Senate reform: A look at the documents

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.


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