The Supreme Court just released its long-awaited Senate Reference decision. And the response was spectacularly rebuking.
Harper posed the following questions to the Court and the following responses were provided. I have significantly condensed the decision for easy access.
Harper: Can the federal government unilaterally impose term limits on Senators?
Supreme Court: No, they may not.
Imposing term limits is a change that engages the interest of provinces. It requires the general amending formula to be used (seven provinces with at least 50 per cent of the population), also known as the 7/50 procedure. Imposing fixed terms is not specifically written in the Constitution, imposing term limits would alter the fundamental nature and role of the Senate.
Harper: Can the federal government unilaterally develop legislation that allows citizens to be consulted for potential Senate nominees? Can the federal government establish a framework for provinces and territories to enact legislation to consult their citizens for Senate nominees?
Supreme Court: No, they may not.
Imposing consultative elections would change the architecture of the Constitution. Such an amendment falls under the 7/50 general amending rule. Even though consultative elections are informal, and the federal government would appoint the winner, it still falls under “the method of selecting Senators” that falls under the 7/50 procedure.
Harper: Can the federal government unilaterally abolish property qualifications for Senators?
Supreme Court: S. 23(4), the $4,000 property requirement, can be. However, s. 23(3) would also require the consent of Quebec.
Harper: Can the Senate be abolished using the general amending formula (7/50 procedure)?
Supreme Court: No, it may not. All provinces must unanimously support abolition.
Outright abolition of the Senate goes beyond just its reform. The 7/50 rule can be used to change the powers of the Senate or the number of Senators. However, abolishing the Senate is a significant structural modification would eliminate bicameralism. All bills and amendments must pass through both Houses of Parliament in order to become law. Abolishing the Senate would fundamentally alter our system of government, and so unanimous consent of all provinces and both Houses of Parliament is required.
What Happens Next?
Greg Weston of CBC suggested in an article before the ruling that:
One Conservative insider says that no matter what the Supreme Court ruling is on Friday, “the government will find a happy face to put on the decision.
“Maybe they will simply throw up their hands and say, ‘Well, we tried our best, you’ve heard the court, so let’s just move on to other things.'”
All things considered, the government might call that a happy ending.
I think that this outcome is extremely likely. Even though Harper has been in power for eight years now, and while Senate reform was one of the issues emphasized while he was in opposition, it only appeared very recently on the Conservative agenda. The Harper government did not attempt to negotiate with the provinces on the Senate agenda (or, for that matter, on a variety of other matters. Harper avoids First Ministers Meetings with the Premiers like the plague).
The Senate Reference was a cop-out. Harper can now say that he tried to reform the Senate, but that the judiciary blocked his efforts to do so. It may well play in to his overall strategy. He can rail against unelected Senators and the Supreme Court. And now, he has an excuse not to further pursue the Senate reform agenda.