Tuesday, November 12, 2013

History in the Supreme Court of Canada

Today one of the (federal) Crown's legal counsel, Robert Frater, took up the government's case in the reference question put to the Supreme Court of Canada.
Frater began his arguments by reminding the Court the Senate has been changed unilaterally in the past, in 1965, when the retirement age for senators was set at 75 years. Before then, senators were appointed for life, and Frater pointed out at least 20 judges served into their 90s and two reached 100.
But under the terms of the BNA Act prevailing in 1965, the federal government alone was entirely within its powers in amending the term of appointment of senators from life to 75 years.   You could read about it in the Commons Debates for that year.

An entirely different clause of the BNA Act covered the lifetime tenures of superior court judges. When the Diefenbaker government decided in 1961 to proceed by constitutional amendment to oblige the judges to retire at 75, it secured the consent of every single province in Canada before formally requesting the British parliament to make the amendment. Frater's bit about the judges would seem to go against his argument here.

Dief's amendment terminated all the over-75 judges at once.  Pearson's Senate retirement bill left unchanged the life appointment of sitting Senators; it was purely for future appointees.  But fearing the Senate might actually defeat the bill, they did offer generous pension terms to any senator willing to retire voluntarily.

Never heard that any Supreme Court of Canada judges read this blog. No doubt they will do fine without it.
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