OTTAWA — Canada’s highest court should be flexible in deciding whether proposed reforms to the Senate fit with the Constitution, in much the same way it ruled to allow same-sex marriage, the Harper government argued Tuesday.
The government has submitted legal arguments to the Supreme Court of Canada in a reference it sent to the high court earlier this year on proposed Senate reform legislation, Bill C-7.
Pierre Poilievre, minister of state for democratic reform, says the government’s proposed changes to the Senate do not require consent of the provinces.
The government asked the Supreme Court in February to clarify its powers to reform or abolish the Senate.
The high court should provide a “progressive interpretation” of the Constitution as it relates to Senate reform, rather than strictly adhering to the wording of a document created nearly 150 years ago, as it has in other recent high-profile cases, says a factum submitted to the court.
“Slavish adherence to original intent has been rejected by this Court in, for example, the Same Sex Marriage Reference, where the Court held that the understanding of ’marriage’ that prevailed in 1867 should not be determinative of our present day understanding,” said the 68-page document.
The government introduced the proposed Senate Reform Act in June 2011, and has blamed the opposition for delaying its passage.
But senators and some provinces have resisted the Harper government’s proposals.
There are also questions about whether a majority of provinces have to be on side with reforms, or whether all of them have to agree.
The high court can decide, in some circumstances, to allow the federal government to side-step the provinces in making changes to the Senate, the Conservatives argue.
“Provincial involvement of any kind in changes to the Senate was only contemplated for a few matters,” said the factum.
Bill C-7 would limit senators’ terms to nine years and allow the provinces to hold elections to choose senators-in-waiting.
The prime minister would then recommend that senators who win the provincial elections be appointed by the Governor General.
As well, the Conservatives want to change the rules that require senators to own property of a certain value to be appointed to the chamber.
Under the Constitution Act of 1867, a senator must possess land worth at least $4,000 in the province for which he or she is appointed.
The property qualifications were originally put in place to ensure that the Senate represented Canada’s wealthy class and social elite.
“The Senate Reform Act does not require the amending formula of the Constitution to be applied,” Poilievre told an Ottawa news conference.
“We can amend the term limits of senators, the property requirements and we can provide a democratic vote to recommend senators to the upper chamber, all without an amending formula to the Constitution.”
The reference also asks the court whether the Senate can be abolished, and if so, by what method.
Saskatchewan Premier Brad Wall has been pushing for abolition, although most of his provincial counterparts prefer reforms, and some, including Quebec and Ontario, have said they oppose getting rid of the red chamber entirely.
The NDP also wants the Senate abolished.
And that may just be what the Conservatives want as well, with the blessing of the courts, suggests Errol Mendes, a University of Ottawa constitutional law professor who has testified before Parliament about Senate reform.
Mendes is convinced the Supreme Court will reject most of the Harper government’s arguments because what is being is proposed is “substantive change” and not just housekeeping amendments to the way the upper chamber functions.
“It is an end-run around the (constitutional) amending formula,” said Mendes, who was an adviser to former prime minister Paul Martin.
Rather than bulldoze a bill through Parliament, the Tories referred the questions to the high court with the full realization that they would be rejected, said Mendes.
Such a ruling would “excite their political base and rally Conservatives” around long-standing grievances, such as abolishing the upper chamber and restraining activist courts.
Calls to reform or abolish the upper chamber became pronounced in the spring as a controversy unfolded over the expense claims of a handful of senators.
Poilievre defended Sen. Mike Duffy in the Commons in the spring amid allegations that Duffy made improper housing expense claims. Duffy eventually resigned from the Conservative caucus.
Prime Minister Stephen Harper’s chief of staff Nigel Wright also resigned his position after writing Duffy a personal cheque for $90,000 to reimburse his expenses.
Questions have also been raised about the expense claims of Senator Pamela Wallin, who also left Tory caucus, Liberal Mac Harb and former Conservative Patrick Brazeau, who was kicked out of the Tory caucus over a criminal investigation unrelated to his expenses.