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No Statecraft, Questionable Jurisprudence: How the Supreme Court Tried to Kill Senate Reform

The School of Public Policy publications (Online), 2015-04, Vol.8 [Peer Reviewed Journal]

2015. This work is licensed under https://creativecommons.org/licenses/by-nc/4.0/ (the “License”). Notwithstanding the ProQuest Terms and Conditions, you may use this content in accordance with the terms of the License. ;ISSN: 2560-8320 ;ISSN: 2560-8312 ;EISSN: 2560-8320 ;DOI: 10.11575/sppp.v8i0.42521

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  • Title:
    No Statecraft, Questionable Jurisprudence: How the Supreme Court Tried to Kill Senate Reform
  • Author: FL Ted Morton
  • Subjects: Ambiguity ; Compromises ; Consent ; Constitutional courts ; Democracy ; Dysfunctional ; Elections ; Federal government ; Federalism ; Jurisprudence ; Legislators ; Legislatures ; Parliamentary reform ; Partisanship ; Patronage ; Political appointments ; Political change ; Politics ; Provinces ; Referendums ; Reforms ; Secession ; Supreme courts ; Term limitations ; Term of office ; Values
  • Is Part Of: The School of Public Policy publications (Online), 2015-04, Vol.8
  • Description: In the Senate Reform Reference of 2014, the Supreme Court of Canada declared the Harper government’s proposed reforms to the Canadian Senate unconstitutional. The court ruled that the Federal Government could not legislate non-binding, consultative elections for selecting senators, nor legislate term limits for senators without the consent of at least seven of the 10 provinces. It also ruled that abolishing the Senate would require the unanimous consent of all 10 provinces. The court’s ruling is widely understood to have put an end to the Senate reform movement of the past three decades and to have constitutionally entrenched the Senate status quo. My analysis criticizes the court for failing to play a constructive role in facilitating the political reform of an institution that has ceased to serve any useful political purpose (other than patronage) and for unnecessarily condemning Canadians to endure this dysfunctional second chamber for at least another generation. In earlier analogous cases of political deadlock and constitutional ambiguity— the Patriation Reference of 1981 and the Quebec Secession Reference of 1997—the court exercised “bold statecraft [if] questionable jurisprudence” to craft compromise rulings that facilitated subsequent resolutions by elected governments. But not in this case. The court could have easily reached a more constructive conclusion following its own “living tree” approach to constitutional interpretation. The court ignored its own “foundational constitutional principles” of democracy and federalism—values that would be enhanced by provincial Senate elections. Indeed, the court has now given greater constitutional support for secession referendums in Quebec than it has for democratically elected senators. I suggest that there is still an exit strategy for the Harper government out of this judicially created dead end: simply turn the appointment of future senators over to provincial premiers, and let the dynamics of partisan provincial politics push the future selection of senators toward democratic elections.
  • Publisher: Calgary: University of Calgary, The School of Public Policy
  • Language: English
  • Identifier: ISSN: 2560-8320
    ISSN: 2560-8312
    EISSN: 2560-8320
    DOI: 10.11575/sppp.v8i0.42521
  • Source: ProQuest Central
    DOAJ Directory of Open Access Journals
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