If Supreme Court nixes Senate reform, is referendum next?

Unless the Supreme Court is in a mood to deliver shock and awe on Friday, history and a legion of experts suggest the noble cause of Senate reform will probably continue down the same long, futile road that has challenged its proponents almost since Confederation.

High noon for Senate reform as top court to decide Friday if Ottawa can go it alone

Senate Speaker Noel Kinsella speaks during a news conference in the Senate chamber on Parliament Hill in December 2013. Calls for Senate reform began almost right after Confederation in 1867. (Chris Wattie / Reuters)

Now well into its second century of political futility, Senate reform is about to reach another historic milestone Friday when the Supreme Court rules on the Harper government's power to overhaul the upper chamber.

The answer may well be that it can't.

Unless the high court is in a mood to deliver shock and awe, history and a legion of experts suggest the noble cause of Senate reform will probably continue down the same long road that so far has gone largely from here to where we are.

In a nutshell, Stephen Harper's government is hoping to fulfill its longstanding promise to either fix or abolish the Senate without having to drag the country through a protracted constitutional battle with the provinces.

Polls show that reform is a mission popular with Canadians repulsed by the recent Senate spending scandals and long angered by the image of the red chamber as a patronage pasture for party hacks.

Unfortunately for the government and others who support cleaning up the Red Trough, or draining it forever, the Supreme Court is unlikely to give a simple yeah or nay.

The decision will be complicated, answering 14 separate constitutional questions posed by the government.

At the risk of over-simplification, those questions deal with three basic issues: Can the federal government set term limits for senators who now get to sit until age 75; appoint only those first chosen by provincially-sponsored Senate elections; and abolish the Senate altogether.

On each issue, the court will decide whether Parliament alone has the authority to make these kinds of changes, or whether it needs agreement from some or all of the provinces.

So far, experts say the odds favour the high court coming down on the side of the feds having to get provincial agreement on most of the 14 questions before it.

If that happens, the next big question on Senate reform may be whether the prime minister and his Conservative government are prepared to call a referendum on the issue during the next federal election, barely 18 months from now.

Not another Meech Lake

A referendum may be the only option left if the government is determined to move this file forward.

Experts say federal-provincial negotiations aimed at reforming or killing the Senate are almost beyond a last resort with this prime minister — and perhaps others for years to come.

A much younger Conservative Leader Stephen Harper promising in December 2005 that his party would reform the Senate if it forms the next government. (Reuters)

University of Waterloo political scientist Emmett Macfarlane told the CBC's Alison Crawford that the government's reference to the Supreme Court is precisely "an attempt to avoid the kind of mega-constitutional politics that we saw…with things like the Meech Lake or Charlottetown Accord" in the 1980s and '90s.

"This is not a government that is particularly interested in…sitting down with the premiers and hashing out an agreement."

Conservative strategists say there are perfectly good reasons to avoid reopening the Constitution.

"Once you open that door," says one former PMO staffer, "it's inevitable there will be a stampede of special interests trying to improve their constitutional lot, and that's probably the last thing most Canadians want right now."

Macfarlane points out that one of those likely to take advantage of any federal-provincial constitutional confab would be Quebec, back for another attempt to have a distinct society enshrined in the law of the land.

After more than a century of largely failed federal-provincial attempts to overhaul the Senate, the Harper government knows its own chances of reaching a deal for negotiated changes before the next election are slim to nil.

The government's own minister for democratic reform, Pierre Poilievre, admits: "We are not interested in having a big constitutional distraction."

Most Canadians would surely agree.

A dangerous gamble

So, if the Supreme Court rules the feds don't have the authority to give the Senate a makeover without provincial agreement, would the Harper government simply call a referendum on the issue?

Conservative strategists say, on the face of it, a referendum on Senate reform in the next election could provide a useful distraction from a government suffering nine years of wear and tear, and all the voter fatigue that goes with it.

As one Conservative insider says, in theory "the prime minister could say, 'Well, we're going to go over the heads of the courts and directly to the people on this.'"

In reality, a referendum would be a dangerous political gamble.

First, Harper and his government have spent nine years building their political brand around the economy. And unless the country's finances are completely in the tank by the next election, why would the Conservatives want to distract voters to focus on Senate reform?

Second, flogging Senate reform to voters could be a tough sell for a prime minister and government that have spent nine years failing to make good on their promises to change the upper chamber.

Third, if the Supreme Court rules that the federal government can't make changes to the Senate without the provinces, even a national referendum doesn't change that fact. It could all be a wasted exercise.

One Conservative insider says that no matter what the Supreme Court ruling is on Friday, "the government will find a happy face to put on the decision.

"Maybe they will simply throw up their hands and say, 'Well, we tried our best, you've heard the court, so let's just move on to other things.'"

All things considered, the government might call that a happy ending. 


Greg Weston was an investigative reporter for CBC News and a regular political commentator on CBC Radio and Television from 2010 to 2015.