What do we really want to do with the Senate?

It is incredibly unfortunate, though not at all surprising, that a debate about the Canadian Senate is occurring in the context of scandal implicating a handful of senators.

The Mike Duffy affair, which has implicated the Prime Minister’s Office, the personal and legal issues facing Patrick Brazeau and a general concern about expenses implicating them and other senators has instigated overwhelming support for change, with a massive majority of Canadians supporting reform or abolition. One recent poll suggests a meagre 6 percent of Canadians support leaving the institution as it is. Coupled with a set of reference questions the federal government has put to the Supreme Court of Canada about the Senate, including what it would take to establish term limits and advisory elections and to abolish the Senate altogether, it is clear the debate will be on the public agenda for months (the Court is set to hear arguments about the reference in November).

Less clear is whether people have thought through the implications of what reform or abolition would mean. The premier of Prince Edward Island, Robert Ghiz, is under the completely erroneous assumption that if we abolish the Senate then PEI would lose most of its seats in the House of Commons. The language of the Constitution is clear on this: by virtue of the wording of section 41(b) of the 1982 Constitution Act, which I strongly encourage Premier Ghiz to read, PEI cannot lose any seats barring an amendment passed with the consent of all provinces and the federal government, regardless of the status or existence of the Senate. Who knows how many of his constituents are now basing their opinion about Senate reform on an utterly false premise.

Also unclear is whether people have given due consideration to whether reform or abolition is feasible. Any major changes to the Senate’s powers require consent of seven provinces representing at least half of the population. Anyone alive in Canada during the 1960s, 70s, 80s or 90s knows how difficult gaining that sort of consensus can be; the last effort at major constitutional reform arguably led to the near-breakup of the country in 1995.

To completely abolish the Senate, in my opinion, would require the approval of all ten provinces. This is because the Senate itself is referenced in the constitutional amending formula and to make any changes to the formula requires unanimity. Some scholars have pointed out that section 47 allows for constitutional amendments without the Senate’s approval (it states that amendments can proceed 180 days after the Senate fails to give its approval so long as the House of Commons provides a second approval) and thus we should be able to effectively castrate the Senate under the 7/50 rule. But doing so would mean an automatic 180-day delay on all future amendments to the Constitution (those familiar with the failure of the Meech Lake Accord would acknowledge this is less than ideal).

Mind you, none of these facts should translate into an argument that formal constitutional change should be avoided at all costs. We should be able to act collectively like grown-ups on occasion, especially when there is considerable consensus.

The problem with the Senate debate is that the consensus is illusory. Discounting those who are fine with the status quo or do not care, roughly half of people polled favour reform, the other half abolition.

Those who favour reform need to start from first principles. It is one thing to make the case that the current situation is unpalatable, it is another to answer the question “what should the Senate be for?” Let’s accept at face value reformers’ arguments that the system of patronage appointments that governs Senate selection is not only undemocratic, but that it has also irreparably damaged the institution’s reputation. That does not tell us what to replace it with. The pertinent question may not be whether any reform is necessary but whether particular reforms are desirable. This could range from something as modest as an approach that seeks to better hold the prime minister accountable for bad appointments to one that would see the Senate’s powers dramatically reduced, or Senate elections, or both.

Yet all of these ideas are debatable. If the key concern is democratic legitimacy and the implicit answer is to hold elections, it might be worth thinking about whether this would simply be creating another House of Commons, a check on the lower house that does nothing but add another layer of partisan buffoonery. Perhaps that is unfair.  Another layer of democratic control may be desirable. It works for the United St… well, er, Australia. It seems to work for Australia.

Another issue is whether there is anything about the current Senate that we would like to retain. Despite its bad press, the Senate routinely provides thoughtful insight into a host of policy issues. Its committees are often exemplars of the “sober second thought” defenders of the status quo cling to. It has recently imposed its will on the legislative side as well, although from the perspective of democratic reformers this is only more proof change is needed.

If we cannot agree on how to remake the Senate, perhaps abolition is the best way to go. If reformers need to outline a plan on what the Senate should be, abolitionists need to outline how they will get provinces like PEI on board. Oh, and how they will get Quebec—or other provinces, mind you—to agree to this specific constitutional change but no others. I must admit to disliking this argument—the assumption that we “open” the Constitution like it is Pandora’s Box and we cannot deal with a single, important issue without the provinces clamouring for Distinct Society clauses or a National Strategy on Pipelines/Pandas/the Hazards of WiFi—but I am afraid I cannot point to any evidence that this is not exactly what would happen.

But before we engage in a fantasy epic worthy of George R. R. Martin, or even before we hear back from the Supreme Court about how to change the Senate, is it too much to ask for a debate about what we want to change first?

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role is now out on paperback from UBC Press.