Supreme Court and Senate: Serge Joyal still knows what you did that summer

Paul Wells on second day of arguments

Adrian Wyld/CP

The second day of arguments at the Supreme Court of Canada on the federal government’s Senate reference was given over to arguments about the intentions of the framers. Ah, the framers. Every constitution’s got some: those wise fellows (almost always fellows) in dusty portraits, hallowed because the document they wrote informs the relationships among citizens down to today. In the U.S., the Founding Fathers were hard at work in 1787. Arguments about what they intended, and whether that should inform constitutional interpretation, are at the heart of Supreme Court debates to this day.

In Canada we get less of that because for nearly a century judges have told one another that Canada’s constitution is “a living tree,” which in extreme cases can seem to mean there’s no point reading the thing. Canadian conservatives are not fond of the notion.

But on Wednesday the debates got very specific, and they had to do with the intention of a particular set of Canadian constitutional founders: those who negotiated the Constitution Act, 1982, with its very specific amending formula. Some amendments to the constitution could henceforth be done by Ottawa alone; others by Ottawa and one or a few affected provincial legislatures; still others by Parliament cooperating with 7 provinces accounting for half the country’s population; and yet others would require the unanimous consent of Ottawa and every provincial legislature.

Where does the Senate fit in there? It’s not obvious. The composition of the Senate is not among the subjects enumerated in Part 5 of the Act, the one dealing with amending procedures. So you kind of have to guess how you’re going to go about abolishing the Senate, if you wanted to. Most provinces are arguing this week that it would require the unanimous consent of every provincial legislature, plus the federal Parliament. Alberta and Saskatchewan are saying it would take only 7 provinces with half the country’s population.

Things quickly got silly. As Sean Fine’s Globe account describes it:

Justice Thomas Cromwell of Nova Scotia, after listening to lawyer Nancy Brown present B.C.’s views, said, “Your position is that we could abolish both the Senate and the House of Commons” with the approval of seven provinces representing half of Canadians?

“Exactly,” Ms. Brown replied….

Justice Andromache Karakatsanis of Ontario noted that, just like abolition of the Senate, the right to vote and to have elections is not mentioned in the rules for amending the constitution. She asked lawyer Graeme Mitchell, representing Saskatchewan, whether the right to vote and the existence of elections could be ended with the consent of seven provinces with 50 per cent of Canada’s people.

…When Mr. Mitchell agreed, Justice Louis LeBel of Quebec jumped in. “So Canada could be turned into a dictatorship” under the section that provides for amendments by a majority of provinces and people.

As Justice Rosalie Abella pointed out at one point, all this speculation about the will of the founders was a bit odd, because in this instance the founders’ bones have not for the most part been ground to dust. One of them was Jean Chrétien; Google Maps tells me his office is 900 metres from the Supreme Court building. Roy McMurtry was there too, and Roy Romanow, and many others still extant. Surely it should be possible to ask them what they intended.

And indeed, there was a whiff of the supernatural about the appearance a few hours later of Serge Joyal, a Liberal senator still serving, who was chairman of the special Commons committee studying the Constitutional repatriation project more than 30 years ago. It was a highlight of his career as an MP; Pierre Trudeau did not make him a senior cabinet minister or put him in the Senate. That task fell to Jean Chrétien in 1997.

Joyal is a man of many interests. He spent several years documenting the mismatch in government spending on arts infrastructure in Toronto compared to Montreal; I suspect his efforts had much to do with Jean Charest’s decision to pay for a new concert hall at Place des Arts. Here on my desk I have a copy of Joyal’s 550-page book, published last month, Le Mythe de Napoléon au Canada Français, which explores ideas of Napoleon among early French Canadians.

Today he argued for about 20 minutes without notes or interruption (in English, his second language) for the idea that the Senate cannot become elected, term-limited or abolished without unanimous federal-provincial consent. There is no need to wonder what the “founders,” still breathing or lately deceased, thought about Senate abolition, he told the Supremes: they didn’t. His committee heard many witnesses who testified about the possibility of abolishing the monarchy. None who imagined getting rid of the Senate.

Term limits? Three prime ministers have served longer than nine years, he said, meaning they could have appointed an entire Senate while in office. The notion of term limits was indeed discussed — not in relation to the 1982 Constitution Act, but before its predecessor, the BNA Act, was completed in 1867. Joyal read quotes from a public figure who had rejected a 9-year term limit on the grounds that any term-limited Senator would spend part of his tenure looking around for other job opportunities, or begging to be re-appointed. When was that written? “Eighteen sixty-five,” Joyal said. Turns out he’s an authority on two sets of founders.

Thursday the amici curiae, two lawyers in private practice hired by the Supremes to argue any viewpoint they deem pertinent, as a means of ensuring a complete debate, will present their arguments. Then the ermine-clad solons will retire to their corners to write an opinion. At some level it doesn’t matter all that much what they decide.

The debate on whether the Senate can be elected and term-limited without formal approval by several provinces seems lost; only the federal government has argued that it could. The debate on abolition is unsettled, with most intervenors calling for a unanimity requirement and a smaller number saying the 7/50 rule could apply.

Does it really make a difference, except as a matter of legal interest? I’m trying to imagine a Prime Minister Stephen Harper rallying seven provinces in support of Senate abolition. (A Prime Minister Thomas Mulcair would face most of the obstacles I’m about to describe. Justin Trudeau has shown no interest in abolishing the upper house.)

It’s probably fair to take the list of provinces calling for unanimity as a rough proxy for the list of provinces that would oppose a concrete abolition plan. There are seven of them (all but Alberta, Saskatchewan and British Columbia) representing more than half the country’s population. The PM would need a list of provinces that support abolition on its merits; a few more whose premiers would sense public-opinion support for abolition and play along to stay on the right side of the public; and a few friends in provincial premiers’ offices who would go along because their pal the PM needed a favour.

There’s no such list of premiers. Harper used to have allies in provincial capitals: John Hamm in Nova Scotia, Jean Charest, for a while, in Quebec. Kathy Dunderdale campaigned for him in Newfoundland in 2011. But the others are out of office and Dunderdale is no longer much of a fan. Harper could maybe count on Saskatchewan’s Brad Wall as a steady personal ally, if only on this file, but that leaves most of the spots the PM needs filled on his dance card still empty.

The longer this court process goes on, the surer I get that the Senate will never be abolished.

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