Provincial governments are taking a dim view of the federal government's latest argument that it can reform the Senate without provincial consent.
After the Harper government filed a legal brief to the Supreme Court of Canada this week, a spokeswoman for Ontario Premier Kathleen Wynne said Ontario's position "is that provincial consent is required" to reform the upper chamber, a sentiment echoed by the government of British Columbia Premier Christy Clark. A spokesman for Clark said "British Columbians should have a say" in what happens to the upper chamber.
Several constitutional experts agree with them, suggesting that the Constitution was not designed to limit the provinces' input into Senate reform.
That view will likely form the basis of the provinces' arguments before Canada's top court, which is being asked to rule on how the Senate can be reformed or abolished.
The federal government, in its submission to the Supreme Court of Canada on Thursday, argued that the Constitution grants more control to Parliament than to the provinces when it comes to changing the Senate.
It also argued that the drafters of the Constitution and the amending formula for it saw provincial involvement in changing the Senate as limited to just "a few matters."
"The argument that the provinces were somehow a negligible partner in this seems a little dubious," said David E. Smith, a noted constitutional expert now at Ryerson University in Toronto. "Do the provinces have a role here in regards to amending? The answer is yes."
The federal government's legal factum also provided a history of Senate reform debates and decisions, and references a Pearsonera decision that set the mandatory retirement age for senators at 75 and a 1981 Supreme Court ruling that determined the federal government had power to make some changes to the Senate.
All were used in the factum to support the federal government's position.
Experts say the past decisions are helpful for context, but they predate the current amending formula for the Constitution, which is the subject of review.
"When the amending formula was created, it was a compromise and one of the big things it (ensured) is that the fundamental law of the land could not be amended without the consent of the provinces," said Ned Franks, a constitutional expert from Queen's University.
Even then, Franks said, the Chretien Liberals gave constitutional veto power to five regions - the Atlantic Provinces, Quebec, Ontario, the Prairies and British Columbia. That means unanimous consent for any change to the Constitution is almost required, which the government doesn't address in its submission, he said.
"Unless it's a very extraordinary circumstance, I see the amending formula as a straitjacket," Franks said.
The Constitution requires the unanimous consent of provinces for changes to the official languages of Canada and the composition of the Supreme Court, while requiring the consent of at least seven provinces representing half the country's population for other changes (the so-called "7/50" formula).
That wording in the Constitution may make it difficult for the federal government to successfully argue that eliminating or reforming the Senate can be done unilaterally by Parliament.
"I found it very counter to my sense of Canada as a federation that the government of Canada ... that that singular institution could bring about change of this magnitude to the federation," Smith said.
What is the Supreme Court of Canada being asked to do?
It's being asked six questions by the federal government. Here are the questions, and a summary of the arguments the federal government makes for each:
1. Can Parliament amend section 29 of the Constitution to set term limits and apply them to everyone currently in the Senate, or those appointed after Oct. 14, 2008? The federal government argues: The 7/50 rule of the Constitution only requires provincial consent for four types of Senate reform: the powers of the Senate, the method of selecting senators, the number of senators from each province, and the requirement that each senator be a resident of the province they represent. "None of these affects Parliament's authority ... to impose term limits."
As for applying them retrospectively, the government argues that it can apply the term limits to anyone in the Senate because the law allows for a statute to remedy the problem or "perceived mischief " it was introduced to address: "The 'mischief ' in question here is a critical one: the proposed reforms seek to address long-standing concerns that undermine the Senate's legitimacy as a democratic institution. Without retrospective application, the goal of enhancing the Senate's legitimacy might be a generation away from being fulfilled."
2. Can Parliament create a framework for a national consulting process so the residents of each province and territory can voice their preferences for Senate nominees? The federal government argues: Simply consulting with provinces doesn't mean there are direct elections to the Senate.
All that national consultations provide is a way for the prime minister to determine who people want to see in the Senate.
Any argument that says this will lead to direct elections has "no factual basis" and "relies on an unreasonable hypothesis of how events would unfold." Nowhere in the Senate Reform Act is it written that the prime minister has to listen to the will of the people.
3. Can Parliament create a framework for provincial elections to select Senate nominees? The federal government argues: A vote of the people about who they want to see in the Senate does not change the fact that the prime minister must appoint senators. The prime minister can ignore the results. "This is not a change to the 'method of selecting senators' because the essential discretion of the prime minister is preserved, not removed. The consultation process injects an element of transparency and accountability to the process since the prime minister may pay a political price for passing over the winner of the nominee election."
4. Can Parliament kill the $4,000 property requirement for senators? The federal government argues: Only the residency requirements for senators are singled out in the Constitution as something that requires the 7/50 rule. Therefore, it stands to reason that every other requirement to be a senator - including being at least 30 years old and a Canadian citizen - could be changed by Parliament.
5. Can the Senate be abolished by using the so-called 7/50 rule or by: changing the wording of the ¦¦ Constitution to add a paragraph outlining a date for the Senate to die? removing references to the Sen-¦ ate in the Constitution? ¦¦¦taking away the powers of the Senate and the need for provincial representation in the Senate? The federal government argues: The 7/50 rule of the Constitution is required if there are any changes to the powers of the Senate, the number of senators per province, the method of selecting senators, and the residency requirements. Abolishing the Senate would touch on the number of senators and the powers of the Senate, which would require the consent of at least seven provinces representing half the country's population.
6. If the 7/50 rule doesn't apply to Senate abolishment, does there need to be the unanimous consent of provinces and Parliament? The federal government argues: No. The Supreme Court in 1982 refused to make unanimous consent a required part of any constitutional amendments if there was no wording in the Constitution requiring it. There is nothing in the Constitution that explicitly says there needs to be unanimous consent for the Senate to be abolished.
What do the provinces say?
Quebec: Premier Pauline Marois did not respond to request for comments. In late July, Marois spokeswoman Marie Barrette told Postmedia News the Quebec government "doesn't have a goal of reforming federal institutions." She added, "So you'd understand that the idea of reforming or abolishing the Senate doesn't fit in with the priorities of the Quebec government."
Ontario: A spokeswoman for Premier Kathleen Wynne said that any talk of Senate reform should be led by the federal government. Zita Astravas said Ontario's position is that provincial consent is required for any Senate reforms. ¦¦Saskatchewan: Premier Brad Wall's office did not respond to multiple requests for comment. Wall's government is set to introduce a bill calling for a constitutional amendment abolishing the Senate.
Alberta: A spokesman for Cal Dallas, Alberta's intergovernmental affairs minister, wouldn't say what reaction the province had to the federal government's arguments, or what position it will take before the Supreme Court.
British Columbia: "A basic principle here is that we believe British Columbians deserve a say" in Senate reform, said Sam Oliphant, press secretary to Premier Christy Clark.
What comes next?
August 30: Deadline for final written submissions from the 10 provinces and two territories who are interveners in the case, as well as French-language groups and two senators who have also been granted intervener status.
Sept. 10-11: The Quebec Court of Appeal will hear arguments over the Quebec government's legal challenge to the constitutionality of the federal Senate Reform Act.
Nov. 12-14: The Supreme Court of Canada will hear arguments on the federal government's reference questions on the Senate Reform Act.
And a decision? The Supreme Court usually takes between 10 and 24 months from the date a reference is filed to release a decision. That would mean a decision could be released as early as December, or as late as February 2015.
Original Article
Source: canada.com
Author: Jordan Press
After the Harper government filed a legal brief to the Supreme Court of Canada this week, a spokeswoman for Ontario Premier Kathleen Wynne said Ontario's position "is that provincial consent is required" to reform the upper chamber, a sentiment echoed by the government of British Columbia Premier Christy Clark. A spokesman for Clark said "British Columbians should have a say" in what happens to the upper chamber.
Several constitutional experts agree with them, suggesting that the Constitution was not designed to limit the provinces' input into Senate reform.
That view will likely form the basis of the provinces' arguments before Canada's top court, which is being asked to rule on how the Senate can be reformed or abolished.
The federal government, in its submission to the Supreme Court of Canada on Thursday, argued that the Constitution grants more control to Parliament than to the provinces when it comes to changing the Senate.
It also argued that the drafters of the Constitution and the amending formula for it saw provincial involvement in changing the Senate as limited to just "a few matters."
"The argument that the provinces were somehow a negligible partner in this seems a little dubious," said David E. Smith, a noted constitutional expert now at Ryerson University in Toronto. "Do the provinces have a role here in regards to amending? The answer is yes."
The federal government's legal factum also provided a history of Senate reform debates and decisions, and references a Pearsonera decision that set the mandatory retirement age for senators at 75 and a 1981 Supreme Court ruling that determined the federal government had power to make some changes to the Senate.
All were used in the factum to support the federal government's position.
Experts say the past decisions are helpful for context, but they predate the current amending formula for the Constitution, which is the subject of review.
"When the amending formula was created, it was a compromise and one of the big things it (ensured) is that the fundamental law of the land could not be amended without the consent of the provinces," said Ned Franks, a constitutional expert from Queen's University.
Even then, Franks said, the Chretien Liberals gave constitutional veto power to five regions - the Atlantic Provinces, Quebec, Ontario, the Prairies and British Columbia. That means unanimous consent for any change to the Constitution is almost required, which the government doesn't address in its submission, he said.
"Unless it's a very extraordinary circumstance, I see the amending formula as a straitjacket," Franks said.
The Constitution requires the unanimous consent of provinces for changes to the official languages of Canada and the composition of the Supreme Court, while requiring the consent of at least seven provinces representing half the country's population for other changes (the so-called "7/50" formula).
That wording in the Constitution may make it difficult for the federal government to successfully argue that eliminating or reforming the Senate can be done unilaterally by Parliament.
"I found it very counter to my sense of Canada as a federation that the government of Canada ... that that singular institution could bring about change of this magnitude to the federation," Smith said.
What is the Supreme Court of Canada being asked to do?
It's being asked six questions by the federal government. Here are the questions, and a summary of the arguments the federal government makes for each:
1. Can Parliament amend section 29 of the Constitution to set term limits and apply them to everyone currently in the Senate, or those appointed after Oct. 14, 2008? The federal government argues: The 7/50 rule of the Constitution only requires provincial consent for four types of Senate reform: the powers of the Senate, the method of selecting senators, the number of senators from each province, and the requirement that each senator be a resident of the province they represent. "None of these affects Parliament's authority ... to impose term limits."
As for applying them retrospectively, the government argues that it can apply the term limits to anyone in the Senate because the law allows for a statute to remedy the problem or "perceived mischief " it was introduced to address: "The 'mischief ' in question here is a critical one: the proposed reforms seek to address long-standing concerns that undermine the Senate's legitimacy as a democratic institution. Without retrospective application, the goal of enhancing the Senate's legitimacy might be a generation away from being fulfilled."
2. Can Parliament create a framework for a national consulting process so the residents of each province and territory can voice their preferences for Senate nominees? The federal government argues: Simply consulting with provinces doesn't mean there are direct elections to the Senate.
All that national consultations provide is a way for the prime minister to determine who people want to see in the Senate.
Any argument that says this will lead to direct elections has "no factual basis" and "relies on an unreasonable hypothesis of how events would unfold." Nowhere in the Senate Reform Act is it written that the prime minister has to listen to the will of the people.
3. Can Parliament create a framework for provincial elections to select Senate nominees? The federal government argues: A vote of the people about who they want to see in the Senate does not change the fact that the prime minister must appoint senators. The prime minister can ignore the results. "This is not a change to the 'method of selecting senators' because the essential discretion of the prime minister is preserved, not removed. The consultation process injects an element of transparency and accountability to the process since the prime minister may pay a political price for passing over the winner of the nominee election."
4. Can Parliament kill the $4,000 property requirement for senators? The federal government argues: Only the residency requirements for senators are singled out in the Constitution as something that requires the 7/50 rule. Therefore, it stands to reason that every other requirement to be a senator - including being at least 30 years old and a Canadian citizen - could be changed by Parliament.
5. Can the Senate be abolished by using the so-called 7/50 rule or by: changing the wording of the ¦¦ Constitution to add a paragraph outlining a date for the Senate to die? removing references to the Sen-¦ ate in the Constitution? ¦¦¦taking away the powers of the Senate and the need for provincial representation in the Senate? The federal government argues: The 7/50 rule of the Constitution is required if there are any changes to the powers of the Senate, the number of senators per province, the method of selecting senators, and the residency requirements. Abolishing the Senate would touch on the number of senators and the powers of the Senate, which would require the consent of at least seven provinces representing half the country's population.
6. If the 7/50 rule doesn't apply to Senate abolishment, does there need to be the unanimous consent of provinces and Parliament? The federal government argues: No. The Supreme Court in 1982 refused to make unanimous consent a required part of any constitutional amendments if there was no wording in the Constitution requiring it. There is nothing in the Constitution that explicitly says there needs to be unanimous consent for the Senate to be abolished.
What do the provinces say?
Quebec: Premier Pauline Marois did not respond to request for comments. In late July, Marois spokeswoman Marie Barrette told Postmedia News the Quebec government "doesn't have a goal of reforming federal institutions." She added, "So you'd understand that the idea of reforming or abolishing the Senate doesn't fit in with the priorities of the Quebec government."
Ontario: A spokeswoman for Premier Kathleen Wynne said that any talk of Senate reform should be led by the federal government. Zita Astravas said Ontario's position is that provincial consent is required for any Senate reforms. ¦¦Saskatchewan: Premier Brad Wall's office did not respond to multiple requests for comment. Wall's government is set to introduce a bill calling for a constitutional amendment abolishing the Senate.
Alberta: A spokesman for Cal Dallas, Alberta's intergovernmental affairs minister, wouldn't say what reaction the province had to the federal government's arguments, or what position it will take before the Supreme Court.
British Columbia: "A basic principle here is that we believe British Columbians deserve a say" in Senate reform, said Sam Oliphant, press secretary to Premier Christy Clark.
What comes next?
August 30: Deadline for final written submissions from the 10 provinces and two territories who are interveners in the case, as well as French-language groups and two senators who have also been granted intervener status.
Sept. 10-11: The Quebec Court of Appeal will hear arguments over the Quebec government's legal challenge to the constitutionality of the federal Senate Reform Act.
Nov. 12-14: The Supreme Court of Canada will hear arguments on the federal government's reference questions on the Senate Reform Act.
And a decision? The Supreme Court usually takes between 10 and 24 months from the date a reference is filed to release a decision. That would mean a decision could be released as early as December, or as late as February 2015.
Original Article
Source: canada.com
Author: Jordan Press
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