Senate reform can't be done by Ottawa alone

The Supreme Court of Canada says the federal government does not have the power to enact most of the changes it has proposed for the Senate without the support of the provinces.

• Stephen Harper says Senate reform is off the table
• Five recent Supreme Court setbacks for the Harper government
• Senate reform: Reaction to Supreme Court ruling on social media

In a unanimous decision released Friday, eight judges of the top court concluded that implementing fixed terms for senators or provincial elections for Senate candidates would require the consent of seven provinces representing half the population. The government had asked whether it could legislate these changes on its own.

The desirability of these changes is not a question for the court; it is an issue for Canadians and their legislatures.- Supreme Court of Canada decision on proposed Senate changes

On the key question of how the Senate could be abolished, the court said the consent of all the provinces would be necessary.

The only reform the government can make unilaterally, according to the court, is to eliminate the archaic requirement that senators must own at least $4,000 worth of property in the province they represent.

Prime Minister Stephen Harper, speaking at an event in Kitchener, Ont., said the ruling was a "decision for the status quo," a status quo that "is supported by virtually no Canadian."

"The Supreme Court today essentially said that for any important Senate reform of any kind, as well as abolition, these are (steps) only the provinces can take. We know that there is no consensus among the provinces on reform, no consensus on abolition, and no desire of anyone to re-open the constitution and have a bunch of constitutional negotiations," Harper said before a question-and-answer session with a business group.

"I think that given that the Supreme Court has said we're essentially stuck with the status quo for the time being and that significant reform and abolition are off the table, ... it's a decision that I'm disappointed with, I think it's a decision that the vast majority of Canadians will be very disappointed with, but obviously we will respect that decision " he said.

The court made it clear in its ruling that it is merely providing a legal framework for implementing specific changes to the Senate and that is has no opinion as to the merit of the proposals.

“The desirability of these changes is not a question for the court; it is an issue for Canadians and their legislatures,” the judges said in a 59-page decision.

The decision marks the first time the highest court has taken a comprehensive look at the amending formula set out in the Constitution Act of 1982.

The decision is one that profoundly impacts the nature of the federation of Canada.

Elected senators

On the matter of consultative elections for senators, the court said such a move would alter the "architecture" of the constitution of Canada, and would "modify the Senate's role within our constitutional structure as a complementary legislative body of sober second thought."

The federal government had asked if the prime minister, at his discretion, could suggest names to the Governor General chosen from candidates who win provincial elections for a Senate seat.

But the court said the Constitution requires a lower elected and upper appointed legislative chamber, and that the contract between the two is "not an accident of history." Executive appointment of senators, rather than election, was deliberately chosen by the framers of the Constitution Act to allow the Senate "to play a specific role of a complementary legislative body."

An elected Senate, the court said, would be a rival to the House of Commons and would give "democratic legitimacy to systemically block the House of Commons."

The government has argued the prime minister would retain the ability to ignore senatorial elections.

"We cannot accept this argument," the court said. "The purpose of the bill is clear: to bring about a Senate with a popular mandate."

Senators have already been elected in Alberta, which has legislation mandating elections, and the prime minister has recommended some of them for appointment to the Senate.

The court had no comment on the legitimacy of the several Alberta senators currently sitting in the upper chamber.

Fixed terms and property ownership

The court found the proposal of term limits or renewable terms for senators to be a profound change that requires the sign-off of most of the provinces.

"Security of tenure," the court said "is intended to allow senators to function with independence," and fixed terms would affect the Senate's fundamental role and nature.

But the court did agree that a senator does not require $4,000 worth of property to remain independent, nor does he or she need to show $4,000 of personal net worth as the rules currently mandate.

This is one change Parliament could unilaterally put in place, except in the case of Senate seats in Quebec, where consent would be needed because of a historical constitutional arrangement with that province.

High bar for abolition

The court found that the Senate plays a crucial role in any constitutional amendment by its ability to delay a change proposed by the House of Commons.

The very functioning of the constitutional amending formula would be at stake if the Senate were to disappear, said the court, concluding that all the provinces — not just seven of them — would have to agree with the federal government on a decision to eliminate the Senate.

• From CBC archives: Will the Senate ever be reformed? (1985)

The consent of the territories is not necessary in any amendment.

The court's decision Friday is not a judgment, but it is a pronouncement on the constitutional validity of the changes the government proposed, and a road map for the role of the provinces and the Senate itself have in any reforms to the upper house.

Liberals suggest eviction

Liberal MP Stéphane Dion, speaking to reporters in the Supreme Court foyer, said the only realistic plan for Senate reform is for Harper to follow in Liberal Leader Justin Trudeau's footsteps and evict his senators from caucus.

All Senators would then be more independent and less partisan, Dion said.

Harper has said many times that if the Senate can't be reformed, the government would abolish it, and NDP Leader Tom Mulcair has embraced the longstanding NDP policy of abolition.

Asked if he thought Harper or Mulcair would push for a referendum on abolition, Dion replied that all a referendum would achieve is an expression about how people feel about the Senate. The constitution would still have to be opened up, he said, causing a stampede of provincial premiers lobbying for their own agendas.

"The premier of Quebec has been very clear on that, and I'm sure he's not alone," Dion said. Quebec Premier Philippe Couillard has suggested Quebec should insist on the entrenchment of "distinct society" recognition in a constitutional amendment.

Harper had asked the court last fall to advise the government on four questions.

The first three questions inquired whether Parliament, on its own, can make changes to senators' terms, qualifications and method of selection:

• Can senators be appointed for terms of 8, 9 or 10 years, or for the lives of a couple of Parliament sessions?
• Can senators be chosen by consultations with the provinces in the form of provincial elections, as has happened in Alberta?
• Can the archaic requirement of a senator owning at least $4,000 worth of property in his or her province be eliminated?

The final question was about the ability to abolish the Senate, a prospect that looks exceedingly unlikely given Friday's decision from the court.