However, Emmett McFarlane over at Maclean's has undertaken a rather detailed examination of the government's submission to the Supreme Court. The implications of it are horrifying should the Supreme Court allow this to go through.
Of the five questions that the government has put forward to the SCoC, all but the question of abolition are essentially "gimmes". The government can, in principle, legislate anything it desires with respect to the Senate as long as it does not change the wording of the Constitution itself.Right at the start of the section of the factum on abolition, the government’s lawyers begin by flagrantly abusing the plain meaning of the constitutional text.153. The abolition of the Senate by any of the methods suggested in Question 5 would not constitute, in pith and substance, an attempt to amend Part V of the Constitution Act, 1982, because abolition of the Senate is not a matter in relation to the amendment of the amending procedures. The changes resulting to the operation of those procedures would be incidental to the Senate’s abolition.This statement is true only if you literally don’t read the amending procedures. I’m a stickler, so here’s the text of the general amending procedure, section 38(1), and the unanimity procedure, section 41. Note that I’ve added the relevant parts in bold to help the DoJ’s lawyers out:38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
…41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
Note 41(e): “Part” refers to all of Part V of the Act. Any changes to the amending formula require unanimity. The factum later acknowledges this, and things get a little more complicated when, as the factum points out, we see that the drafters provide for an effective veto in the event the Senate fails to pass a resolution on an amendment. From the factum:162. The primary argument advanced by those who believe the unanimous consent procedure is necessary to abolish the Senate is that the abolition of the Senate itself constitutes an amendment to Part V of the Constitution Act, 1982 and therefore requires unanimous approval pursuant to s. 41.163. The Senate is expressly mentioned in ss. 38, 41 and 43 of Part V. However, the Senate is not an essential actor in relation to any of the multilateral amending procedures in the Constitution. With the exception of s. 44 of the Constitution Act, 1982, the Senate has only a suspensive veto in respect of the amendment process. The absence of the Senate would not prevent the enactment of amendments under s. 38 (the 7/50 formula), s.41 (unanimity) or bilateral/multilateral amendments under s. 43.164. That the concurrence of the Senate is not required for any of the major categories of amendments of the Constitution is supported by s. 47 of the Constitution Act, 1982. That section makes it clear that an amendment to the Constitution under ss. 38,41,42 or 43 may be made without a resolution of the Senate if within 180 days after the House of Commons adopts an authorizing resolution, the House again adopts the resolution.This is a really interesting interpretation, in that it suggests all the references to the Senate in the amending formula are meaningless because section 47 allows the Senate to be overridden after 180 days. Except one could flip the logic here and suggest that the Senate is in fact very important to the amending formula—so important that the drafters took pains to include a separate clause requiring a full 180 days to pass before the Constitution can be amended without the Senate’s approval. “Incidental” indeed.
So, just as Harper pushed through a piece of legislation which theoretically created a framework for elections on fixed dates every four years, they could certainly pass legislation "enabling" provinces to hold senator elections (much as Alberta has done for the past ten years or so), or creating arbitrary term limits for senators could also be done by legislative fiat. As long as those changes do not attempt to override the language of the existing constitution documents.
Harper's 4 year election law did this by essentially ordering Elections Canada to prepare for an election every four years on a fixed, known date. However, the law itself was fundamentally window dressing because it contained exactly nothing which compelled the Prime Minister to approach the Governor General to dissolve Parliament. Further, there were exactly no consequences for the Prime Minister violating this act by asking the Governor General to dissolve parliament early - which is precisely what Harper did in 2008.
So, as happens in Alberta, there is nothing which stops a province today from holding "Senatorial Elections" which produce a list of nominees to be put before the Prime Minister should a vacancy in the Senate for the Province in question arise. Of course, what goes unsaid here is that there is exactly nothing which obliges the Prime Minister to recommend a senator from that list to the Governor General. In short, we would have the status quo, with the PM still reserving the right to allocate Senators based on his or her whim.
It is only if the language of the Constitution is amended that there is a meaningful consequence to a failure of the PM to comply with these changes. At that point, the head of state is in a legal position to remove the Prime Minister from power for violating the Constitution itself.
Stepping aside from the issue of reforming the Senate for a moment, what Harper has proposed to the Supreme Court in terms of how the Amending Formula for the Constitution should be interpreted has other far more dangerous implications. It in essence attempts to undermine the broad consultative aspects of the Amending Formula in an effort to put the power to change things firmly in the hands of the Federal Government in Ottawa.
If, as the Harper Government argues, the Senate can be ignored in matters involving Senate reform, then what is to stop a future government from randomly amending other aspects of the Constitution without implementing the Amending formula as it is written? In essence, the Harper Government is trying to put itself in a position where it is not meaningfully bound or limited by the Constitution, and would therefore be free to arbitrarily implement changes to aspects of the Constitution which it finds inconvenient - such as the Charter of Rights and Freedoms, which has long been a thorn in Harper's side because it stands quite firmly between the TheoConservative Base's desires and Harper's authoritarian streak.
Now that we have a copy of the Senate Reference itself available, I will no doubt spend some serious time analyzing it. If it is anything like other aspects of the Harper Government's agenda and ethos, I imagine it will be a disastrous for Canadians should the SCoC allow key aspects of their arguments to stand.