The Supreme Court of Canada, in a unanimous ruling, has sent a strong message the federal government cannot pursue Senate reform in Canada without involvement of the provinces. Specifically, the court ruled abolishing the Senate would require all provincial governments agree to do so and seven provinces (comprising more than 50 per cent of the population) agree in order to develop a national framework for advisory elections to select Senate candidates.
This historic ruling has two crucial implications for the Senate debate moving forward. First, the court has rendered the possibility of Senate abolition essentially dead on arrival. It's unreasonable to think all premiers will ever sign onto abolition, especially when several small Atlantic provinces view the Senate -- where they hold a disproportionate number of members -- as crucial to maintaining their voice in Ottawa.
The call of abolitionists for a referendum ignores the fact abolition requires the unanimous consent of all provincial legislatures, not citizens.
Some politicians, such as Manitoba Justice Minister Andrew Swan, seem unwilling to accept this outcome. But the reality is Canada is a democracy characterized by the rule of law, even when we don't particularly like the laws. It's time for Swan and others to move on.
The second implication of the ruling is the creation of a federal framework for advisory elections for senators would also be very difficult, as a significant number of provincial governments would have to sign onto the scheme. This helps to explain the prime minister's despondent reaction on Friday, saying the ruling had halted Senate reform dead in its tracks.
I would argue, however, the result is far from a defeat for advocates of an elected Senate. To the contrary, the ruling has clarified responsibility for how senators are chosen: As long as the prime minister is willing to appoint elected senators (as Harper has indicated he will do), then that responsibility now clearly falls to the provinces. If Canadians want an elected Senate, they will have to demand their provincial governments hold advisory elections in order to select them.
While former prime minister Jean Chrétien refused to appoint elected senators from Alberta while in office, it would be very difficult for prime ministers in the future to do so if other provinces were to adopt the elections model.
The result is likely to be Senate elections, removed from federal politics and placed solely in the realm of provincial politics by the court, will become an issue in provincial election campaigns. Pro-election parties can be expected to trumpet their commitment to democratizing the Senate through provincial advisory elections and parties opposed to the elections will be forced to defend their protection of the deeply unpopular status quo.
The result will be a patchwork as some provinces choose to hold such elections while others choose not to. Alberta has been holding advisory Senate elections since the 1980s. The government of New Brunswick will hold an advisory election in 2016 in order to select Senate nominees. (British Columbia had an act mandating similar elections, but it wasn't used and so was cancelled.)
It's likely other provinces will jump on the pro-election bandwagon in the wake of this ruling.
Manitoba should be one of those provinces. In 2006, the Elections Reform Act, which called for elections for senators in Manitoba, received all party support in the provincial legislature. And in 2009, a special committee tasked with holding public hearings to explore Manitobans' views on the issue similarly recommended the provincial government hold Senate elections. Now that the court has clarified this is the provinces' responsibility, the pressure to do so will be even stronger.
There are two Senate vacancies in Manitoba. Should Manitobans or the prime minister have the final say on who fills these vacancies? Perhaps our provincial parties should make clear where they stand on this question.
Royce Koop is an assistant professor in the department of political studies at the University of Manitoba.