Senate Reform, Provinces, and the Constitutional Question

After a convincing election victory, Prime Minister Harper is set to move forward with his plan to reform Senate. Since 2006, PM Harper has persistently attempted to reform Senate only to fail. Senate reform remains a hotly contested issue, especially within the provinces whose positions range from complete abolishment, provincial elections (as proposed by PM Harper), while others wish to maintain the status quo. Interim Liberal Party Leader Bob Rae argues the Senate reform question should be sent to the Supreme Court as a reference question. As Peter McKenna writes: “Harper is headed for constitutional thin ice”.

Prime Minister Harper’s Current Reform Plan
PM Harper’s Senate reform attempts have focused on two lines: the tenure of Senators and the Senate appointment process. The ensuing legislative history of these two initiatives highlights the complex and difficult terrain of Senate reform in Canada.

Terms Limits
PM Harper’s first attempt at Senate reform was through Bill S-4, introduced on 30 May 2006. Bill S-4 fixed Senate appointments to eight years, while allowing those already in Senate to remain in Senate until the age of 75. Bill S-4 failed to reach its third reading in Parliament because it was recommended that the Supreme Court of Canada should rule on its constitutionality.

This Bill was then amended to Bill C-19, and re-introduced on 17 November 2007. Bill C-19 put a non-renewable condition on the eight year Senator tenure, while also proposing a mandatory retirement age of 75 for all Senators. This Bill died due to the federal election of 2008.

Then on 28 May 2009, the slightly amended Bill S-7 was introduced but died out in its second reading that same year. The Bill was once again amended and re-introduced on 29 March 2010, as Bill C-10. This Bill also failed to proceed after a vote in the House of Commons.

The Appointment Process
Regarding the second issue, on 13 December 2006 PM Harper introduced Bill C-43, entitled the Act to provide for consultations with electors on their preferences for appointments to the Senate. CBC wrote that the Bill “which falls short of allowing full Senate elections, calls for voters to choose preferred candidates to represent their provinces and territories”, after which point the Prime Minister would choose from the pool of elected candidates. Bill C-43 died when the parliamentary session ended in 2007.

Then on 13 November 2007, Bill C-43 was re-introduced as Bill C-20: the Senate Appointment Consultations Act. But this Bill also died with the 2008 prorogation of parliament.

Finally Bill S-8, Senatorial Selection Act, was introduced on 27 April 2010, but it also died in its second reading when the Federal election of 2011 was called.

Current Bills
The current parliamentary session opened on 3 June 2011 with the speech from the throne. Within the speech, the Harper government specifically states “Our Government will reintroduce legislation to limit term lengths and to encourage provinces and territories to hold elections for Senate nominees.” This is likely to take the same form as the previous failed bills, though bolstered by Conservative majorities in the House of Commons and now Senate as well. This sets the stage for a potential clash across the nation.

Provincial Reaction
There is considerable debate about how Senate reform can and should proceed. For instance, Liberal Senator Serge Joyal challenged Harper’s Bill S-8 in 2010. Senator Joyal says that, under section 42 of the Constitution Act, 1982, Senate reform measures related to appointments requires provincial consultation and a constitutional amendment using the 7/50 formula.

The provincial response has varied.

Ontario and Nova Scotia call for the complete abolition of the Senate. Ontario Premier Dalton McGuinty says Senate reform is ill-advised and only abolishment will satisfy him. New Brunswick Premier David Alward has stayed quiet on the issue, whereas Nova Scotia Premier Darrell Dexter has rallied against any unilateral federal reform measures and prefers abolishment as well.

British Columbia Premier Christy Clark prefers abolishing the Senate. If that does not occur, Premier Clark prefers that her province elect its Senators as Alberta already does. In that regard, British Columbia Member of the Legislative Assembly John Les introduced a private member’s Bill entitled the Senate Nominee Election Act. The Senate Nominee Election Act is similar to Alberta’s Senatorial Selection Act, which mandates provincial elections for nominations to the Senate.

Meanwhile, Quebec in reference to the PM Harper’s Senate reform measures, is threatening “to fight him all the way to the Supreme Court”. Quebec Intergovernmental Affairs Minister Pierre Moreau argues that fixed terms and provincial government direction over the Senate appointment process would “usurp provincial governments as the foremost representatives of their citizens”. Mr. Moreau also says that such a measure would be unconstitutional without provincial consent.

The Constitutional Question
Wide-ranging provincial dissent, particularly Quebec’s position, should be of concern. Yet, clarity on the best means of proceeding with Senate reform can easily be attained.

Liberal interim leader Mr. Bob Rae recently argued the Harper government should consult the SCC before proceeding with Senate reform initiatives.

What Mr. Rae is likely referring to is section 53 of the Supreme Court Act which provides the Governor in Council with the capacity to refer “important questions of law or fact” to the Supreme Court. Some of the most famous cases under this procedure include Reference re Secession regarding Quebec and Reference re Same-Sex Marriage.

Yet, Mr. Tim Uppal, Minister of State for Democratic Reform, recently said the current government does not intend to refer the question to the SCC because they believe their measures “are within the constitutional authority of Parliament.” Mr. Uppal buttressed this argument by saying his government was “not interested in opening up the Constitution” and that Canadians “don’t want drawn-out constitutional fights.” These are clearly concerns, but would such an approach avoid “drawn-out constitutional fights”?

Put the Constitutional Issue to Rest
A clear consensus exists in Canada that Senate must be reformed, but like many issues, the actual method by which to proceed gives rise to heated debate. While it appears federal initiative is imperative, how much provincial involvement and consent is required?

Regardless of who attempts to bring Senate reform, or how it is done, it will likely be met with some opposition. As Quebec has already pointed out, it will be challenging the federal government’s reform measures from the lower courts right up to the SCC. This amount of litigation will be unnecessarily costly, time-consuming, and a distraction from more pressing issues such as health-care, the economy, the environment, and security.

Put the constitutional issue to rest.

By making use of the section 53 procedure, a reference question can clarify the constitutionally valid method by which to proceed and preempt any costly legal challenges. There is some criticism that Canadian courts should not be making decisions on hot political issues and defer such decisions to legislatures. But the Senate reform question is not one of high political stakes but rather a question of constitutional validity, one which speaks to the essence of the SCC’s constitutional role.

While PM Harper could proceed unilaterally, this approach will inevitably result in costly and time-consuming legal challenges from lower courts up to the Supreme Court. It may well be worth nipping this possibility in the bud by seeking out a SCC reference on this issue. The answer would not determine the character of constitutional reform itself (a question best left for legislatures), but rather the constitutionally valid method by which to proceed. Such clarity is essential in guiding any realistic effort and hope of reforming an archaic institution in need of reform.

To borrow Benjamin Franklin famous quote: “An ounce of prevention is worth a pound of cure.”