Are we headed toward a referendum on the Senate?

It looks like the issue of the Canadian Senate, as controversial as it is these days, is going to be with us for some time. There is even a good chance that it will be front and centre during the next federal election campaign in 2015.

In the interim, it now looks like Harper’s Senate reference case ( Bill C- 7) to the Supreme Court of Canada could be adjudicated in the next eight to ten months or so. There is already speculation that the Supremes will come down on the side of the provinces - that is, abolition of the Senate could not happen without at least the support of a majority of provincial governments.

Recall that the Supreme Court has already ruled on a 1979 reference case, where it rejected as unconstitutional any effort by Ottawa to unilaterally reform the Senate.

That ruling would also be consistent with the recent unanimous decision from Quebec’s Court of Appeal that called for the “7/ 50” amending formula ( the consent of seven provinces representing over fifty per cent of the Canadian population) to be followed before Ottawa can proceed with any reforms. As the Court itself opined: “It follows from the principle of supremacy of the Constitution that political actors must comply with its text and its spirit. They cannot circumvent it on the pretext that the constitutional amending process is complex or demanding. To do so otherwise would disregard the principles of federalism, constitutionalism and the supremacy of law.”

While the Quebec Court did not specifically rule on the legal question of abolition, it’s hard to imagine that it would allow for the elimination of the Senate without some form of endorsement from the Quebec government.

If the Supreme Court issues a similar position, Prime Minister Stephen Harper could place the thorny question of Senate abolition before the Canadian people some time in 2014 or early 2015. He could then seek to utilize the referendum outcome for electoral purposes in 2015.

It’s worth remembering that the Justin Trudeau- led Liberals are on record as supporting reform as opposed to complete abolition of the Senate. The federal NDP, on the other hand, has been consistent in its view that the Senate has to go.

This, of course, raises a very interesting political question: if the Supreme Court concurs with Quebec’s Court of Appeal ruling on the need for provincial consent, would Stephen Harper still move forward with a referendum on Senate abolition? More important, if there is a slight majority of Canadians in favour of getting rid of the Senate in a national referendum, or Harper gets re- elected on the strength of a campaign platform to abolish the Senate, will he then defy the Supreme Court decision? That, of course, would see the Harperites recklessly heading down an unconstitutional path?

Perhaps he would return to the top court armed with the support of the Canadian people and place the abolition issue before the justices again— and angling for a much different result. Or, Harper could use an affirmative referendum result to put additional political pressure on provincial premiers to fall into line on abolition.

But how would provincial premiers in Atlantic Canada - where the Senate was initially designed to protect their smaller stature in the federation— respond to such a drastic move? Would they remain quiet in the face of outright abolition? P. E. I. Premier Robert Ghiz, the dean of premiers these days, is on record as supporting reform of the Senate along the lines of a Triple- E model. And newly- minted premier Stephen McNeil in Nova Scotia has also expressed reservations about altogether abolishing the upper chamber. He is more partial to an elected Senate.

The reaction of Quebec would be particularly important here. It’s hard to imagine that Pauline Marois’ government would respond positively to such a move by Stephen Harper. More than likely, she would seek to turn this dust- up into an opportunity to push her sovereigntist agenda and paint the federal government as exceedingly heavy- handed and disrespectful of provincial jurisdiction.

If Harper did move unilaterally on Senate abolition, then, we could be in for a fullblown federal- provincial war. And this could obviously have grave implications for the unity of the federation moving forward. Is demolishing the Senate worth that? I would hardly think so.

Here’s hoping that cooler heads prevail, and the anticipated Supreme Court ruling is accepted fully, and the whole Senate issue goes back to being largely confined to university seminar rooms. Peter McKenna is professor and chair of political science

at the University of Prince Edward Island.