OTTAWA – Two western provinces are backing up the federal government’s argument that it should be relatively easy to reform — or even abolish — the Senate.
Alberta and Saskatchewan weighed in Wednesday during the second day of a historic Supreme Court hearing that will determine how much, if any, provincial approval is required to change the maligned, scandal-plagued upper house.
The federal government maintains it can unilaterally impose term limits and create a “consultative election” process for choosing senators, without any provincial input.
Both Alberta and Saskatchewan agree with Ottawa’s position on the election of senators.
Saskatchewan — but not Alberta — further agrees the federal government could also unilaterally impose a term limit, provided the term is at least 10 years.
Both western provinces also support the federal position that outright abolition would require the approval of seven provinces with 50 per cent of the population.
The vast majority of provinces maintain the hurdles should be set much higher: 7-50 provincial approval for term limits and consultative elections, unanimous consent for abolition — a position some justices have suggested might make any change impossible.
Saskatchewan counsel Graeme Mitchell challenged the assumption of other provinces that the federal government is trying to indirectly create an elected upper house — something it couldn’t do directly without substantial provincial consent.
Most provinces take the view that “if it walks like an election and squawks like an election, it’s an election,” Mitchell said.
“That is simply not true … It’s simply a practical measure.”
What Ottawa is proposing is really just “a consultative referendum to determine who would be a suitable nominee to be appointed to the Senate,” Mitchell maintained, arguing that the prime minister would not be bound to appoint the winners of Senate elections.
Alberta is the only province to have actually held a number of Senate elections and the province’s counsel, Margaret Unsworth, noted that not all the winners have ended up being appointed to the upper house.
“I’m not afraid to say that it’s an election (that Ottawa is proposing),” Unsworth said.
“It’s an election to a list which our premier will give to the prime minister with an expectation that the winners of that election who are now on the list will be considered for appointment …That’s really all that Alberta suggests these bills do.
“… And if the provincial and federal governments can not consult the electorate, then the result is really the constitutionalization of the current process, whereby the provinces, the regions and the population have no input into who sits in the Senate.”
However, Newfoundland and Labrador counsel Philip Osborne scoffed at the western provinces’ attempts to play down the import of the proposed reforms.
“The ultimate purpose of this legislation is to allow voters to choose their senators,” he said, adding that failure to appoint the winners would fly in the face of democratic principles and could be open to legal challenge.
On the question of abolition, Osborne argued that only five federations in the world do not have a second parliamentary chamber: the United Arab Emirates, Venezuela “and three small island federations with populations of less than one million in total.”
Abolishing Canada’s Senate with the approval of only seven provinces would mean the views of small provinces could easily be overlooked, Osborne said, even though the Senate was created precisely to protect the interests of less populous regions.
While unanimity may be difficult to achieve, Osborne said: “the (constitutional amending) formulas are tough for a reason and that’s often to prevent amendments.”
The top court’s hearing wraps up Thursday with a presentation from two “friends of the court” appointed by the justices to give them impartial advice, followed by a brief final submission from the federal government.
In a previously filed written submission, the two court-appointed friends — Daniel Jutras and John Hunter — agreed that abolition would require unanimous consent and term limits would require 7-50 approval.
But the two disagreed on the consultative election proposal. One, not identified in the factum, argued that Ottawa could act unilaterally to create a strictly non-binding, referendum-like consultation, while the other said 7-50 provincial approval would be required.
The Supreme Court justices are expected to take six months to a year to mull over all the arguments before issuing a ruling.