Editorial: Canada’s legal, institutional paralysis

Prime Minister Stephen Harper’s comments following the Supreme Court’s ruling on the Senate reference last month summed up the paralysis Canada finds itself in on so many fronts.

“Essentially, this is a decision for the status quo, a status quo that is supported by virtually no Canadian,” he said in reaction to the top court’s ruling rejecting the federal government’s bid to unilaterally reform the Senate through elections and fixed terms for senators.

The Supreme Court had good reason for ruling as it did. Given that s. 42 of the Constitution Act requires the approval of the House of Commons, the Senate, and seven provinces representing 50 per cent of the population for any amendments that would alter the fundamental powers or method for selecting members of the upper chamber, it was clear the government was on shaky legal ground in trying to proceed on its own. But with issues like the bid to set up a national securities regulator and even government attempts to muscle changes to labour contracts suffering similar fates in the courts, Canada seems like a country where it’s difficult to make major changes to much of anything.

That’s not to say it’s not valid to require provincial consent for fundamental reforms to institutions like the Senate. Given our years of unity battles, it’s certainly wise to have a broad consensus lest we once again alienate a particular region of the country. And even absent the legal restrictions, it’s clear it would be politically unwise to push major reforms forward without the agreement of essentially most, if not all, of the provinces.

But the government’s proposed reforms, while significant, were certainly logical and reasonable. Given the widespread disdain of the Senate as it stands, most Canadians would likely have viewed the elections and term limits as an improvement, albeit an imperfect one, to the status quo. Instead, we remain, as Harper noted, stuck with the unpopular status quo as it’s unlikely the government will ever get the degree of consensus needed to move forward without opening a constitutional can of worms and risking a ruckus in some region of the country.

From a purely logical perspective, that’s too bad. We should be able to deal with an institution like the Senate that so many people dislike in its current form. The likely answer to the dilemma, then, is piecemeal change. Rather than bold moves, Canada is a country where we’ll often have to live with incremental reforms over time. Politicians should take note.
Glenn Kauth

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

Upcoming FACL conference focused on AI’s impact on profession, advancing careers of Asian lawyers

Legal Innovation Zone launches program to help legal tech entrepreneurs turn ideas into businesses

Law Foundation of Ontario forms strategic partnership with Indigenous Peoples Resilience Fund

Ontario Superior Court upholds the College of Physiotherapists’s authority over billing inaccuracies

Housing supply needs more public-private collaboration, less red tape, say lawyers

Judicial vacancies holding up construction litigation: litigators

Most Read Articles

Ontario Court of Appeal resolves access rights between parents and maternal grandparents

Ontario Court of Appeal upholds dismissal of statute-barred personal injury claim

Judicial vacancies holding up construction litigation: litigators

With new federal funding Pro Bono Ontario expanding program for Ukrainian nationals across Canada