The Supreme Court Senate reference: Hope and hard work - Macleans.ca

The Supreme Court Senate reference: Hope and hard work

Paul Wells on a court case ‘straight out of central casting’

by
(Adrian Wyld, The Canadian Press)

Everyone who argued at the Supreme Court today in the federal government’s reference on Senate reform was straight out of central casting. The Quebec lawyer was elderly, crusty and wise, a sort of Laurentian Morgan Freeman. The Ontario lawyer was crisp and not terribly interesting. The Nova Scotia lawyer began by listing everyone he agreed with.

And the federal lawyers? They looked a little like the junior officers on the command decks of Imperial star destroyers who keep getting strangled by Darth Vader in The Empire Strikes Back. Those guys faced a similar mismatch between their instructions and the task at hand. In the present case, the federal Justice Department lawyers were sent to their task with a news release from Democratic Reform Minister Pierre Poilievre seeking “a legal instruction manual on Senate reform and Senate abolition. Canadians have waited 146 years for the Senate to change,” Poilievre continued. “This reference to our nation’s top jurists will light the way.”

Unless it doesn’t. Behind the lawyers were their federal government employers. In front was a row of unimpressed justices in red ermine. Between them, that rock and hard place provided the sort of comfortable fit they always do.

“Are you seriously suggesting,” Justice Thomas Cromwell interrupted federal lawyer Robert Frater at one point, “that the implementation of consultative elections for a Section 96 judge would not have the effect of amending the constitution?”

Let us translate. Frater had been arguing, on the Harper government’s behalf, that “consultative elections” to select Senators would not be a big deal, as the elections would only offer advice to the Privy Council — the government — which would in turn advise the Governor General, and that both would be free to ignore the advice. So no the change could be implemented through simple federal legislation, without consulting several provinces or seeking their approval. Cromwell wanted to know whether other federally-appointed officials, such as provincial Superior Court judges, could also be elected. Frater strode boldly into the trap Cromwell had set for him. Sure they could, he said. Then Cromwell leaned forward and bit Frater’s head clean off.

The thrust of that whole exchange was that Cromwell seemed to be arguing that Ottawa sure does need some amount of provincial input and approval before implementing elected senators. Other justices seemed, equally clearly to my ears, to argue that term limits for senators are also too big a change to be passed unilaterally by the feds. (“You can never tell what a judge is thinking by the questions he asks,” I wrote once in The National Post during an earlier set of Supreme Court escapades. A veteran lawyer wrote to me: “You can always tell what a judge is thinking by the questions he asks.”)

The first day’s arguments will be followed by more on Wednesday and Thursday. Almost none of what happened was a surprise. There are two schools of thought on the manner of Senate reform (as opposed to its substance): some would like it to be easy, while others would like it to be the product of a broad national consensus. By “some” here, I mean “the Harper government,” and by “others” I mean “just about everyone else.” Federal lawyers are urging the Supremes to advise that Senate elections and term limits can be implemented by Parliament acting alone. They also want Senate abolition to be declared possible with the consent of as few as seven provinces.

Ontario and Quebec argued today—and the Quebec Appeals Court has already ruled—that term limits and elections require the consent of at least seven provincial legislatures representing half the national population. And they argue that abolishing the Senate would require unanimous provincial consent.

This would be really hard, and therefore a drag. It fell to Jean-Yves Bernard, the Quebec government lawyer, to chide anyone who would say that’s a reason to prefer federal unilateralism. It’s not because a given path would be difficult that it would not still be the required path, Bernard said. “Sure, let us do it, if it is what we want to do,” he said about reform projects, “but let us do it in conformity with the Constitution.”

The specific constitutional document Bernard was referring to (Canada has a few), of course, was the Constitution Act, 1982 with its amending formula. This is the constitution Quebec is sometimes said to have rejected. Its lawyer does not seem to have gotten that memo. Bernard’s argument exactly mirrored the position various federal governments have defended with regard to secession since 1997: that it should be possible, but can only be done according to the rules of constitutional amendment. I expect Bernard’s remarks to be quoted someday in some legal challenge over secession.

But what’s sauce for one goose is sauce for all ganders. It is fine for the Harper government to want Senate reform only if it can be done without great difficulty; but that’s a statement of druthers, not a case in law. The justices seem (only seem; we won’t know until they deliver an opinion, sometime in the new year) to prefer a thornier set of requirements. First ministers’ meetings, endless consultations, high-wire diplomacy among heads of government, an inherently unpredictable outcome. That reads like a catalogue of everything Harper likes least and hopes to avoid. That consideration does not seem to be weighing heavily in the Supremes’ deliberations.