The Supreme Court Senate reference: It's going well -

The Supreme Court Senate reference: It’s going well

Paul Wells on the PM’s setbacks


Guys, I’m pretty sure if we try hard we can get the PM to say something cranky about Liberal judges today in Question Period. I suspect he’s in a mood. His Supreme Court reference on changes to the composition of the Senate is having a lousy ride through the judicial process.

Setback 1: Two weeks ago the Supremes rejected a(n insane) request from the Justice Department that the top court not bother to receive legal arguments in the reference, a request the feds made on the ridiculous grounds that everything that could be said on this specific set of reference questions has already been said in more than a century of general debate on Senate-related issues.

Setback 2: Considerably more embarrassing for the government. There’s been a lot of speculation that the feds slapped together this Supreme Court reference in a bid to shut down the Quebec government’s own reference to Quebec Court of Appeal, for which hearings were scheduled this autumn. The Quebec government — both the current PQ government and its Liberal predecessor — is strongly opposed to any of the, ahem, many Senate reform projects the Harper government has considered, fiddled with, half-attempted, etc. etc. Harper figured there was no way the Quebec Court of Appeal reference could end well for him. The feds fired off another doomed request, asking the Quebec Court of Appeal to voluntarily suspend its own hearings, pending the Supremes’ opinion. Yesterday the Quebec Court of Appeal said no dice.

So the Quebec government’s challenge to the existing federal Senate-reform bill will be heard before the Supreme Court holds its own hearings. And those hearings will be real hearings, with several contradictory arguments from an array of intervenors. I’ve been wondering whether the Harper government was hoping it wouldn’t have to make its own explicit arguments. It could, indeed, decline to argue the case it sent to the top court. But I suspect it would then suffer a third setback, because the Supremes could appoint an amicus curiae, an independent lawyer who would act as “friend of the Court” to argue the point of view the feds had left orphan. (That’s what the Supreme Court did when the Quebec government boycotted the 1998 Secession Reference; lawyer André Joli-Coeur’s account of that episode is so cute I just want to hug him.)

We’ve been covering Harper’s unlucky relationship with Canada’s courts for a while here at Maclean’s. Here’s a good primer. He may have hoped he’d have a run of good luck with the Senate Reference. So far he’s crapping out.