Government lawyers representing Justice Minister Rob Nicholson (Niagara Falls, Ont.) in his capacity as attorney general of Canada have also disclosed in a court motion that the government is asking the Quebec Superior Court of Appeal, which is hearing a Quebec government request for a ruling on whether a federal government bill attempting to implement the Senate reforms is constitutional, to suspend the case and defer to the Supreme Court of Canada.
The motion filed at the Supreme Court on Feb. 6 also asks the court to put the federal constitutional reference on a list of cases being set to be heard by the court, which at the current time is scheduling cases into the court’s fall sessions this year.
The government served notice at the Supreme Court on Feb. 1 that it will ask for an opinion on whether Parliament alone has the constitutional authority to limit Senate terms, which currently end when Senators reach age 75, to anywhere from eight to 10 years or after one or two Parliaments, which are now set at four years for each Parliament under fixed-election date laws which the government introduced in the last Parliament.
“The Government of Canada has brought this reference to settle any perceived legal uncertainty concerning proposals to reform or abolish the Senate,” says the motion filed by Justice Department lawyers Robert Frater, Christopher Rupar, and Warren Newman.
“It is highly desirable that the reference proceed in the near future to permit the court’s opinion to inform this important debate,” the motion says.
Noting that the Quebec government has asked the Quebec Superior Court of Appeal for an opinion on the constitutionality of the federal government’s Senate reform legislation, Bill C-7, the motion goes on to say “since a final and authoritative pronouncement can only come from this court, it would expedite the democratic process, and conserve judicial resources, to proceed as soon as practicable in this court.”
Quebec launched the case last May, and the federal motion at the Supreme Court of Canada says final arguments in the Quebec court are expected to go into November. Either side could seek an appeal in that case to the Supreme Court of Canada.
If the Quebec case halts, there would be no direct court ruling on whether the government’s Bill C-7 is constitutional.
Unless the Supreme Court agrees to set aside filing schedules laid out in the court’s standing rules, the deadline for all submissions from the federal government and responding arguments from provinces that will likely intervene would be Aug. 1.
Hearings would begin much later, with an opinion on the reference questions unlikely until sometime next year.
A media assistant to Mr. Nicholson did not respond to emailed questions from The Hill Times about the motion, or when the government hoped the reference would be heard. Experts have cited constitutional reference cases could take between 18 and 24 months.
The NDP, however, noted the opposition parties have been asking the government to refer its Senate reform legislation, Bill C-7, to the Supreme Court since it was introduced in the House of Commons soon after the May 2, 2011, federal election, and said the majority-governing Conservatives could have avoided the unusual step of asking the Quebec Superior Court to suspend its reference case had they responded to the opposition requests earlier.
Opposition parties had also urged the government to refer previous Senate reform bills to the Supreme Court, following expert testimony and arguments from provincial governments that, at the least, a minimum of seven provinces with 50 per cent of Canada’s population would have to agree to the Senate term and senator selection changes under amending provisions enshrined in the Constitution.
“The federal government created the situation of putting the Quebec Court of Appeal in this position, by delaying so long,” NDP MP Craig Scott (Toronto-Danforth, Ont.) told The Hill Times. “They could easily have referred the case earlier, and the Quebec government would not have had to do it,” he said.
The government launched the court case as a controversy over residency and travel expense claims for several senators was beginning to heat up on Parliament Hill.
Mr. Scott said that, considering the government’s earlier refusal to settle the constitutional questions, the sudden reference to the Supreme Court could be an attempt to distract attention from the uproar over expenses, which primarily centre on three star Senators Prime Minister Harper (Calgary Southwest, Alta.) named as he filled 54 Senate vacancies from 2007 onward—former CTV journalists Senator Mike Duffy and Senator Pamela Wallin and Quebec Senator Patrick Brazeau, forced to take leave from the Senate last week after Gatineau police charged him with sexual assault and assault following a domestic violence 911 call.
“It could be an attempt to change the channel,” Mr. Scott said.
Ironically, the uproar over expenses, which prompted the Senate to bring in auditing firm Deloitte to conduct a forensic audit on travel expenses and residency claims for the three Senators, as well as Liberal Sen. Mac Harb, fuelled opposition criticism of Mr. Harper for failing to take earlier action at the Supreme Court to get reform bills through, while he appointed a chain of Conservatives, including some of his own top former aides, to plum Senate seats as the legislation stalled in Parliament.
Aside from the questions about Senate term limits and elections of Senate nominees, who would still have to be appointed by the Prime Minister without further constitutional changes, the reference asks the Supreme Court whether it would require either support from seven provinces with 50 per cent of Canada’s population, or unanimous support from all 10 provinces, to abolish the Senate.
A Conservative in government has told The Hill Times, however, that the government believes abolition would require unanimous consent, and the aim was to demonstrate that the longstanding NDP call for abolition ignores constitutional amending requirements.
Liberal MP Justin Trudeau (Papineau, Que.) told reporters this week a sudden move toward an elected Senate would result in “constitutional upheaval” and subsequent political and Parliamentary turbulence because of the distribution of Senate seats under the Constitution.
The Constitution now allots 24 seats to the four western provinces, each with six seats, 24 each to Quebec and Ontario, 24 to the three Maritime provinces, 10 each for New Brunswick and Nova Scotia and four for Prince Edward Island, and six to Newfoundland and Labrador, with one each for the three northern territories.
The Constitution requires approval from the House of Commons, the Senate, and at least seven provinces with 50 per cent of Canada’s population to change the powers of the Senate and the method of selecting senators, and unanimous approval from Parliament and all 10 provinces to amend a constitutional guarantee that the number of MPs each province has will never be less than its number of Senators, which, it appears, would be meaningless if there were no senators.
Though another clause says Parliament may exclusively make laws amending the Constitution in relation to the executive government of Canada or the Senate and the House of Commons, it is subject to the requirements for majority provincial agreement on changes to Senate powers and terms and unanimous agreement on the clause guaranteeing no fewer MPs than Senators for each province.
Original Article
Source: hilltimes.com
Author: TIM NAUMETZ
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