Two of the most controversial cases heard by the Supreme Court of Canada recently both happen to involve lines of work not always held in high repute. There was the prostitution case, in which the court ruled last month that laws around the sale of sex violate the Charter of Rights and Freedoms by exposing prostitutes to grave danger and gave the federal government a year to reform the laws. And then there’s the matter of the Senate. Prime Minister Stephen Harper has asked the judges, in what is called a “reference,” to give their opinion on his plan to set term limits for senators and appoint them based on the results of elections. The key question is: Can the federal government make these reforms unilaterally, or does it need most, or even all, of the provinces to agree?
Although the prostitution case was fraught with moral and law-enforcement issues, the political stakes in the Senate reference are far higher. For years, Harper has touted updating the upper chamber as a core element of his party’s “democratic reform” agenda. Public attention to the issue was heightened by 2013’s prolonged controversy over senators’ expense claims and the bungled efforts of Harper’s own office to manage—critics would say cover up—the most politically damaging elements of what turned into a full-blown scandal. So the dream outcome for Harper in the reference case would be for the court to give him an unequivocal green light, allowing him to claim success, after many previous bids at Senate reform, going back many decades, failed utterly. Few experts, though, predict the judges will grant him anywhere near all that he’s asking.
But it’s possible Harper will secure a partial victory. During the court’s hearings on the reference last month, federal government lawyers argued that Ottawa has the constitutional power to act alone in setting a term limit of nine years for senators. A key bit of history: In 1965, the federal government imposed mandatory retirement at 75 for senators, who previously enjoyed lifetime appointments, without seeking provincial agreement. University of Ottawa law professor Adam Dodek calls that a “strong precedent.” And the judges seemed interested, Dodek notes, in the fact that most senators now serve about a dozen years, not so much longer than the proposed limit. Still, the court also heard compelling points against term limits, including Sen. Serge Joyal’s argument that quick turnover would allow any long-serving prime minister filling the vacancies to appoint virtually the entire upper chamber.
If Harper stands a decent chance of getting the answer he wants on term limits, some expert observers say the odds are against him on elections. Currently, senators are appointed by the Governor General on the Prime Minister’s advice, although the choice is really, of course, entirely the PM’s. Harper’s legislation would encourage provinces to hold Senate elections and require prime ministers to consider nominating the winners, though no future PM would be bound to do so. Federal lawyer Robert Frater said there’s a world of difference between instituting binding Senate elections, which would require provincial approval, and non-binding votes, which he said Ottawa can do on its own. “This is our whole point,” Frater told the court. “It is a change to the Prime Minister’s decision-making process, which he is free to make.” But Justice Rosalie Abella snapped back: “It is a change to the method of appointing senators … a fundamentally different type of consultation.”
McGill University law professor Robert Leckey detected little indication that the judges were persuaded by the federal government’s claim for its power to take this partial step toward democratically legitimized senators. “My hunch, based on the hearings,” Leckey says, “is the government is not going to get the non-binding elections.” He predicts the court will say that changing the way senators are chosen requires a constitutional amendment approved by at least seven provinces representing half Canada’s population or more. On the more radical idea of abolishing the Senate entirely—which is not Harper’s first choice, but his reference asks the court’s opinion on it anyway—Leckey and Dodek both expect the judges to say unanimous provincial approval would be required.
Overall, the outlook for the Conservatives in the case is not terribly promising. They might be allowed to set term limits, although that’s far from assured, but it will be surprising if they are allowed to press ahead with elections, unless they’re willing to first coax most provinces onside. In the past, Harper has shown absolutely no appetite for that sort of constitutional wrangling with the premiers. As for the nuclear option of abolition, it is an even less likely project, given that securing unanimous provincial consent would be dauntingly difficult. Given all the obstacles, some of Harper’s sharper critics are amazed he has tried to pursue this reform path at all. “There is just such a lack of constitutional sensitivity in this that it is almost mind-boggling,” says David Smith, distinguished visiting scholar in politics and public administration at Ryerson University in Toronto.
Some critics of Harper’s Senate strategy suspect that political calculations, not a genuine expectation of winning, underpin it. Matthew Mendelsohn, director of the Mowat Centre at the University of Toronto’s public policy school, predicts that, after the court issues its reference decision, the Conservatives are most likely to admit defeat and blame others, perhaps including judges, some provinces and recalcitrant Liberal senators. “They had a commitment to do [Senate reform],” Mendelsohn says. “They are playing out the final period knowing the outcome of the game. Then they will look for villains, point the finger and say they tried their best.”
Another possible tack that’s less likely but Mendelsohn says can’t be ruled out, is that Harper will attempt what he calls a “Hail Mary on abolition.” This politically risky play might see the federal Tories allying themselves with premiers who want the Senate scrapped, notably Saskatchewan’s Brad Wall, whose government recently repealed legislation that would have allowed for election of Senate nominees and instead passed a motion calling for getting rid of the upper chamber. Some prominent federal Tories are already in the abolition camp, including Finance Minister Jim Flaherty. Others are staunchly against abolition, including Employment Minister Jason Kenney, who stresses how hard it would be to persuade the provinces to agree, and touts the benefits of a reformed Senate better representing regional interests.
Nobody can be sure when the court will deliver its opinions on the Senate reference, although most observers expect it sometime in 2014. (Leckey said there’s no guarantee the judges, if they are having trouble coming to a consensus, wouldn’t let their deliberations stretch into 2015.) This sort of reference case is rare. There was the 1981 patriation reference, in which the court ruled that convention required Pierre Trudeau’s government to secure substantial consent from provinces to bring the Constitution home from Britain and amend it; and the 1998 secession reference, in which the court said Ottawa would be obliged to negotiate Quebec’s exit from Canada only if “a clear majority” of Quebecers voted to separate on “a clear question” in a referendum.
Dodek says the Senate reference is potentially at least as important as those previous landmarks. “The secession reference was about how you go about making a change to the Constitution that absolutely nobody envisioned and the Constitution doesn’t speak to at all,” he says. “This case is about how you make changes to the Constitution about things that we do envision.” During last month’s hearings, several judges suggested those wider implications by raising what sounded like outlandish scenarios. If the Senate can be abolished, what about the House of Commons? If consultative elections on Senate appointments are not such a big leap, why not the same sort of votes for federally appointed judges?
All these exchanges, Dodek says, showed the country’s top judges fully testing the arguments about reforming the Senate. Even if the conclusions they reach effectively halt the current bid for reform, their reasoning might well establish clearer rules for any future attempt to alter Canada’s key governing institutions. “This is the first big opportunity,” Dodek says, “to set out how you go about making fundamental changes to the Constitution.” The immediate reaction is bound to be all about the messy, divisive, frustrating politics of the Senate. The lasting impact, however, could be about how Canadians go about reforming the way they are governed from here on in.