The Alward government’s plan to hold Senate elections in New Brunswick remains in legal limbo despite a Supreme Court of Canada ruling last week on Senate reform.
"It is not clear," said Emmett MacFarlane, a professor and author of a book on the Supreme Court’s role.
"That’s the bottom line on this."
Alward’s bill would allow Senate elections similar to those already held in Alberta — voters would choose who they want, but the prime minister would still appoint that person in the usual way, treating the election result as informal advice.
No one from the office of Premier David Alward, who holds the role of intergovernmental affairs minister, or from the Department of Justice, responded on Tuesday to questions from CBC News.
The top court ruled last week that Ottawa cannot change the Senate, hold elections for it, or abolish it without some level of provincial consent. That’s because the Senate’s structure and role are enshrined in the Constitution, which would need to be amended.
At the time, Government House leader Paul Robichaud wouldn’t comment on what the ruling meant for the Progressive Conservative government’s Senate election bill. It was put on hold last year pending the ruling.
"What I can assure you is the departments of Justice and Intergovernmental Affairs will look at the decision, and I’ll be in a better position to comment," Robichaud said last Thursday.
The court ruled Ottawa can’t organize Senate elections in the provinces without amending the Constitution, which would require the ratification of seven provinces representing more than half the province’s population.
But the court was silent on whether individual provinces can organize Senate elections under their own laws.
'The court didn't give us a list of all these possible alternatives and tell us which ones fall within the amending formula and which ones don't.' - Emmett MacFarlane, professor and author
The ruling was a reference case, meaning it was not a decision in a court case but a response to several questions posed to the top court by the Harper government. The government did not ask about the constitutionality of provincially-organized Senate elections.
Even so, some experts believe the ruling may still be fatal to the idea of a provincially-held Senate vote.
The justices wrote that the appointed nature of the Senate — what it calls its "independence from the electoral process" — is fundamental to its constitutional role and is explicit in the 1867 Constitution Act that created Canada.
"The contrast between election for members of the House of Commons and executive appointment for Senators is not an accident of history," the decision states.
"The framers … deliberately chose executive appointment of Senators in order to allow the Senate to play the specific role of a complementary legislative body of “sober second thought."
Senate elections, the court said, would give the Upper House "democratic legitimacy" that would "fundamentally modify the constitutional architecture" dating back to 1867.
And while in theory the prime minister would still be appointing senators, the court said, in practice, he or should would be politically bound to respect the result of the vote.
MacFarlane, a University of Waterloo professor and author of Governing from the Bench: the Supreme Court of Canada and the Judicial Role, says those findings could be interpreted as applying to any Senate election.
"The court didn't give us a list of all these possible alternatives and tell us which ones fall within the amending formula and which ones don't," he said.
"If all provinces tomorrow enacted Senate elections, that would change the nature of the Senate. But if they enacted these elections informally, does that require or constitute a formal amendment to the Constitution? I’m not sure anyone is quite clear on that."
MacFarlane says the Alward government could decide to go ahead and hope that its bill isn’t challenged in court. Or it could file its own reference case to the New Brunswick Court of Appeal, seeking a ruling on what the Supreme Court ruling means for its bill.