The Senate reference: the feds argue every which way

Paul Wells looks at the political strategy behind the legal argument for Senate reform
Paul Wells
(Adrian Wyld, The Canadian Press)

The federal government’s factum in its Supreme Court reference on Senate reform is a fascinating piece of work.

Signed by veteran Justice Department lawyers Rob Frater (who tried his best on the Insite case) and Warren Newman (who had better luck with the Secession Reference), the factum — the text of the feds’ legal argument — continues the Justice Department’s attempt, no doubt at the PMO’s behest, to lowbridge this entire debate.

Having already asked the court to accept no new legal arguments (the Supremes rejected the request) and having asked the Quebec Court of Appeal to voluntary suspend hearings in its own Senate-reform reference, launched by the Quebec government (the Court of Appeal rejected that one too), the Justice Department lawyers once again urge the top court not to worry too hard about the whole business. Can Parliament unilaterally change Senators’ term in office, make terms renewable, abolish the property requirement for Senate membership and use consultative elections as a guide to appointing Senators? Yup, says the Harper government. Are seven provinces with half the country’s population enough to abolish the Senate outright? Yup. Much of the rest of the factum is devoted to pre-butting any argument that things should be more complicated.

Lest the Supremes be tempted to ponder these questions in the abstract, the Justice Dept. lawyers hasten to remind them that there is a bill before Parliament — the very Senate-reform bill that led to this reference. The will of Parliament often guides judicial decisions, although it seems hard to argue that a bill that hasn’t yet become law represents Parliament’s will. Then there is the aforementioned Secession Reference, which laid out several “unwritten principles” which should guide major constitutional reforms? Irrelevant here, the federal lawyers argue, because there is no uncertainty in the letter of the Constitution and therefore no vacuum which unwritten principles could help fill. Those “unwritten principles” include democracy, federalism and the protection of minority rights, each such an essentially contested concept that it is impossible to predict how they’d affect the Court’s opinion if allowed into the debate.

The Justice Department lawyers refer to ample precedent for simple Senate reforms, most of which predate the 1982 amending formula and are therefore almost useless as a guide to how reforms could be accomplished today. They avoid reference to the 1996 regional veto law passed by the Chrétien government after the 1995 referendum, a law that would require the approval of five “regions,” including Quebec and British Columbia, even for amendments under the so-called “7/50” rule.  (It may be possible to get around the regional veto law by having a backbencher, rather than a Minister, introduce the proposed amendment, but that escape route hasn’t been tested against court challenge.)

Anyway, blah blah blah. The common theme here is that the feds, plainly, devoutly wish they did not have to seek the Supremes’ opinion. They are seeking the broadest possible latitude to do whatever the federal government wants with the Senate, and the smallest possible amount of input from any other government or other actor in society. I do not blame them for this, but they will be lucky if they can get the top court to buy their arguments. And so far already in this Reference they have not been lucky.

What’s striking is that the broad political strategy being defended in this factum — a strategy of modest incremental reform to the Senate, without abolishing the place — was Stephen Harper’s game plan, listlessly pursued, years before Nigel Wright cut a cheque for Mike Duffy. But that strategy now seems like a relic from the past. Saskatchewan Premier Brad Wall and, more significantly, Opposition Leader Tom Mulcair are both arguing for the Senate to be abolished. The piecemeal reforms Harper once pursued, the reforms the Justice Department lawyers defend here, seems timid in comparison. Even if the feds wrangle a Supreme Court opinion they like on these proposed reforms, it may not do them much good. The political debate has already moved on.