“I think term limits can definitely be seen as part of what we would call just Parliament having control over its sort of internal house-keeping [amendments it can make unilaterally under s.44 of the constitution]. I wouldn’t see term limits as being so integral to the role of Senators that you’d need the 7/50 rule,” Carissima Mathen, an associate law professor at the University of Ottawa, told The Hill Times.
Peter Russell, a professor emeritus of political science at the University of Toronto, told The Hill Times the opposing bench will argue term limits would reduce Senators’ power “if they can only be there for a limited number of years,” but said he thought the argument that the government can unilaterally impose term limits has a “50-50 chance of being accepted” as constitutional.
“I think they have a good chance on the term limits,” he said.
On Feb. 1, the Conservative government referred a total of six questions, 14 counting the sub-questions, on Senate reform efforts to the Supreme Court for a constitutional reference. Among the questions, it asked whether Parliament can unilaterally impose term limits on Senators (including retroactively), whether Parliament can unilaterally introduce a “means of consulting the population of each province and territory” to select Senate nominees, whether Parliament can unilaterally establish a voluntary framework for provinces to consult voters on nominees for Senate appointment, whether Parliament can unilaterally repeal the property qualifications for Senators, and whether Parliament can abolish the Senate or whether it would require unanimous consent.
Pierre Poilievre (Nepean-Carleton, Ont.), who became the Democratic Reform Minister of State in the recent Cabinet shuffle, held a press conference on July 31 to publicize the Conservative government’s arguments on Senate reform for constitutional references currently before both the Supreme Court and the Quebec Court of Appeal. The arguments are laid out in factums (public court documents) Justice department lawyers filed on July 31.
“The Prime Minister has said since 2006 that the Senate as present is not acceptable. The Senate must either be reformed or, like its provincial counterparts, it must be abolished. This reference to the Supreme Court will give Canadians a series of legal options and maybe even a how-to guide on how to pursue them. And once we hear back from the top court, we can take direction from Canadians on how to do so,” Mr. Poilievre said at the press conference.
The government introduced Bill C-7, the Senate Reform Bill, on June 21, 2011 and is currently at second reading in the House of Commons. The two significant reforms proposed in Bill C-7 are non-renewable nine-year term limits, retroactively imposed on Senators appointed after Oct. 14, 2008, and a voluntary framework for provinces to elect Senate nominees for consideration.
The government is arguing that Parliament can implement the Senate reform measures proposed in Bill C-7 unilaterally under section 44 of the constitution, and that the Senate can be abolished under the constitution’s amending procedure—section 38, which states that any changes to the constitution requires resolutions in both the House and Senate and support from seven Canadian provincial legislators which represents at least 50 per cent of the country’s population; it’s known as the 7/50 rule.
Including section 38, there are four amending procedures in the constitution relevant to questions regarding Senate reform: section 41 which requires unanimous consent in certain circumstances; section 42 which sets out types of amendments that would require use of s. 38; and section 44 which states that “subject to sections 41 and 42, Parliament may exclusively make laws amending the constitution in relation to the executive government of Canada or the Senate and House of Commons.”
Experts examining Senate reform efforts have often referred to the Supreme Court’s 1980 Upper House Reference, the last time the court weighed in on major Senate reform efforts. In particular, it refers to a quote from the court’s decision that, “it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation.” In the 1980 reference, the Supreme Court declined to rule on the question of whether Parliament could change the tenure of Senators, as there was no specific tenure attached to the question.
The government argues that the constitution’s amending procedures are written in “plain language” and give “clear guidance” on how to proceed with Senate reform. In its factum, the government also argues that Bill C-7 wouldn’t affect the “method of selecting Senators.” The bill proposes a voluntary framework for provinces to use in order to hold provincial Senatorial elections, the results of which would be used to draft a list of Senate nominees which the prime minister “must consider” in making a recommendation to the Governor General, who is ultimately responsible for appointing new Senators.
“The ‘method of selecting’ Senators is that set out in section 24 of the Constitution Act, 1867, which confers that authority on the Governor General, and it will remain so under any proposed reform,” reads the factum, which also highlights that the prime minister is not required to recommend Senate nominees elected by provinces.
The government also argues that nothing under section 42 would affect Parliament’s ability to unilaterally impose term limits and that “enhancing public participation in the appointment process” through provincial Senate nominee elections “will not inexorably lead to a Senate that competes with the House of Commons and produces legislative gridlock.”
“When the court looks at section 42(b) of the amending rules and looks at the words, ‘the method of selecting Senators,’ I don’t think it will accept the argument of the federal government that it doesn’t need provincial support for the change it’s going to make,” said Prof. Russell.
But Prof. Mathen said it depends on “whether the court really cares about the factors that the prime minister uses [in recommending Senators for appointment],” and pointed out that in the Persons Case of 1929 the British Privy Council said Canada’s constitution has to be capable of change. Prof. Mathen said there are “very attractive arguments” in favour of provincial Senate nominee elections, based on the prime minister’s “broad power of appointment.”
“The appointment of Senators, it’s in a sense so outdated and so inconsistent with our modern values that you have no democratic input, it’s possible the court could rely on a very technical understanding, which the federal government is saying, ‘we’re not actually changing the appointment power,’” said Prof. Mathen. “Sometimes the court allows them to make that formulistic argument, but sometimes the court says you can’t use loopholes to get around the spirit of what the constitution says.”
Prof. Russell said there’s “no way” the government can unilaterally abolish the Senate and without seeking unanimous consent.
“You’re taking 100 per cent of the power away. The Senate has full power to approve every law, and it was put there mainly so the provinces, the sections of the country, would feel some protection against the central government,” said Prof. Russell.
But Prof. Mathen said the government’s argument that the Senate can be abolished under the 7/50 rule is a “strong point.”
“Let’s say you can say the Senate can no longer introduce bills, that can be done with less than unanimity, so it’s not that big of a stretch to say that changes, actually abolishing the Senate could come under section 38,” she said.
Prof. Mathen said “one thing” the government has going in its favour “is that unanimity is a really punishing standard,” that the court may wish to avoid. But Prof. Mathen noted that “there are some strong arguments on the other side,” including the historic use of the Senate to protect the underrepresentation of smaller provinces in Canada.
Prof. Mathen said she thought the government had taken “a rather optimistic view of the comprehensiveness of part five of the Constitution,” and said it’s “hard to agree” with the government’s argument that unwritten constitutional principles, such as federalism, shouldn’t be considered.
Both Prof. Mathen and Prof. Russell said they thought the Supreme Court would find that Parliament can unilaterally remove property requirements for Senators, but not residency requirements.
“That’s just antiquated, it could be removed because it no longer has any relevance to today’s world,” said Prof. Russell.
Prof. Mathen also highlighted that Supreme Court Judge Morris Fish is set to retire this month, before the court will begin its proceedings on the Senate reform constitutional reference, currently set to begin in November.
“The court’s in a bit of a transitionary phase right now,” said Prof. Mathen. “We have so few precedents, post-1982 we have pretty much nothing, so it’s really hard to give any kind of prediction [of how the Supreme Court will rule].”
Original Article
Source: hilltimes.com
Author: LAURA RYCKEWAERT
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