Federal lawyer asserts right to reform Senate unilaterally
Unanimity of provincial consent ‘wishful thinking’, counsel says
Arguments that the Senate can be abolished only 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 on 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 needs consent of only seven provinces with 50 per cent 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.”
Frater’s comments came on the final day of hearings to decide the Senate’s future. The federal government asked the top court in February to spell out how — or if — Canada’s upper house could 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 per cent of the population (the general formula for amending the Constitution).
“What came out over the course of the three days of hearings 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. Mitchell called that “unlikely.”
Saskatchewan’s provincial assembly unanimously passed a resolution last week calling for abolition of the Senate and Mitchell told the court the red chamber was “beyond repair” and needed to be scrapped.
His remarks didn’t sit well with francophone groups or the territories, which argued Wednesday the Senate plays an important role in protecting minorities that aren’t well represented in the House of Commons and that would likely lose representation if senators were elected.
Prior to Frater’s brief remarks Thursday, the courts heard from constitutional experts hired by the Senate to offer expertise. The two lawyers agreed that abolition of the red chamber requires unanimous consent of provinces and that implementation of senator term limits would require consent of seven provinces representing 50 per cent of the population.
But the lawyers did not agree on the impact of consultative elections on the Senate.
Expert John Hunter argued that implementing non-binding elections “is not a matter of constitutional law at all.”
“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,” Hunter said, adding that the prime minister should also be able to consult the electorate through an election if he wishes.
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.”
University of Ottawa law professor Carissima Mathen said it’s difficult to tell what the justices will decide on the issue of senator elections.