The politics of the Senate Reform Reference: fidelity, frustration, and federal unilateralism.

Author:Dodek, Adam M.
Position::Canada, Quebec - Symposium on the Senate Reference

References are the most political of cases, almost always involving high profile public policy issues. Frequently, references are brought to obtain rulings on the relationship between the federal government and the provinces. Less frequently, references involve questions of interbranch relations, that is, between two or more of the executive, legislative, and judicial branches of government. The Senate Reform Reference was one of the rare cases that featured each of these three elements. This article analyzes the Senate Reform Reference on several political levels. First, it situates the reference in terms of megaconstitutional politics, the long-held Canadian practice of attempting to resolve constitutional issues through formal and often high-profile negotiations between the federal and provincial governments. Such interactions have been anathema to the Harper government which has preferred unilateral political action to negotiated political agreement. The article then examines interparty politics or the relationship between the Harper government and the opposition parties during the period of minority government (2006-2011). This is the period during which one would have expected the government to bring a reference because of its inability to obtain support from the other parties in the House of Commons and the Senate for its proposed legislation on the Senate. However, it did not. This leads to an examination of the third issue: intra-party politics or the politics within the governing party, the Conservative Party of Canada. Finally, the article discusses legal politics and how the government of Quebec essentially forced the federal government's hand by bringing its own reference to the Quebec Court of Appeal. The overarching framework of interbranch politics--the relationship between the executive, legislative and judicial branches of government--is examined throughout the article.

Les renvois sont les arrets les plus politiques qui soient, car ils impliquent presque toujours des questions d'ordre publique. Les questions dans ces renvois sont souvent posees afin d'obtenir des jugements sur la relation entre les gouvernements provinciaux et federal. Ces renvois impliquent aussi, mais moins frequemment, des questions concernant la relation entre les branches du gouvernement, c'est a dire entre l'executif, le legislatif et le judiciaire. Le Renvoi relatif a la reforme du Senat, cependant, est l'une des rares affaires oU figurait chacun de ces trois elements. Cet article entreprend l'analyse du Renvoi relatif a la reforme du Senat sur plusieurs niveaux politiques. D'abord, l'article met en contexte le renvoi en termes des megapolitiques constitutionnelles, cette longue tradition canadienne qui tente de resoudre les problemes constitutionnels a travers des negociations formelles et souvent tres mediatisees entre les gouvernements provinciaux et federal. Le gouvernement Harper, cependant, a jete l'anatheme sur de telles interactions, preferant les actions politiques unilaterales aux accords politiques negocies. Cet article s'adresse ensuite aux relations entre le gouvernement Harper et les partis d'opposition durant la periode de gouvernement minoritaire (2006 a 2011). C'est durant cette periode qu'on aurait anticipe une demande de renvoi de la part du gouvernement, puisqu'il ne pouvait obtenir l'appui des autres partis dans la Chambre des communes et dans le Senat pour son projet de loi sur le Senat. Mais cela n'a pas ete fait. Ceci mene donc a l'etude d'une troisieme problematique: la politique interne du parti au pouvoir, en l'espece le Parti conservateur du Canada. L'article fait enfin l'etude de la politique juridique et comment le gouvernement du Quebec a force la main du gouvernement en demandant son propre renvoi de la Cour d'appel du Quebec. Le cadre general de la politique resultant des relations entre les branches executif, legislatif et judiciaire est aborde tout au long de l'article.

Introduction I. The Political Context for the Senate Reform Reference A. Senate Reform and Megaconstitutional Polities B. "The West Wants In!" Senate Reform (Party) (1987-2005) C. The West Is In: The Harper Government (2006-2013) D. The Harper Government's Polities of Open Federalism E. Senate Reform from die Top Down F. Why Did the Harper Government Bring the Reference? II. Political Issues Arising from the Senate Reference A. Political Issues about the Senate Reform Reference Specifically 1. For the Harper Government 2. For the Supreme Court 3. Relationship between the Supreme Court and die Senate B. The Politics of the Relationship between the Supreme Court and die Executive Generally 1. The Senate Reform Reference and the Nature of Advisory Opinions III. Political Aftermath of the Reference A. Political Response B. Interbranch Conflict between the Harper Government and the Supreme Court C. Political Implications and Constitutional Amendment Conclusion Introduction

In the Senate Reform Reference, (1) the Supreme Court established the legal framework within the Constitution for reforms to the Senate. The case is important on many levels: for addressing the constitutionality of Prime Minister Stephen Harper's government ("the Harper Government") Senate reform proposals; for setting out the framework for constitutional amendment under Part V of the Constitution Act, 1982; (2) and for relations between the different branches of government. The reference did not arise in a vacuum, however. It came to be heard by the Supreme Court in a particular political context. Examining that political context is necessary in order to fully appreciate the ramifications of the Senate Reform Reference and to better understand the nature of references more generally.

Three dominant interwoven themes emerge from examining the politics of the Senate Reform Reference: fidelity, frustration and federal unilateralism. Prime Minister Harper displayed remarkable fidelity to the cause of Senate reform. It is, in fact, surprising that he persisted with his commitment to the issue over the course of seven years in office despite being frustrated by the opposition parties in the House of Commons, by a Liberal-dominated Senate, by Senators within his own caucus, by resistant provincial premiers, and ultimately by the courts. The frustration of Prime Minister Harper's Senate reform efforts is explained in part by his unwavering fidelity to federal unilateralism: The Harper Government was simply unwilling to sit down with the provinces to discuss Senate reform. These three themes provided the context for the Prime Minister's decision to refer his Senate reform questions to the Supreme Court in February 2013. The Supreme Court's decision struck a decisive blow against the Harper Government, further frustrating its strategy of federal unilateralism. The Government's reaction to the Supreme Court's ruling showed the limits of its fidelity to the cause of Senate reform. When faced with the choice of abandoning its unilateral efforts or abandoning Senate reform, it chose the latter.

Not many decades ago, the prevailing legal ethos included the belief that a separation existed between the worlds of law and politics. Legal formalists dominated and asserted that there was a single right answer that could be divined for almost any legal problem and that this answer was separate from, distinct and impermeable to politics. If we accept Harold Lasswell's famous definition of politics as "who gets what, when, and how", (3) then the judicial role is inescapably political. However, the suggestion that politics influenced legal interpretation and judicial decisions was anathema to most judges and many lawyers because "politics" was something that political parties, not judges and lawyers, did. Today, however, the proposition that law succeeded in erecting a cordon sanitaire between it and politics has largely faded from the collective Canadian legal consciousness. It is now widely accepted that the Supreme Court of Canada is a "political" institution in the sense of deciding important public policy issues. (4) On this basis, the Court has rightly attracted the attention and the analysis of many political scientists, (5) some legal scholars, (6) and has even been the subject of a popular treatment. (7) In this world of legal politics, the Supreme Court's reference jurisdiction (8) is widely considered to bring the high court into the heart of the political arena. (9)

References are important legal and political tools for governments. (10) When references are used, it is often to address high-profile political issues, including the appointment of women to the Senate, (11) patriation of the Constitution, (12) Quebec secession, (13) same-sex marriage, (14) and the eligibility of an impugned Supreme Court appointment. (15) Moreover, as Carissima Mathen has written, "[t]he reference jurisdiction is an important and distinguishing feature of the Canadian Constitution. It commonly is cited as a key difference between Canada and the United States." (16) However, jurisprudential and political analyses of references remain underdeveloped in Canada. (17) This dearth of analysis is all the more concerning precisely because of the importance of references, both legally and politically.

References frequently inject the Supreme Court squarely into the political arena. Grant Huscroft has noted that Supreme Court decisions in references are often "celebrated in many quarters as acts of great wisdom and statecraft. The Court is often complimented for the political judgment it exercises in the context of the reference power." (18)

With the Senate Reform Reference, most of the response--media, legal, and political--was positive in the sense that the Supreme Court delivered a verdict that was largely expected. The Supreme Court rejected most of the federal government's contentions that it could change various aspects of the Senate--notably, the appointments process and the tenure of...

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