The Supreme Court of Canada has unanimously rejected the Conservative government’s attempt to transform the Senate into an elected body, and to set term limits of nine years, saying that such basic changes require the consent of at least seven provinces and half of Canadians.

The court also nixed the possible abolition of the Senate without the consent of all provinces, the House of Commons and the Senate — probably impossible for the foreseeable future. Prime Minister Stephen Harper has said that if he cannot democratize the Senate he would demolish it. His government had asked the court if abolition could occur with the consent of seven provinces and half of the country’s population.

“The Senate is one of Canada’s foundational political institutions,” the court said. “It lies at the heart of the agreements that gave birth to the Canadian federation,” and can only be changed in accordance with Canada’s procedures for amending the constitution — not by Parliament acting alone.

The court had been expected to deliberate for a year, perhaps even two, but in the end it found the complex questions on Senate reform simple enough to answer in just six months.

Political scientist Peter Russell, an authority on the Senate and Supreme Court, applauded the ruling’s explanation of the “constitutional architecture” of Canada. “I thought the way the court spelled out that we are a constitutional democracy, it was almost like giving the alphabet to first-graders,” he said in an interview.

“Reading between the lines, they’re saying to a government that seems to have acted as if there were no constraints — as long as it has a majority in the House of Commons, it can do what it wants — ‘that’s not our system.’”

He said the court’s message was that “you don’t approach the Constitution as if it was a lawyer’s contract. You approach it as the framework for a great nation.”

The government had derided the Senate as an institution that never lived up to the dreams of Canada’s founders for independent review of legislation. It had urged the Supreme Court to consider the practical difficulties of trying to democratize the Senate in a country in which constitutional talks with the provinces are widely seen as more trouble than they’re worth. The government told the court the choice was between “meaningful action and 135 more years of talk.”

But the Canadian Constitution says clearly that any changes to the Senate’s powers or means of selection are beyond the power of a single elected government to change. Instead, it explicitly requires the consent of seven provinces with 50 per cent or more of the population.

The government argued that the selection method of senators would in a legal sense remain the same, because the elections would be non-binding, and the prime minister would have the discretion not to appoint the winners. Mr. Russell said that argument made “our judges look like potential idiots.”

It was the Harper government’s fifth unanimous or near-unanimous defeat at the hands of the Supreme Court in the past month, all involving major files – the appointment of a new Supreme Court judge, the tough-on-crime agenda and now, Senate reform. It was also the third straight defeat in a reference case, in which the government poses questions to the court for an advisory opinion.

The court’s decision is a clear loss for the Conservative government, but it may have a silver lining. Facing months of scrutiny over the Senate expense controversy, Mr. Harper sought last November to deflect blame for the beleaguered institution onto the judiciary, which he said was blocking the government’s attempts at Senate reform. The ruling provides another opportunity for Mr. Harper to suggest to Conservative supporters that the government’s hands are essentially tied when it comes to fixing what’s wrong with the Red Chamber.

The decision does not say that reform is impossible, however. Rather, it lays out a roadmap for making each of the reforms the government put forward – most of which require consultation and agreement from at least seven of the provinces representing 50 per cent of the population.

Mr. Harper has suggested he has little appetite for engaging in a constitutional debate with the provinces, though, which the court indicated would be a requirement for making the changes the government has proposed. Some members of the Conservative government have floated the possibility of a referendum on Senate abolition, but such a vote would at most serve to put pressure on provincial governments and would not give Ottawa the power to enact any changes.

Mr. Harper has never been a supporter of the Senate and was publicly demanding reform or abolition as far back as the 1980s. As Prime Minister, he waited more than two years before appointing anyone to the Red Chamber, before moving quickly to fill a series of vacancies in late 2008. Three of the new Conservative senators appointed that year would later be suspended amid a damaging controversy over their expenses.

The case has wide implications – for the Senate’s future, and for broader questions of federalism. Provinces such as Ontario and Quebec argued that the Senate was part of the original bargain of Confederation, and that Canada’s history is one of a delicate balance between the federal government and the provinces. New Brunswick said it joined Canada because it was reassured that the Senate would give it a stronger voice, as a counterbalance to the House of Commons, in which representation by population gives the big provinces the biggest numbers. In the Senate, the regions have roughly equal representation. Senators may sit till 75.

Chief Justice Beverley McLachlin said during the hearing that the key issue was how the government’s proposals would affect the Senate’s essential or enduring features.

The Globe and Mail
Published Friday, Apr. 25 2014, 9:53 AM EDT
Last updated Friday, Apr. 25 2014, 10:45 AM EDT