As the Senate turns: Accountability, courage and reform

Quebec Court of appeal declares C-7 unconstitutional

Tom Flanagan argues that Hugh Segal has demonstrated courage in questioning the move to suspend Mike Duffy, Patrick Brazeau and Pamela Wallin from the Senate (Flanagan also argues that the public should be grateful Mr. Duffy spoke out), while Lori Turnbull considers the independence of senators and the nature of ministerial accountability as it pertains, in this case, to the Prime Minister.

Former government Senate leader Marjory LeBreton will apparently respond this afternoon to Mr. Duffy’s remarks of Tuesday evening and the Senate could proceed today with the motions to suspend any or all of the three senators, with Mr. Segal conceding that the government will likely have enough votes to immediately suspend them, rather than opt for the Liberal proposal of committee hearings.

Meanwhile, the Quebec Court of Appeal has ruled on a reference from the Quebec government to judge the constitutionality of Bill C-7, the Harper government’s most recent legislation for Senate reform. The court has ruled that to implement Senate elections would require the approval of at least seven provinces representing 50% of the population.

On the whole, when the real meaning and true character of Bill C-7 is analyzed, it unquestionably constituted an attempt to significantly amend the current method of selecting senators, that is, an appointive process until 75, the age of retirement. Such an amendment could only have been implemented as the result of the federal-provincial consensus paragraph 42(1)(b) of the Constitution Act, 1982 contemplates.

The agreement of a majority of the provinces based on the 7/50 formula would therefore have been required.

Moreover, it would have been aberrant to impose Bill C-7 on the provinces when it required the holding of elections conducted in accordance with provincial laws, with independent candidates or those endorsed by provincial political parties, without having discussed it with them and in the absence of a consensus that the 7/50 formula affords them.

Finally, Bill C-7 would be unconstitutional in that it permitted the amendment of the method of selection of senators as the provinces may choose at the choice of the province concerned, which, in 1982, the framers sought to prevent by specifying in subsection 42(2) of the Constitution Act, 1982 that an amendment adopted relative to a matter contained in subsection 42(1) applies throughout Canada, without any possibility of exclusion. The framers intended that amendments made with respect to the matters mentioned in paragraph 42(1)(b) be uniform and ones of general application.

The judges also state that abolition would require the unanimous consent of the provinces.

You can download the entire ruling at the link here.

The Supreme Court’s Senate reference is still to be heard with hearings scheduled to take place three weeks from now. I’ve summarized the provincial positions on the questions before the court here.