What does the Supreme Court ruling mean for Senate reform?

by Jennifer Smith

Today, and speaking unanimously, the Supreme Court of Canada has read the government of Canada and Canadians an important lesson about the Constitution. To wit, it is not the plaything of politicians. They can huff and puff, but they cannot tear the house down. Specifically, they cannot fiddle with the Senate, or outright abolish it, without engaging the provinces.

Three things to know about the Supreme Court decision:

1. Parliament cannot unilaterally alter the term of appointment of senators or establish consultative elections for the selection of senators. Such changes amount to constitutional amendments that require the agreement of the provinces that together include at least 50 per cent of the population of the country – the 7/50 formula.
2. The abolition of the Senate is not a reform of the institution, but instead a massive constitutional change that requires the application of the unanimity formula - the agreement of Parliament and the legislatures of all of the provinces.
3. The Parliament of Canada can eliminate the requirement that a prospective senator own $4,000. of property.

Three myths dispelled by the Supreme Court decision:

The Supreme Court has swept away three misconceptions about the issue of Senate reform.

Myth #1:  Most important is the idea that the government on its own can abolish the Senate. 

The Reality:  No, it cannot.  Senate abolition requires unanimous approval of Parliament and all ten provincial legislatures.

      Myth #2:  Another is the notion that the Senate is a stand-alone institution. 

      The Reality:  As the court points out, it is instead an integral part of the design of the government of Canada as contemplated under the constitution. It is meant to serve as a check on the government-dominated House of Commons and to represent the regions of the country.

      Myth #3:  A third misconception is that the Senate somehow does not belong to the Canadian people. 

      The Reality:  It does. A broad consensus is required to change it.  The court’s decision is the triumph of the constitution. Governments need to work under it, not seek to find ways around it.

      Jennifer Smith is professor emeritus, Department ofPolitical Science, Dalhousie University.  She edited The Democratic Dilemma: Reforming the Canadian Senate, 2009.