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Politics Court says Harper must consult provinces before reforming Senate

Preparing the Senate chamber for the Throne Speech.

CHRIS WATTIE/REUTERS

Ottawa's plans for the unilateral reform of the Senate have been rejected as unconstitutional by the Quebec Court of Appeal, which relied on a 1979 ruling by the Supreme Court of Canada to come to its decision.

Experts said the survival of the federal government's legislation on Senate elections now depends on the Supreme Court's willingness to revisit its 34-year-old decision when it hears its own reference on the matter.

The legal debate surrounding the future of the Senate is at the top of the country's political agenda, with the continuing scandal over expense claims and the government's stated desire to either reform or abolish the much-maligned institution.

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With Bill C-7, Ottawa is proposing to call on the provinces to hold Senate elections and to limit senators to nine-year terms. In a bid to pre-empt the opposition of the provinces, the government has referred the matter to the Supreme Court to obtain its ruling on the legality of the proposal. Hearings on the matter are scheduled next month, with a decision expected next year.

However, the Quebec government has already sent its own reference to the Quebec Court of Appeal, which has a strong voice on the matter, although not one as authoritative as the Supreme Court.

In a unanimous decision on Thursday, the Quebec Court of Appeal ruled against Ottawa's proposal, stating it would need to be adopted with the assent of two-thirds of the provinces, representing more than half of the country's population.

The Quebec Court of Appeal ruled the proposed changes were of a constitutional nature and must respect the amendment formula that was brought in as part of the 1982 repatriation of the Constitution. As part of its arguments, the Quebec Court of Appeal relied on a 1979 reference to the Supreme Court that rejected unilateral changes to the Senate. In addition, the Quebec Court of Appeal referred to the original intentions of the Fathers of Confederation in having a non-elected chamber of Parliament.

University of Ottawa law professor Benoît Pelletier said that when the Supreme Court rules on the matter in coming months, it will have to decide whether to uphold or change its 1979 ruling.

"That is the big question," Mr. Pelletier said.

The federal government said it will "take note" of the Quebec Court of Appeal's decision, while waiting for the Supreme Court's opinion on the matter.

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"We continue to believe the status quo in the Senate of Canada is unacceptable. The Senate must be reformed or, as with its provincial counterparts, vanish," said Pierre Poilievre, the federal minister of state for democratic reform, in a statement.

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