“Obviously we do have Senate reform legislation that we do want to see passed, but I’m not going to speculate about next steps,” said PMO director of communications Andrew MacDougall in an interview with The Hill Times outside the Commons foyer last week. “I don’t tend to comment on unsourced pieces, but I will say that I won’t confirm it, but I won’t deny it either.”
On Sept. 17, The Globe and Mail reported that the Harper government plans to seek a Supreme Court reference on Bill C-7 in the face of opposition from both the provinces and members of the Conservative caucus, according to unnamed sources. The Toronto Star’s national affairs columnist Chantal Hébert reported that the move would put Senate reforms on ice at least until the next federal election, if not forever, because of the amount of time it would take the court to deliberate and the unlikelihood that it would be found constitutional. The Hill Times also reported last week that the Prime Minister, who has appointed 51 Senators since 2006, has not moved on Senate reform legislation even with a majority now in both Houses because he is hoping to allow time for the idea of an elected Senate and nine-year Senate term limits to seem like the norm to the Canadian public, to diminish opposition and pave the way for future prime ministers to continue the practice.
The main question facing the proposed Senate reforms revolves around the amending formula needed to make the changes. Bill C-7 seeks to unilaterally impose a non-renewable nine-year Senate term limit—the countdown for which would begin when the bill receives royal assent—and introduce framework for provinces to hold their own Senate elections, but many legal experts argue amendments cannot be made without two-thirds of provincial support representing 50 per cent of the population or with unanimous provincial and federal consent.
Liberal MP Stéphane Dion (Saint Laurent-Cartierville, Que.), his party’s democratic reform critic, agreed that a Supreme Court reference would put the issue “on ice.” Mr. Dion said he has been asking the government to seek a Supreme Court reference on its Senate reform proposals since 2007. “We would have had the answer of the court for a long time now,” he told The Hill Times.
NDP MP Craig Scott (Toronto-Danforth, Ont.), his party’s new democratic reform critic, said he’s heard “absolutely nothing” about a Supreme Court reference. Mr. Scott said he didn’t think the bill would necessarily be put on ice if it went to the Supreme Court because “the court itself would see this as a priority,” and said he will be closely watching a reference on Bill C-7 recently put to the Quebec Court of Appeal.
Asked clearly to respond to The Globe and Mail story suggesting the government will refer Senate reforms to the Supreme Court of Canada, Minister of State for Democratic Reform Tim Uppal (Edmonton-Sherwood Park, Alta.), who introduced Bill C-7 on June 21, 2011, declined to set the record straight.
“We are committed to making the Senate more democratic, accountable and representative of Canadians. This legislation is already being considered by the courts,” said Mr. Uppal’s spokesperson, Kate Davis, in an email to The Hill Times, referring to the Quebec case. Ms. Davis also said Mr. Uppal would not be making any further comment.
However, a source speaking on background with The Hill Times said The Globe report of the government seeking a Supreme Court reference was “simply speculation.”
Stopped by The Hill Times in the Centre Block foyer, Conservative MP Rob Anders (Calgary West, Alta.), who personally supports a Triple-E Senate, said he recalled reading a memo from the PMO on the issue which said a story about the Supreme Court reference “didn’t have the situation quite right.”
Alberta Conservative Senator Bert Brown, the second elected Senator to arrive in the Senate and the PM’s lead spokesperson on Senate reforms, said reports that he had spoken with Prime Minister Stephen Harper (Calgary Southwest, Alta.) about the possibility of seeking a Supreme Court reference at the beginning of the summer were “incorrect.”
“I was with the Prime Minister last night at a party,” said Sen. Brown in an interview with The Hill Times on Sept. 18. “So there was no discussion from anyone from the government that I know of that wanted a Supreme Court reference. The only thing I said when somebody asked me about it, I said, ‘Well I think if someone wants to go forward with it, they want to go forward with it.’ ”
New Brunswick Conservative Senator Carolyn Stewart Olsen, who said she personally supports the Senate reforms and thinks the bill has been delayed as a result of a focus on the economy and other legislative priorities, said she hasn’t heard anything about the government seeking a Supreme Court reference. “I think it’s speculation from a lot of people. I haven’t heard anything to that affect,” she said in an interview with The Hill Times. “I think what’s happening is the government’s not going to push forward. Let people get used to this idea, let the provinces have a look at it.”
On May 1, the Quebec government referred three constitutional questions on Bill C-7 to the Quebec Court of Appeal to ask whether the bill constitutes an amendment to the Constitution of Canada which can be made only by unanimous agreement from the House, the Senate, and the provinces; whether proposed changes to Senatorial selection constitute an amendment that can be made only by agreement from the House, the Senate and at least two-thirds of the provinces representing at least 50 per cent of the population (seven provinces that make up 50 per cent of the population); or whether proposed changes to the fundamental features and role of the Senate can be made only with the agreement of the House, the Senate and 7/50 provincial support. The case has not yet been deliberated in Quebec court, prospective interventions have until Oct. 12, 2012, to be filed.
The PMO is watching the situation in Quebec. “We’re obviously aware of those questions and we do know there is some debate about the legislation and its constitutionality, so yes, we are watching that,” Mr. MacDougall said.
A ruling by the Quebec Court of Appeal would not be a final say on the constitutionality of the changes proposed in Bill C-7 because the decision could still then be taken to the Supreme Court.
Sen. Brown and Sen. Stewart Olsen pointed out that Bill C-7 does not force provinces to hold elections, but merely introduces a framework by which they could do so. Moreover, the bill does not require the Prime Minister to recommend elected Senators-in-waiting for appointment to the Senate, he is only required to “consider” them.
The bill remains at second reading, and is the seventh time the government has introduced Senate reform legislation. However, this is the first time the issue of term limits and Senate selection have been combined, and it is the first version introduced under a majority government. Bill C-7 was last debated in the Commons on Feb. 27, 2012, and both Government House Leader Peter Van Loan (York-Simcoe, Ont.) and Mr. Uppal have said the opposition has blocked the bill’s progress.
“What’s really delayed the bill has been the fact that the opposition continue to put up more speakers in the House of Commons every time it comes up for debate,” said Mr. Uppal in an interview with The Hill Times earlier this month. “If we bring in time allocation on a bill then they complain.”
The NDP has said it favours abolishing the Senate, while the Liberal Party has said reforms must be made with a proper constitutional amendment, that all provinces should be proportionately represented in an elected Senate and that a dispute-resolution mechanism is needed to mitigate the possibility of Parliamentary gridlock should the two elected Chambers disagree.
The Supreme Court has previously on Senate reform. In 1978, then Liberal prime minister Pierre Trudeau introduced Bill C-60 which, among other things, proposed replacing the Senate with a House of the Federation whose members would be half chosen by the House of Commons and half by provincial legislatures.
University of Ottawa professor Michael Behiels said Trudeau’s unsuccessful attempt at unilateral reforms was met by opposition from the premiers who “just walked away from the table … and Trudeau tried to clear the air by making a reference to the Supreme Court.”
In its decision, the Supreme Court found Parliament alone did not have the ability to abolish the Senate (as Parliament is made up of the House and Senate), and, more relevant to Bill C-7, ruled that “it is not open to Parliament to make alterations which would affect the fundamental features or essential characteristics given to the Senate as means of ensuring regional and provincial representation in the federal legislative process.” In other words, the numbers, proportions and selection of Senators could not be changed by Parliament alone. However, the court declined to rule on whether Senate tenure could be changed, among other aspects, because of a lack of context.
Prof. Behiels said it would be politically advantageous for Mr. Harper to pre-emptively refer Bill C-7 to the Supreme Court so that the government could shape the reference and questions being posed.
Although all Senate appointment announcements the Prime Minister has made since Oct. 14, 2008, have included a line stating the appointee had committed to Senate reform, there has been some opposition to the reforms within the Conservative caucus. This prompted Sen. Brown to send a letter in June 2011 to his caucus colleagues asking them to stand behind Mr. Harper following a caucus meeting at which Mr. Uppal had reportedly been “showered with complaints.”
In an interview with The Hill Times Sen. Brown said there are probably “less than a dozen” Conservative Senate caucus members who oppose Senate term limit changes.
In addition, Nova Scotia Conservative Senator Michael MacDonald told Postmedia in June 2011 that “there are a lot of unintended consequences from an elected Senate…the Senate wasn’t set up to be elected.”
Of the 51 Senators Mr. Harper has appointed, 49 would be subject to the retroactive limits (former Senator Michael Fortier was appointed in 2006 but resigned in 2008; Sen. Brown was appointed in 2007 and retires next year).
At the beginning of September, Mr. Harper announced the appointment of five new Conservative Senators, bringing the 105-seat Upper Chamber to a total of 62 Conservatives, 40 Liberals, two independents and one Progressive Conservative.
When he was elected as Prime Minister, Mr. Harper said that he would not appoint Senators to the Upper Chamber unless they were elected, but Sen. Brown said it was a Liberal Senator’s call to fill Senate vacancies that made the Prime Minister understand vacancies would only keep mounting if he did not appoint people.
In 2008, Nova Scotia Liberal Senator Wilfred Moore introduced Bill S-224, the Filling Parliamentary Vacancies Bill, which sought to force the prime minister to fill seats in the Senate within six months of becoming vacant, much like the law around byelections in the House of Commons. The Conservatives opposed the bill and criticized it for seeking to “entrench the status quo.” Bill S-224 died on the Order Paper when Parliament was prorogued in December 2009.
Original Article
Source: hill times
Author: Laura Ryckewaert
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