OTTAWA: Canada’s Supreme Court ruled on Friday that Parliament cannot enact major reforms to the Senate on its own, dealing a sweeping setback to Conservative Prime Minister Stephen Harper’s goal of making the unelected upper house more democratic.
The court said Harper’s Plan B – to abolish the Senate if reform proved impossible – must win the approval of the legislatures of all 10 provinces, not just an outright majority.
Parliament has two chambers, the elected House of Commons and the Senate, whose members are named by prime ministers over the years and which rarely blocks House legislation.
Before pushing through legislation that the top court might later strike down, the Conservatives had asked the top court to pronounce ahead of time what power Parliament has to make changes.
Effectively, the court killed off or at least severely diminished the prospect of Senate reform by requiring constitutional amendments. Canada’s federal political leaders dare not embark on constitutional negotiations because of fears that opening up such talks could weaken the country’s fragile national unity.
“We conclude that Parliament cannot unilaterally achieve most of the proposed changes to the Senate, which require the consent of at least seven provinces representing, in the aggregate, at least half of the population of all the provinces,” the court said unanimously.
“Abolition of the Senate would fundamentally change Canada’s constitutional structure, including its procedures for amending the Constitution, and can only be done with unanimous federal-provincial consensus,” it added.
The Conservatives have long included Senate reform as a plank in their election platforms, but Harper wanted to avoid politically dangerous negotiations over constitutional amendments. Past attempts to make constitutional changes have failed miserably, while inflaming separatist sentiment in the mostly French-speaking province of Quebec.
Instead Harper had hoped to have Parliament, where his party holds majorities in both houses, make changes without any constitutional amendments.
The impetus for reforming the Senate mounted over the past year with a scandal over living expenses that were deemed inappropriate. Questionable claims for expenses were made by one Liberal appointee and three Conservatives appointed by Harper.
Harper’s efforts to change the Senate, even if they fail as the result of the court’s decision, may mitigate damage to his political image as he prepares for the 2015 general election.
The two salient changes the government sought are a framework for senators to be chosen in provincial elections and term limits on senators, who now are able to serve until age 75.
To side-step the need for a constitutional amendment, Harper had proposed legislation that would retain the right of prime ministers to appoint senators but require them to consider names of Senate candidates elected in provincial elections.
The court said the proposal for “consultative elections” amounted to a constitutional amendment in itself.
“They would weaken the Senate’s role of sober second thought and would give it the democratic legitimacy to systematically block the House of Commons, contrary to its constitutional design,” it said, echoing an argument long made by opposition Liberal constitutional expert Stephane Dion.
The contrast between election for House members and executive appointment for senators was “not an accident of history,” the court said.
“Fixed terms provide a weaker security of tenure. They imply a finite time in office and necessarily offer a lesser degree of protection from the potential consequences of freely speaking one’s mind on the legislative proposals of the House of Commons,” the court decided.
The name of the case is Reference re Senate Reform, 2014, SCC 32.