Last week’s Throne Speech was expected to be bereft of surprises. As it happened, a cranky Senate page with a handmade sign ensured that the event wasn’t a complete bore. But there was another, subtler eyebrow-raiser in the works. Despite prior reports of Conservative caucus dissension over Senate reform, Governor General David Johnston’s scripted words expressed the Prime Minister’s determination to act fast on it. Reform “remains a priority for our government,” Johnston reported, promising to reintroduce legislation—thwarted by weighty Oppositions in the past—“to limit term lengths and to encourage provinces and territories to hold elections for Senate nominees.”
The Conservative plan to tweak the Senate without opening up a politically unthinkable Constitution-amending process seems about to take its long-awaited ﬁrst step. And that implies a reignition of the debate over whether a prime minister can actually get away with such a thing. Quebec’s government is already threatening to haul the feds before the Supreme Court to block term-limit and Senate-election legislation. “If they try that, the Court is literally going to laugh at them,” says a confident Sen. Bert Brown, the Conservative reform advocate elected as an Alberta “senator-in-waiting” in 2004 and appointed to the upper house in 2007.
Constitutional scholars are unsure whether Brown is right. The government’s theory is that there is no “manifest conflict”—to use the phrase of Simon Fraser University political scientist Andrew Heard—between Senate elections and the text of the Constitution. The Constitution merely says that the governor general will “summon qualified persons to the Senate”; it does not say Parliament cannot invent new methods of making candidates available for his consideration.
Under the 1982 Constitution, a constitutional amendment would be necessary to change “the method of selecting senators.” (Term limits, on the other hand, are kosher.) “But there is no element of command in Bill S-8,” argues Brown, referring to a Senate-election law briefly brought before the upper house in April. The appointments of elected senators would still adhere to the form prescribed in the Constitution, with the governor general having final say. “The bill merely establishes a guidance framework for the elections themselves.” Brown expects the government to go ahead with an exact copy of S-8, which would allow provinces to hold Senate elections simultaneously with the elections to their own legislatures.
A slightly earlier pass at Senate reform, 2008’s Bill C-20, inspired House of Commons committee hearings on the constitutionality of Senate elections. Most scholars thought they would pass muster with courts, though not without considerable grudgingness. There is confusion over the exact test to be applied. A 1980 Supreme Court decision, the so-called “Upper House Reference,” established a principle that “fundamental features” of the Senate cannot be altered by Parliament alone. Some thinkers, notably oft-cited Osgoode Hall constitutional expert Peter Hogg, insist that the Upper House Reference was made moot by the renovated Constitution of 1982. A few others, like Heard, think the reference possesses lingering force.
“I don’t think the material logic of that case has been altered by other constitutional changes,” Heard reiterates. If he is right, and if unelectedness is “fundamental” to the Senate, a court would have to decide whether to regard provincial Senate elections as a mere means of allowing the PM and the GG to consult with the provinces, or as an illicit provincial obtrusion onto federal territory.