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Senate reform may suffer same fate as Nadon, legal experts say

The Supreme Court of Canada building is shown in Ottawa.

DAVE CHAN/The Globe and Mail

The Conservative government's plans for Senate reform may be headed for the same fate as the appointment of Marc Nadon – rejection at the hands of the Supreme Court, some legal observers say.

The parallels are hard to miss. In each case, the federal government asked the Supreme Court if Ottawa could unilaterally change important features of a key Canadian institution – in one case, how Supreme Court judges from Quebec are appointed; in the other, how members of the Canadian Senate are chosen. Ottawa wants to hold regional elections for senators.

In Friday's 6-1 ruling that turned thumbs down on the appointment of Justice Nadon, the court said the Supreme Court is a vital part of the country's constitutional fabric. Any changes to the composition of the court need the unanimous consent of the provinces, it said.

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If that were not the case, the court said, Parliament could abolish the court on a simple majority vote.

"What the court says here about the amending formula [in the Canadian Constitution] has salience in the Senate reference context," University of Toronto law professor David Schneiderman says. "In other words, Harper is likely to lose that one, too."

Paul Daly, an administrative law professor at the University of Montreal, said the link between the two cases is not "definitive, but certainly there are some warnings – particularly a reference to the 'essential features' of the Supreme Court." The court is likely to be concerned about unilateral federal action that would change the "essential features" of the Senate, he said.

By entrenching the Supreme Court in the Constitution, and by barring unilateral changes to how Quebec judges are appointed (by law, the court has three judges from Quebec), the ruling "seems to me the loudest and clearest statement that Quebec has a special place in the Canadian federation," Mr. Daly said.

The precedent could be applied if Ottawa tried to insist on bilingualism, or gender or regional balance, on the court. "This sets the framework for providing whether it can be done outside of the [constitutional] amendment process," he said.

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