Supreme Court's Senate ruling: What to watch for
The top court's opinion will effectually be final word on Senate reform or even abolition
Friday morning's decision from the Supreme Court of Canada on Senate reform will either be the last word on changing the Senate for a generation, or a blueprint about how the Red Chamber can be remade.
In mid-summer, the government asked the highest court for a constitutional opinion on four fundamental questions.
The first three questions put by the government inquire whether Parliament, on its own, can make changes to senators' terms, qualifications and method of selection:
- Can senators be appointed for terms of 8, 9 or 10 years, or for the lives of a couple of Parliament sessions?
- Can senators be chosen by consultations with the provinces in the form of provincial elections, as has happened in Alberta?
- Can the archaic requirement of a senator owning at least $4,000 worth of property in his or her province be eliminated?
Finally, there is a question about the Senate's future:
- Can the Senate be abolished with the consent of seven provinces representing 50 per cent of the country's population, known as the 7/50 formula, or is the consent of all provinces mandatory?
What to watch for
The Supreme Court's opinion, scheduled to be released at 9:45 a.m. E.T., is an important moment in the political life of the country and will provide answers about the future of the Senate.
Is Senate reform even possible?
If the top court decides that the provinces, either some or all of them, must give their consent to the government's proposed Senate reforms, then it's unlikely any attempt at Senate reform by a federal government will be seen again for decades.
Roger Gibbons of the Canada West Foundation told the CBC's Alison Crawford, "It [will] pass the ball back to the provinces. Provincial governments are not going to deal with this. They're simply not going to be able to come to grips with it, to develop a coherent response."
If the top court says provincial consent is needed for reform, could the provinces ever agree?
Only Saskatchewan and Ontario agree, with some reservations, on the government's power to unilaterally set fixed terms for senators
Only Alberta and Saskatchewan are on-side with "consultative" elections for senators . The other provinces believe the prime minister would be morally and politically obliged to honour provincial election results on Senate candidates, thus removing the consultative aspect.
Only Saskatchewan and Alberta concur on the 7/50 formula for Senate abolition. The other provinces hold out for unanimity.
On the property qualification question, the government may be in luck. Most provinces don't care about whether senators own a parking space or a perhaps a barn worth $4,000 in order to qualify for the Senate.
However, property ownership has nothing to do with a senator's residence. A senator would still have to be resident of the province he or she is appointed to represent, although Senator Mike Duffy's problems over whether he is truly a senator from P.E.I. rather than Ontario show that the definition of residency may be unclear.
If the court says 'no' to most questions, will this be seen as a rebuke to the prime minister?
Yes, because it could be the second time in just over a month the Supreme Court has rejected a reference from the government. In March, the court decided Prime Minister Stephen Harper could not appoint Justice Marc Nadon to its bench because the respected Federal Court judge was not eligible to represent Quebec.
But, even rejection may not be interpreted as a rebuke. It depends, says Gibbons, on how Harper reacts to the decision. Much will depend on his tone. "Is he going to sulk or be petulant? Or is he just going to say, 'Well, the Supreme Court has spoken and life goes on?'"
Gibbons said it might be wise for Harper to emulate Kenny Rogers. "You have to know when to hold... know when to fold... know when to walk away....This is the chance for the prime minister to walk away and say, 'I'm through with Senate issues.'"
Will Senate reform be an election issue?
Again, it depends on the ruling, but if the court is negative on most of the government's questions, Harper can say his hands are tied, and at least he tried.
It's not likely the issue could be a winner for the NDP, even though its leader Tom Mulcair conducted a summer tour about abolishing the Senate. If the court rules that constitutionally all provinces must give consent, it's more difficult for the federal NDP to campaign on extinguishing the Senate.
But David Schneiderman, a constitutional law professor at the University of Toronto, thinks the NDP could campaign for a countrywide referendum on abolition.
"That would then compel the provinces to pass resolutions," he said. "But the problem is opening up constitutional negotiations....That's their difficulty — confining their agenda to Senate abolition."
The Liberals have advocated that senators be chosen by a "group of eminent people," although that method, too, might pose constitutional problems.
Schneiderman said, "If the government can't consult the public [in Senate elections], why should they be able to consult eminent persons?"
However, Schneiderman doesn't believe Senate elections or consultations with experts should require a constitutional amendment, pointing out the government habitually consults various people about Senate candidates.
However, Liberal Leader Justin Trudeau, by washing his hands of his own Liberal senators when he kicked them out of his caucus, is not likely to make the Senate an issue on the campaign trail.
With files from Alison Crawford