A recent decision by British Columbia’s highest court just weaponized intersectionality, opening it up for courts in Canada and the U.S. to do the same.
Last week the Canadian Supreme Court wisely rejected the government’s plans for Senate reform in Reference Concerning Reform of the Senate. The Harper government had proposed a number of changes, including the popular election of senators, through a simple Act of Parliament without a constitutional amendment and this, said the Court, the government could not do. The government had even contemplated abolishing the Senate altogether, and all of this was entirely inconsistent with the scheme of government enacted in the British North America Act. The Senate is an integral part of the government, the Court held, and absent a constitutional amendment it must remain an appointed and not an elective body. “Introducing a process of consultative elections for the nomination of Senators would change our Constitution’s architecture, by endowing Senators with a popular mandate which is inconsistent with the Senate’s fundamental nature and role as a complementary legislative chamber of sober second thought.”
What the Fathers of Confederation had rejected was an American Senate, with the gridlock of the separation of powers. Of course, the government must have expected this, and the Reference was little more than a bit of red meat tossed to its Alberta base, by way of diverting them from more substantive questions.