Documents from the coming court battles over Senate reform

Paul Wells tracks down the arguments in the Bill C-7 debate


In my column for the latest issue of Maclean‘s, I write about the uproar over the Senate that began with Mac Harb and Patrick Brazeau and Pamela Wallin and Mike Duffy and is headed straight to the Supreme Court of Canada.

Most Canadians are not aware that the federal government has asked the Supremes’ opinion, via a so-called “reference” case, on a set of reform options. Still fewer are aware that there’s another reference, in Quebec Appeals Court, over the Quebec government’s challenge to the latest (of eight!) bill from the Harper government on Senate reform, C-7. The cases substantially overlap — so much so that the feds sent lawyers to invite the Quebec Appeals Court to drop its reference while the Supremes heard the federal reference. No dice. The Quebec reference will be argued in oral hearings in Montreal on Sept. 10 and 11. The federal reference will be argued at Ernest Cormier’s beautiful Supreme Court building on Nov. 11 to 13.

I trekked down to the Supreme Court building last week to read the documents that have so far been filed in the federal reference. And I’ve been on the phone to the Montreal registry of the Quebec Appeals Court. And thanks to the miracle of Scribd, I’ve got highlights for you. Let’s start with the white whale: the Quebec government’s “factum,” or summary of its legal argument, in its own appeals-court reference:

It’s in French. What we see is that it argues that no part of Bill C-7 is within the constitutional jurisdiction of the Parliament of Canada, acting alone. Bill C-7 seeks to shorten senator’s terms from near-permanent — they currently retire at 75 — to a single nine-year term. And the bill would implement elections in any province that has a vacant Senate seat. The governor general — meaning, in almost any conceivable case, the prime minister advising the GG — would be required to consider the result of such an election, though not to heed its result.

Quebec’s government argues that the latter nuance is meaningless, that the prime minister and his ministers have repeatedly said their aim is to make elected senators, and that together with the shorter terms this amounts to such a fundamental change in the Senate’s composition that Ottawa can only act in concert with at least 7 of the provinces, comprising half the country’s population.

The Quebec government’s factum amounts to an attempt to block any change to the Senate’s composition by the federal government acting alone. To back its arguments (in the Supreme Court this time, though they’re substantially the same arguments), Quebec has sought four expert analyses by leading constitutional scholars. Their papers are bundled in this volume:

I’m tickled to report, since the current Quebec government is sovereignist, that all four of its expert opinions come from Canadians living in other provinces. David Smith from the University of Saskatchewan makes substantially the same general point the Quebec factum does, as does Andrew Heard from Simon Fraser University. Scholars from the Univerity of PEI and Carleton University argue narrower points.

Any change to Parliament’s structure will bring out a lot of people who are worried that they’ll lose protections they’d counted on. Say hello to the Fédération des Communautés francophones et acadienne (FCFA), the group that advocates for legal rights of francophone populations outside Quebec. I don’t have the FCFA factum yet, but this document gives the gist of their argument: that Parliament can’t unilaterally change an institution that was designed to protect minority groups. The group’s documentation on this point goes back to Sir John A. Macdonald.

Of course, the feds have their own experts. The next volume contains an analysis (in English) from Christopher Manfredi, a McGill University political scientist who has worked with the government before, notably on a committee that advised on the nomination of David Johnston as Governor General. Manfredi’s paper…

… argues that the historical role of the Senate in protecting minority populations is overstated and will not be harmed by anything Bill C-7 does.

Basically no intervenor that I’ve read agrees with this analysis. Of course that’s no guarantee of whether the Court will. Among the dissenters is Serge Joyal, a Liberal Senator. The document he’s filed…

contains a Memorandum of Argument, essentially a preview of Joyal’s factum. He calls the changes proposed in C-7, and the notion that a federal government could implement those changes without any province’s or other group’s say-so, “a refutation of the nature of federalism that is at the heart of our Constitution.”

I plan to spend much of my autumn following these and other arguments for you, as these two court references wind their way through the system.



Documents from the coming court battles over Senate reform

  1. I find this an interesting issue and will be reading the final SCC judgment within moments of it becoming available, and even i do not envy Mr. Wells this task.

  2. Quebec will try to block any change, no matter how beneficial and reasonable, unless its provincial government is bribed with more power, jurisdiction, money, or whatever else they’re lusting after at any particular time.

    • That has nothing to do with it. The SCC does not decide cases on whether Quebec is bribed with more power etc. This has gone too far for the government to hold out for that.

      Not that I accept your premise in the first place, which is just bigotry.

      • Heh heh heh… Successive provincial governments of Quebec have repeatedly stood against any constitutional change unless their government received excessive powers, jurisdictions, authority, or money.

        You might quibble about whether their demands be excessive or not, but it is undeniable that they see constitutional negotiations on anything as an excuse to blackmail the rest of the country for special status.

        • you’re still doing the thing she pointed out you were doing.

          • Stating the political reality is what I’m doing.

            Quebec would not bother to present a factum unless they saw an opportunity to prevent constitutional reform.

          • Actually, they are arguing FOR constitutional reform. As in, the changes sought by Harper cannot be made without it.

          • Hardly, the only reform they’ve ever argued for is to privilege Quebec and its provincial government vis a vis the other provinces, even more than they already privileged.

            They don’t actually care about whether the Canadian Constitution be reformed to operate better, just whether they can screw over the rest of the country to an even greater extent.

          • How is it you know all this stuff and believe it so fervently? At the least you’ve lived there and or speak French right! I mean you sound like an expert or summat.

          • Je parle facilement Francais, et j’habite le Canada depuis suffisament d’annees pour connaitre bien les moyens de negotier typiquement trouvees au sein du gouvernement provincial du Quebec.

          • Have you read the article? You know, the parts where the government of Quebec is arguing the only way to do what Harper is doing is constitutional reform?

            In any event, I am done with you. I learned long ago not to try to reason with someone who is unreasonable. Bigotry is not reasonable, and since everything you say is based on bigotry, there is no reasoning with you.

            Good luck with that.

          • Heh heh heh… the only thing the government of Quebec is trying to do is force any and all reform int a forum where they can block it unilaterally unless bribed.

          • I agree with everything you said here. It’s hard to discuss anything with people firmly wedded to some illogical position but you made a great effort.

        • During constitutional negotiations, all provinces negotiate for what they believe will benefit their province. What kind of nonsense is the use of the terms “bribed”, “excessive power” and “lusting”?

          Bigotry. That is what it is.

          But hey, it is people like you that make people in Quebec feel they have to fight hard to protect their language and culture, so thanks for contributing to the unity of our country and stuff…

          • Peple who negotiate for the benefit of the country are called statesmen. Those who negotiate for their province are called parochialists.

          • You do understand the point of a *representative* democracy, right?

          • You need to understand the concept of statesmanship.

    • An amendment to the Constitution requires the agreement of a minimum of 7 provinces which represent 50% of the population. Quebec alone doesn’t have a large enough population to prevent a constitutional amendment from passing.

      • Yeah but you can’t tell me that Quebec Sovereignists don’t jizz themselves at the thought of being “humiliated” in constitutional negotiations.

        • Wring people. That’s Poilievre problem when he’s sitting at the cabinet table, according to Stephen

  3. Good to see the background work and the source material behind the columns. Would be great to see more journalists doing this, particularly columnists.

  4. This seems like a lot of trouble over an expense account scandal. Why not just start asking for receipts?


    Although I remain a big fan of the late PET I’ve been struck a number of times by the similarities , at least in arrogance if nothing else, between Harper and Trudeau. But they’re supposed to be matter and anti matter right! Yet stuff like this continues to surface from time to time. Sometimes me doth think Mr H doth protest too much about the late Mr T, after all, they say imitation is the sincerest form of flattery.
    No idea who the author was/is. I was just amused to come across this.

    • Trudeau sought to proceed unilaterally only after a decade of negotiations with the provinces had failed. Harper has never attempted serious dialogue with the provinces on this or any other major issue.

      • That seems a reasonable point to make. It wasn’t only him trying the constitutional negotiation route of course. I believe his reference to the courts came after the Victoria conference fell through. Another difference is Trudeau didn’t try ineffectually to get his reforms through for 7 years, while endlessly short circuiting his own legislation in the House.
        But I still think there are odd similarities between the two men, given they’re supposed to be polar opposites. In other ways Trudeau was a visionary, something Harper certainly isn’t.
        Edit: Hmmm, maybe not. The Victoria conference was a good 8 years earlier than Trudeau’s senate reference.

    • Interesting article. The article says Harper is following in the footsteps of Trudeau on Senate reform, even while claiming to favour a different more “open federalism”. One difference I see between Harper and Trudeau is that Trudeau would never have agreed with the style of federalism Harper claimed to favour and never made any pretence.

      He was always a very strong federalist, and although I remain a big fan too, I thought he was rather extreme in that regard, and was disappointed when he opposed Mulroney’s constitutional reform. I think Canada missed the boat on that. He didn’t like the idea of “distinct society” or any special status for Quebec, or what he considered weakening of the federal government. I think he saw it as pandering, not to Quebec, but to Quebec nationalism and sovereignty objectives. He would have been even more appalled by Harper’s “Quebec nation” resolution and Harper’s so-called “open federalism” as it’s described.

      I think Trudeau believed in what he did and was not likely to compromise for political gain. Some of the criticism of him, including from Harper, strikes me as dishonest and contrived for political purposes.

      • Whatever criticism that can be justifiably leveled at Trudeau, lack of consultation isn’t one of them. If he held only one constitutional conference it would have been a 100% improvement on SH’s record.

        • That criticism definitely can’t be made against Mulroney either, or, I think, recent PM’s, since consultation with everybody and his dog came into vogue. He did huge consultations. I think he did one too many, the referendum, after he had all the key government and political players on side, all the provinces, as I recall.

          I can never find out how Harper, the supposed Senate reformer, justified not supporting the Mulroney proposal, which included the Triple E Senate. A lot of opposition was to the meaningless “distinct society” clause, but he passed the “Quebec nation” resolution which is stronger. He also said, in effect, promoting conservative ideology was more important than how many national governments we have, so I don’t think he ever cared much about whether such moves play into the hands of sovereignists and/or thought they did (the P. Trudeau argument against the proposal).

          The only quote I could find about why Harper opposed Mulroney’s constitutional proposals, including Triple E Senate and the meaningless “distinct society” clause, was some statement about men in suits ignoring the interests of real people, which really means lack of consultation, which is absurd given all that took place, and given that he seems to avoid consultation or straight forward communication himself, any way he can.

          I don’t necessarily disagree with Harper’s reasoning on any of this to the extent I understand it, or a lot of what he’s done so far, or even aspects of his ideology. I hate his party’s rhetoric, political tactics, smear campaigns and “ends justify the means” approach, the means including dishonesty and even tactics I consider divisive and/or immoral. I don’t like what they try to do re Canadian identity and image in order to stamp their supposed label on it, replacing the supposed Liberal label, which very much was also the PC label with contributions from the NDP and others. That “label” was even the one the Bloc prefers, except they want to stick it on a separate or more independent Quebec. From my point of view that label was Canada’s label, not any one party label.

          • I can’t edit, so just to be clear, in the first paragraph I was referring to Mulroney’s extensive consultations and political consensus on the constitutional proposals that included a Triple E Senate and a “Quebec as distinct society” clause, prior to defeat by referendum. I believe the forces that defeated it where Quebec nationalists and included the Harper conservative political movement which was strong in the West and elsewhere to some extent, among whatever others.

  6. Thank you, Paul Wells, for giving us this additional background info. The real obstacle to senate reform had to surface if the will is there. It seems that will is there now. Keep up the good work in that regard.

  7. You’re not generally considered to be a lot of fun at parties, are you?