… To make predictions, especially about the future; so Winston Churchill. But the attraction of doing so is irresistible, so here goes: my forecast for the outcome of the Senate Reference, which the Supreme Court will release tomorrow. (If you need a refresher on the Reference and the issues it raises, as well as another set of predictions, have a look at Emmett Macpharlane’s excellent “Guide to the Senate Reform Debate”; you can also read my collected posts on the topic here.)
On the question of term limits, my guess is that the Court will find that none of the limits suggested by the federal government are constitutional. Although, as prof. Macfarlane suggests, the “compromise” view defended by Ontario and Saskatchewan, according to which long term limits would not be problematic, I doubt that it can be worked into a rule that is at once clear enough and principled enough for the Court to endorse it. The federal government itself stubbornly refused to offer the Court much in the way of a principle limiting its power to impose term limits, and the provinces supporting the compromise solution have done little better. Although the constitutional text does not offer direct support for the proposition that the Senators’ term is, in fact, entrenched, the Court will hold that essential characteristics of the Senate cannot be unilaterally amended by Parliament.
I also expect the Court to reject “consultative” elections to the Senate, partly for the same reason, but also because, in one way or another (hopefully, in the way Fabien Gélinas and I suggest!), the discretionary appointment of Senators by the Prime Minister is part of the entrenched “method of selecting Senators.” The Supreme Court will not countenance the federal government’s attempt to achieve unilaterally and indirectly what the framers of the Constitution Act, 1982, quite clearly thought required a constitutional amendment with provincial participation.
However, the Court will hold that the property qualification for appointment to the Senate can be unilaterally abolished by Parliament, because such an amendment does not interest the provinces (by their own admission), and because, however important in 1867, the property qualification, eroded by inflation to a fairly nominal amount, is no longer an essential characteristic of the Upper House.
Finally, regarding the abolition of the Senate, the Supreme Court will find that unanimous provincial consent is required. Although, unlike prof. Macfarlane, I am not convinced that the contrary conclusion (that the Senate can be abolished under the general, “7/50”, amending formula), would require the Court “to divorce its reasoning completely from the constitutional text,” ― which, after all, does not list the abolition of the Senate among the matters requiring unanimity ― the judges seemed to find the prospect of such a fundamental amendment done with anything less than unanimous support quite unsettling. Although the Senate might, as prof. Macfarlane suggests, be protected from abolition by its role in the process of constitutional amendment itself, which cannot be changed without unanimous consent, the Court might even base its ruling on the broader ground that any fundamental alterations to the nature of the Canadian constitution require the consent of all the provinces.
Well, we’ll see. I hope I don’t look like too much of an idiot tomorrow.
UPDATE: I forgot to mention that I will be at conference ― on Senate Reform ― at Université Laval’s Faculty of Law tomorrow. If you happen to be there, come say hi. In any case, I don’t think that I’ll have time for a blog post tomorrow. Except perhaps a public acknowledgement of idiocy, if necessary. I’ll do my best to have something more substantial on Saturday.