Supreme Court shoots down Stephen Harper’s Senate reform plans

The Canadian Press
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Consent of all 10 provinces needed before Senate can be abolished, court rules

The Supreme Court of Canada has ruled reforming the Senate would require constitutional amendments approved by at least seven provinces representing 50 per cent of the population. Abolishing it altogether would require unanimous consent of all 10 provinces.

OTTAWA —Stephen Harper’s hopes of a quick fix for the scandal-plagued Senate were blown to pieces Friday by the Supreme Court of Canada.

In a historic, unanimous decision, the top court advised that the prime minister’s proposals to impose term limits on senators and create a “consultative election” process to choose nominees cannot be done by the federal government alone.

Rather, the court said such reforms would require constitutional amendments, approved by at least seven provinces representing 50 per cent of the population —  a route fraught with political landmines which Harper had hoped to avoid.

Moreover, the court set the bar even higher for abolishing the Senate, something Harper has threatened to do if his reform agenda is stymied. Getting rid of the chamber altogether would require the unanimous consent of all 10 provinces, the eight justices said.

Harper sought the top court’s advice after a number of provinces strenuously objected to the federal government’s plans to proceed unilaterally with its reform proposals.

The court accepted the argument of most provinces, that the Senate is a key part of the political bargain struck at Confederation and, consequently, can’t easily be tinkered with — no matter how compelling reform or abolition might seem in the wake of the Senate expenses scandal.

“The Senate is one of Canada’s foundational political institutions,” said the ruling, which was attributed to the court as a whole. “It lies at the heart of the agreements that gave birth to the Canadian federation.”

In creating the Senate, the court said the Fathers of Confederation deliberately chose an appointed chamber, which was supposed to be independent, free of partisanship and able to apply “sober second thought” to legislation without blocking the will of the elected House of Commons.

Turning the Senate, directly or indirectly, into an elected chamber “would fundamentally modify the constitutional architecture ... and, by extension, would constitute an amendment to the Constitution,” the court said.

“They would weaken the Senate’s role of sober second thought and would give it the democratic legitimacy to systematically block the House of Commons, contrary to its constitutional design.”

The federal government had argued that consultative elections wouldn’t be binding and, since the prime minister would remain free to appoint whomever he pleases, the change was simply a housekeeping matter.

While it acknowledged the prime minister could, in theory, ignore the results of senatorial elections, the court said: “The purpose of the (reform) is clear: to bring about a Senate with a popular mandate. We cannot assume that future prime ministers will defeat this purpose by ignoring the results of costly and hard-fought consultative elections.”

Similarly, the court said imposing a limit on the term of senators, who currently serve until age 75, would also fundamentally change the constitutional architecture, interfering with senators’ independence.

No matter how long the fixed term, a limit would “imply a finite time in office and necessarily offer a lesser degree of protection from the potential consequences of freely speaking one’s mind on the legislative proposals of the House of Commons.”

The court noted that various constitutional amending procedures require Senate approval and any change to those amending formulas requires unanimous provincial consent. Hence, abolishing the Senate would change the amending formulas and, thus, must also require unanimous consent.

“The process of constitutional amendment in a unicameral system would be qualitatively different from the current process. There would be one less player in the process, one less mechanism of review.”

The Harper government also asked the court if it could unilaterally repeal  the constitutional requirement that a senator own at least $4,000 worth of property in the province he or she is appointed to represent.

The justices found the federal government could do that for every province but Quebec.

Since Quebec is the only province where senators are appointed to specific electoral districts, the province’s consent is required to change the property qualification, the ruling said.

Organizations: Supreme Court of Canada

Geographic location: OTTAWA

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Recent comments

  • Downtown Dougie
    April 26, 2014 - 11:30

    Does anyone that comments on these articles have a lucid political mind? Harper did what governments have always done when dealing with a hot button issue; he submitted a reference question to the supreme court to get an advisory opinion on an important legal matter concerning the entire country. The same was done with same sex marriage, Quebec secession, along with many other legal issues.

  • Aongasha
    April 26, 2014 - 09:12

    So PEI's stuck with those Liberal and Conservative bagmen, despite Harper's attempts to fire them? And the premiers won't act to get rid of them? Great. Remember this at election time. Ask your premiers why not, Canadians?

  • Bill B
    April 25, 2014 - 23:03

    All ten provinces? So no respect is given to our three territories? The people in the territories pay taxes like every other Canadian.

    • Craig
      April 26, 2014 - 06:56

      2 territories?

      April 26, 2014 - 10:53

      Three territories.....Nunavut, Northwest Territories and Yukon.

  • Oysterman
    April 25, 2014 - 16:28

    Credit to the Fed Conservatives for being the first ever Fed party to expose and punish Senate corruption....even their own and not just Liberals if they broke the rules. The Senate should not be a Royal retirement package and they should be on the ballot when ever an MP is. All MP's and senators should have open vote privileges and sign a contract that they forfeit their job and benefits if convicted of breaking the rules of employment just like the rest of us.

  • BNB
    April 25, 2014 - 15:31

    Oh above the law alright, just take a poll, ok that is impossible, then what do you think if most Canadian adults were polled today, should the Senate be abolished or at least be subject to elected terms, what do you think most would say? Oh please keep it, oh please let them serve unlimited terms and retire to a gold plated pensions, Oh please leave them and their "sober second thought" alone, Oh please keep it regardless of its waste and corruption, because the PM has no business "going above the law", right...They'd say get rid of it along with the SCOC and good riddance.

    • intobed
      April 26, 2014 - 01:26

      So you would prefer Harper as sole law maker, justice provider, and Emperor For Life?

  • Ozzy Osbourne
    April 25, 2014 - 15:03

    Abolish the Supreme Court Harper! Get rid of everything that stands in your way. You are setting a fine example for your son as it was vaguely reported how he left one of his girlfriends intoxicated and unconscious after the 420 weekend alone outside the gates of 24 Sussex to avoid the heat of having an ambulance actually take somebody out the house. I doubt Justin will be much better but at least he is a bit cooler.

  • Karen
    April 25, 2014 - 14:32

    Why don't all you commenters here tackle ghiz and his gang the same way. Perhaps pei would be a lees expensive place to live.

    • Mike C
      April 25, 2014 - 19:19

      Excuse me. I put Ghiz in the same catagory as harper. Self serving.

    • Yes
      April 26, 2014 - 07:26

      Yes I agree. Ghiz Liberal govt is ruining PEI totally yet only a few speak out about it.

  • Mike C
    April 25, 2014 - 13:02

    The only reason Harper went to the SCoC with this, and many more, issues is because he knew he had to work with the Pronvinces. For some reason, he has a distain working and/or consulting anyone. One would think that he should have known that he must consult others prior to becoming Canada's PM. We the same in-your-face approach to the Fair Elections Act. They refuse to work with anyone. Even the experts and academics who have no political stance what so ever. Canadians must become aware of what the conservatives are trying to change with this Act. It is NOT only about vouching, there are many more undemocratic changes contained in this Bill. Changes that will only benefit the conservative party. Not the other parties, not the HoC, not the elections and most certainly, not the Canadian public.

  • David Polk
    April 25, 2014 - 10:26

    Sometimes I wonder about our PM (well actually it's more often than sometimes). Since the decision was unanimous it's pretty clear that the PMs legal team knew that his Senate reform plans would not be approved. So one is left with the question: Why did he do it? The answer: politics. Now we can look forward to an election with the Senate as an issue. Funny that, since it is Harper's dreadful selections to the Senate that has fostered this whole debate.

    • ME
      April 25, 2014 - 12:57

      Once again Mr Harper presents himself and "his" government as being above the law, so to speak.. It doesn't take a Constitutional expert to figure out the rules. They are actually posted on the Canadian Government website. If the political will is there go for it, but follow the rules. Unfortunately Mr Harper cannot change all the rules to suit his agenda.

  • Billy
    April 25, 2014 - 10:22

    I believe it is the NDP who say get rid of the senate altogether . Why do you think harper asked the courts as to what he could do about the senate.