senate requires approval of the federal Parliament and 2/3 of the provincial legislatures representing at least 50 percent of the population of all of the provinces (the 7/50 rule). Ontario and Saskatchewan argue that the federal Parliament can provide for term limits, provided that they are not so short that they interfere with the Senate's ability to be a place of "sober second thought" (nine years for Ontario, 10 years for Saskatchewan).

On selection, Alberta and Saskatchewan agree with the federal government. The remaining provinces argue that advisory elections (because the provinces cannot bind the Prime Minister never mind the Governor General) require an amendment under the 7/50 rule.

Against the backdrop of the suspension of Senators Wallin, Duffy and Brazeau, the more interesting issue may be the one tucked into the back of the reference: what is the procedure for abolishing the Senate? The federal government, Alberta and Saskatchewan argue that the 7/50 rule governs. The other provinces argue that all of the provinces have to unanimously agree.

Though references, especially about amending procedures under the Constitution, can be a snooze-fest, this one is likely to prove different. The Quebec Court of Appeal ruled in late October that the 7/50 rule applies to Bill C-7. Last week, Saskatchewan repealed its legislation allowing for the election for Senators and called for abolition of the Senate. PEI appears prepared to agree to Senate reform, but only in exchange for increased representation in the House of Commons. And, to add, the Supreme Court of Canada will be down a judge, with Justice Nadon sitting out pending another reference in January.

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