(The official ruling, in English is here -- courtesy The Montréal Gazette)
Stephen Harper has been so determined to "reform" (pun intended) the Senate of Canada that he has introduced unilateral legislation creating fixed nine year terms and elections only in those provinces that want it. (Compare this, for instance, to the Beaudoin - Dobbie Committee of more than 20 years ago, to which I actually filed a brief, which recommended fixed six year terms and elections held across the country).
Harper's argument is that Section 44 of the 1982 constitutional amendment allows Parliament to pass laws that exclusively pertain to the House of Commons and the Senate. That's fine for changes to the formula that determines representation of each province in the House of Commons (Section 51 of the original 1867 Constitution), or if the Senate decided to replace the appointed hack of a Speaker with one elected amongst its members, just as the House does after every election; or just in general any changes to the Standing Orders of Procedure in each House.
But actual changes to the nature of the Senate? Well, not so much. And the QCOA ruled as it should have: That the correct procedure is Sections 42 (b) and (c) which prescribes 7 provinces with 50% of the population; with no province being able to opt out. In other words, the provinces have to be at least consulted and give their ratification based on that formula; and even if the Senate self servingly voted against the amendment or hoisted it for six months, the House could pass it a second time and then the GG would then have no choice but to "seal" the amendment.
It's interesting that Québec, which has never ratified the 1982 amendment although it acknowledges the amendment does apply to the province, would be the ones challenging the law. But if it wasn't there, another province would have filed a reference to the high court and the ruling would have been exactly the same. Here's why:
Those of us who have actually read both Acts (as well as the numerous amendments in between) understand that the Confederation bargain was such that the Atlantic provinces would have at least as much say as Ontario and Québec in The Other Place, to offset representation by population in the House.
And while it rankles many in the West, it explains why representation in the Senate is as it is: Ontario and Québec each have 24; Atlantic Canada has 30 (10 each for Nova Scotia and New Brunswick, 4 for Prince Edward Island, 6 for Newfoundland and Labrador); the four Western provinces have 6 each for a total of 24; and the territories get one each (prior to 1886, the Great White North didn't even have representation in the House, and only finally got Senate representation in the 1950s).
But more important, the reason the Fathers of Confederation set lifetime terms for Senators (this was changed to 75 years old by an amendment in 1965) and setting the minimum age at 30 (still in effect) was 1) to ensure Senators summoned would have the maturity to handle the responsibility of reviewing House legislation and if necessary amending or rejecting it; 2) to free Senators from political pressure of the kind having to report to the people every four years, unlike in the House. Regarding the age limit, the QCOA pointed out that such an age limit, if it were created now or lowered from the present limit, would not be passable under section 44 either.
As time as gone on we've come to see that a second Chamber needs to be more democratic. While some countries have in recent years abolished their Senates (Croatia and Norway, to name just two), other countries have had their Senate elected from the start or became so after major public pressure (for instance, the US Senate became elected in 1913, but is still seen as the more important body in Congress because Senators represent not only the people, but their respective state legislatures -- as it was they that originally selected the Senators from 1787 to 1913).
I know of only two other countries that have indirectly elected Senates via an electoral college: France (although the campaign to reform or abolish there has been ongoing for some time) and Ireland (where the voters surprisingly voted down an abolition amendment earlier this month). Canada is unique among democracies where the provinces don't even have to be consulted -- appointments are made solely by the Prime Minister. Even for the Supreme Court, it's been established since during the brief Clark administration that the PMO will at least get a short list of recommended candidates, which the government doesn't have to accept but at least would consider before picking another candidate.
Reforms have never really happened in Canada because a) the push for a "Triple E" Senate of elected, "effective" and equal representation was really a poison pill aimed by some Westerners at Québec which would never have agreed to it and therefore would have preferred independence; 2) the failed Charlottetown referendum in 1992 had a Senate that was so much weaker than the House that it would have a joke job. Running for the Senate under those parameters would have been like someone deliberately running in the primaries for Vice-President of the United States. (Some states actually allow this!)
On top of Expensegate, Harper didn't need this. And he will have to make a really strong case for his government when the Supreme Court reference is heard -- however, the QCOA ruling will be very persuasive in guidance.
The only question remaining is if the Senate can be abolished by the 7-50 formula? I say unlikely. That's because 1) the bargain of regional representation in the Upper House being changed would violate an important constitutional convention which while unwritten would nevertheless go against the intent of the Fathers and therefore be unacceptable; 2) Section 41 (b) protects both the 1915 amendment which ensures that any province (presently Prince Edward Island and Newfoundland) gets at least as many MPs as Senators; and also that in no case less than what a province had in 1982, and changing either or both principles requires unanimity.
Simply put, all ten provinces. And I think the only plausible way to compensate the smaller provinces by having the lost Senate seat, is if it would become House seats elected at large (that is, the whole province). Believe it or not, this is what Bob Rae's opening position was during the 1992 talks.
Now that, if actually implemented, would be fun. Because Ontario and Québec are going to have 121 and 78 seats respectively after the next election. Add 24 to each, and that becomes 145 and 102. Meanwhile, BC would go from 42 to 48, Alberta from 34 to 40, Saskatchewan and Manitoba from 14 each to 20. On the other side of the country, New Brunswick would jump from 10 to 20, Nova Scotia from 11 to 21, PEI from 4 to 8, Newfoundland from 6 to 12.
Yeah, that would go over well. Newfoundland, with just a half a million people or so, would have nearly as much presence in Ottawa as Manitoba with more than double the population. Alberta, with more half the population of Québec, would have only one third as many seats. And so forth.
I really don't know where this is going. Chances are, there will be no changes and we'll end up where we are now, with a otherwise dysfunctional chamber whose only useful purpose these days is to produce committee reports that really challenge the status quo and gets us to think. Especially reports on national security and public healthcare, both categories of which have made the feds cringe when the reports were released.
But personally, this is what I think we should have in terms of reforms that could get 7-50:
- The minimum age to run for the Senate is 18 years, just like the House;
- There is no property requirement unlike now;
- One must clearly have an established connection to his province or territory -- proof of residency or just proof of the fact they were at a physically located homeless shelter would suffice;
- All Senators are elected for re-electable six year terms, with staggered classes (two halves with one half elected in three year waves; or three classes with one-third up for reelection every two -- as is the case in the States); in no case will a House election happen at the same time so there are no crossovers of current campaign issues;
- proportional representation with super-districts of four to six Senators each, depending on population;
- the representation that New Brunswick and Nova Scotia should be reduced so that the other Atlantic provinces get a bigger role. This may mean more MPs for PEI and NL but in such an important body the small need the protection of the whole -- pardon the expression;
- Ontario and Québec should give up four seats each and those given to the Western provinces, so each of those provinces would go from six each to eight;
- the territories get two each instead of one;
- the Speaker is elected, not appointed;
- the Senate actually has real power and exercises it, including the power of a sub poena, and the right to reject legislation outright as it does now;
- the Senate doesn't wait for legislation from the House to reach it to consider it (ending sober second thought); instead it can introduce legislation (except money bills) and have first thought on an issue if it so chooses, with each bill going through the three reading process in parallel with the separate House legislation, with the differences in House and Senate bills sent to conference for compromise before going through a final vote;
- the Senate allows its floor proceedings to be televised, live (not just committee hearings);
- if a federally appointed judge faces dismissal, that he or she faces an impeachment hearing in the House and then an open trial in the Senate with the Senators acting as proctors. This way, the dismissal of a section 99 judge would have to get clear majority votes in both Houses, each sitting separately -- presently it's not really clear whether that's the case, or if a majority of the combined membership is required (although to date there has never been a trial, such a judge recommended for removal quits rather than face the humiliation of being rejected by the people's representatives); and
- the six month hoist for constitutional amendments is retained but at the end of the hoist the Senate must vote on the amendment, up or down.
But we can't wait another 200 years for a change. It has to be within the next four years. Otherwise, we're condemned to a very boring place on the taxpayer's dime for a very long time.
UPDATE (2013/10/25 3:00 pm EDT): Minor edits to correct math errors.