High court hears final arguments on Senate
OTTAWA • Arguments that the Senate can only be abolished with unanimous consent of the provinces, and that provincial input is needed to reform the Red Chamber, are “wishful thinking,” a federal government lawyer told the Supreme Court of Canada Thursday.
Robert Frater, counsel for the Attorney-General of Canada, told the court that many provincial arguments lead to “uncertainty” and “inaction” on Senate reform. He said the federal government’s stance — that it can unilaterally reform the Senate and only needs consent of seven provinces with 50% of the population to abolish it altogether — is “a comprehensive approach that should permit meaningful action on reform to the Senate instead of 135 more years of talk.”
Mr. Frater’s comments came on the final day of hearings to decide the future of the Senate. The federal government asked the top court in February to spell out how — or if — Canada’s upper house can be reformed or abolished. Eight justices have now spent three days listening to arguments from the provinces, territories, francophone groups and individual senators.
All provinces except Alberta, British Columbia and Saskatchewan believe unanimous consent is needed to abolish the Senate and the majority feel that substantial reform — such as the introduction of senator elections or term limits — requires approval of at least seven provinces representing 50% of the population (the general formula for amending the Constitution).
“What came out over the course of the three days of hearing is just how difficult some of these questions are and the high stakes that are involved,” said Adam Dodek, a law professor at the University of Ottawa.
“This decision isn’t only about the Senate, it’s about how you make fundamental changes to the Constitution.”
On Wednesday, after Saskatchewan counsel Graeme Mitchell sided with the federal government and said complete provincial agreement is not needed for the Senate to be abolished, Justice Louis LeBel asked whether that precedent would mean Canada could be turned into a dictatorship without the consent of all provinces. Mr. Mitchell called that “unlikely.”
Saskatchewan’s provincial assembly unanimously passed a resolution last week calling for abolition of the Senate and Mr. Mitchell told the court that the Red Chamber is “beyond repair” and needs to be scrapped.
Prior to Mr. Frater’s brief remarks Thursday, the courts heard from constitutional experts hired by the Senate to offer their expertise.
The two lawyers agreed that abolition requires unanimous consent of provinces and that implementation of senator term limits would require consent of seven provinces representing 50% of the population.
But the lawyers did not agree on the impact of consultative elections on the Senate.
“The prime minister can get sources for guidance from any source he or she wishes. He can talk to his friends, political parties, activists, he can read petitions, he can use a Ouija board, the only thing he can’t do is consult the electorate. That’s a rather remarkable proposition,” said expert John Hunter, who argued that implementing nonbinding elections “is not a matter of constitutional law at all.”
But expert Daniel Jutras maintained that “if a senator is appointed following an election, he is an elected senator; it is a qualitative change to the position of senator, it is not accessory, it is fundamental.”
The court’s decision is not expected for several months.