OTTAWA (Reuters) - Canada’s Supreme Court ruled on Friday that Parliament cannot enact major reforms to the Senate on its own, effectively killing off Conservative Prime Minister Stephen Harper’s efforts to make the unelected upper house more democratic.
The court said Harper’s Plan B — to abolish the Senate if reform proved impossible — must win the approval of the legislatures of all 10 provinces, not just an outright majority.
Parliament has two chambers, the elected House of Commons and the Senate, whose members are named by prime ministers over the years and which rarely blocks House legislation.
Before pushing through legislation that the top court might later strike down, the Conservatives had asked the top court to pronounce ahead of time what power Parliament has to make changes.
The court severely diminished the prospect of Senate reform by requiring constitutional amendments. In reaction, Harper threw in the towel, saying people knew full well there was no consensus among the provinces and no desire to reopen the Constitution.
“The Supreme Court has said we’re essentially stuck with the status quo for the time being and...significant reform and abolition are off the table,” he said at a business event in Kitchener, Ontario.
“I think it’s a decision that the vast majority of Canadians will be very disappointed with, but obviously we’ll respect that decision.”
In its unanimous decision, the court declared: “We conclude that Parliament cannot unilaterally achieve most of the proposed changes to the Senate, which require the consent of at least seven provinces representing, in the aggregate, at least half of the population of all the provinces.”
It added: “Abolition of the Senate would fundamentally change Canada’s constitutional structure, including its procedures for amending the Constitution, and can only be done with unanimous federal-provincial consensus.”
The Conservatives have long included Senate reform as a plank in their election platforms, but Harper wanted to avoid politically dangerous negotiations over constitutional amendments. Past attempts to make constitutional changes have failed miserably, while inflaming separatist sentiment in the mostly French-speaking province of Quebec.
Harper had hoped to have Parliament, where his party holds majorities in both houses, make changes without any constitutional amendments.
The impetus for reforming the Senate mounted over the past year with a scandal over living expenses that were deemed inappropriate. Questionable claims for expenses were made by one Liberal appointee and three Conservatives appointed by Harper.
Harper’s efforts to change the Senate, even if they fail as the result of the court’s decision, may mitigate damage to his political image as he prepares for the 2015 general election.
The two salient changes the government sought were a framework for senators to be chosen via provincial elections and term limits on senators, who now are able to serve until age 75.
To side-step the need for a constitutional amendment, Harper had proposed legislation that would retain the right of prime ministers to appoint senators, but require that they be chosen from among the winners of provincial “consultative elections.”
But the court said the proposal for such elections amounted to a constitutional amendment in itself.
“They would weaken the Senate’s role of sober second thought and would give it the democratic legitimacy to systematically block the House of Commons, contrary to its constitutional design,” it said, echoing an argument long made by opposition Liberal constitutional expert Stephane Dion.
An exultant Dion told reporters in the Supreme Court lobby that an elected Senate could have led to gridlock similar to that in the United States, where members of the Senate and the House are both elected.
“Imagine two elected chambers paralyzing each other, with the Senate contradicting the House not twice a decade as was the case now, but maybe twice a month or twice a week,” he said.
“The United States in the last four years has been unable to come up with a budget. It’s their problem but why would we import this problem into Canada?”
The contrast between election for House members and executive appointment for senators was “not an accident of history,” the court wrote, adding that term limits were also so substantive that they would require a constitutional amendment.
“Fixed terms provide a weaker security of tenure. They imply a finite time in office and necessarily offer a lesser degree of protection from the potential consequences of freely speaking one’s mind on the legislative proposals of the House of Commons,” the court decided.
The name of the case is Reference re Senate Reform, 2014, SCC 32.
Editing by Frank McGurty, Chizu Nomiyama, Steve Orlofsky and Leslie Adler