The federal government says it will argue before the Supreme Court that it should be able to make changes to the Senate without the provinces' consent
Canada's new minister of state for democratic reform says the government believes it can go ahead with Senate reform without the co-operation of the provinces, but is asking the Supreme Court of Canada if that position is constitutionally correct.
Pierre Poilievre addressed the government's position on Senate reform at a press conference Wednesday on Parliament Hill.
Poilievre, once known as the government's attack dog when he answered questions on behalf of the government in the House of Commons, is now the lead minister overseeing some of the Conservative government's priority policies, including electoral reform and Senate reform.
In February, the government asked the Supreme Court of Canada whether Parliament can enact fixed terms for senators, for either eight, nine or 10 years, or the life of two or three Parliaments of four years each.
Another question put to the court by the government is whether the Constitution can be amended by Parliament to ensure that the provinces are consulted about Senate appointments.
Prime Minister Stephen Harper has urged the provinces to elect senators and has promised that they will be appointed, but the government's argument before the court, or factum, filed Wednesday, stresses there would be no binding obligation to appoint elected senators, but emphasized it is essential that the names of Senate nominees suggested by the provinces be given due consideration.
Poilievre said the government is confident Parliament has the authority to "enact the improvements" in its Senate reform legislation.
"The opinion of the Supreme Court will allow us to move forward by providing clarity on the appropriate amending procedures," he said.
The government has also asked the top court about whether Parliament can repeal the requirement for property qualifications for senators. At present, senators must own a residence worth at least $4,000 in the province they represent, an amount that represented a considerable sum in 1867, but not today.
The government is suggesting that the obligation to own property be done away with entirely.
Parliament has unilaterally reformed the Senate in the past, without seeking approval from the provinces when it legislated mandatory retirement for senators at age 75. Before then, as Poilievre put it, a senator had "a job for life."
Highest court also asked about abolition of the Senate
Additionally, the top court has been asked about the constitutionality of abolishing the Senate, specifically, whether abolition would require the support of seven provinces with 50 per cent of Canada’s population, or unanimous support from all 10 provinces.
However, abolishing the Senate is not part of the government's Senate reform package.
Poilievre said Wednesday that the government's preferred position is to reform the Senate, not abolish it. He believes Senate reform can proceed without the provinces' support.
He then reiterated the government's position that if the Senate can't be reformed, it should be abolished, which is why the top court has been asked to give an opinion on how abolition could be accomplished.
"The Senate must either be reformed or like its provincial counterparts it must be abolished. This reference to the court will give Canadians a series of legal options and maybe even a how-to guide on how to pursue them. And once we hear back from the top court we can take direction from Canadians on how to do so," he said.
The government is also arguing that the Senate could legally be abolished using the amending formula in Section 38 of the Constitution Act which requires the consent of two-thirds of the provinces representing at least 50 per cent of the population, and not all the provinces. The government points out that the Constitution was repatriated to Canada in 1982 without the consent of all 10 provinces, since Quebec never signed on.
"Finally, we ask," Poilievre said, "Can be abolish the Senate without the unanimous consent of the provinces? We answer yes."
It's not known when the court will issue an opinion, but the government has asked it to fast-track its response, which could come as early as this fall.
Poilievre will also spearhead the government's long-awaited electoral reform bill, proposing new rules governing the use of robocalls by political parties during election campaigns.
The bill was scheduled to be introduced this past spring, but was abruptly pulled at the last moment by the previous minister of state for democratic reform, Tim Uppal.