6 points in the government's case for Senate reform

Almost as soon as the Senate was put in place in 1867, politicians started thinking about reforming it. Here's a look at six things that can be learned from the federal government's Supreme Court factum on Senate reform filed Thursday.
Prime Minister Stephen Harper appears before a special Senate committee on Senate reform on Parliament Hill in 2006, his first attempt at reforming the Senate. Now he's referred his latest bill on the Senate to the Supreme Court. (Tom Hanson/Canadian Press)

The government filed hundreds of pages of documents with the Supreme Court of Canada Thursday, asking the top court for an opinion about its proposed Senate reform bill.  

The package includes consulting the provinces on Senate nominees and imposing term limits on their tenure. Here are some of the things that can be learned by going through the documents.

1) Almost as soon as the Senate was established in 1867, people started wanting to reform it.

"Senate reform has never been far from the surface of Canadian history and politics," the government's court filings say, adding that a mere 10 years after Confederation the fledging House of Commons unanimously passed a motion to study Senate reform. As far back as 1926, a book was written titled The Unreformed Senate of Canada, to be followed by various bills, royal commissions, white papers, and reports, as well as the Meech Lake and Charlottetown accords.  

2) The government is not asking the Supreme Court if it can have an elected Senate, or if it can impose a 9-year term on senators or even if it can abolish the Senate.

Instead, it is asking the court what the rules actually are about changing the Constitution.The government admits this is a formidable task, but points out that so much angst ("the culmination of a long and difficult process") went into drafting an amending formula when the Constitution was repatriated in 1982, it is "unfathomable" it resulted in making change  impossible without the bound-to-fail process of asking all 10 provinces to agree. 

3) When it comes to constitutional matters, the Harper Conservatives are not orginalists. 

Unlike some U.S. Republicans, rather than trying to discern the exact meaning of what the Fathers of Confederation had in mind ("an exercise fraught with peril"), the government dismisses "slavish adherence to original intent," and, as an example, points out the act recognizing same-sex marriage passed constitutional muster because thoughts on marriage changed between 1867 and 2005.

4) Electing senators who are loyal to their parties won't make them less independent.

Without any irony, the government observes that 95 per cent of all Senate appointees have been from the prime minister of the day's own political party. Plus, most have been "individuals who have held elected public office or run for such an office in the past."  

5) Senators never really had 'jobs for life'

Even though Pierre Poilievre, the new minister of state for democratic reform, said Thursday senators used to have "jobs for life" before being forced to retire at age 75, the court filings point out that since 1965 most have stayed on the job on average for a decade, so limiting them to nine-year terms won't be much of a change.

6) Elected senators may not be a better class of people than appointed ones.

Even though the government seems to smile upon elected senators – five elected in Alberta have sat or are sitting in the Upper House — the court filings note, perhaps a little dryly, "The Alberta Senate nominee process has not produced senators whose professional and life experience varies significantly from [appointed] senators."