Improper expenses. Senate resignations. Unaccountable senators. Such are the words enveloping Ottawa this week, this month, this year. The current crisis of legitimacy in the Senate, which has seen three of its own resign from their caucuses and either pay back or dispute improperly claimed expenses, has people talking about scrapping the whole thing. The NDP is at the front of the line. Tom Mulcair, the Leader of the Official Opposition, says it’s time to “roll up the red carpet” and empty the Red Chamber. He’ll campaign on abolition during the next election campaign. Amid all the bluster, there’s an important question: If Canada wanted to abolish its Senate, how would it do that?
Can the Senate be abolished?
How can that happen?
Either by a constitutional amendment backed by at least seven provinces representing 50 per cent of the population, or one with unanimous provincial consent. Experts are split on which amending formula applies.
Is anyone trying to figure out the answer to that question?
Yes. The federal government referred several questions related to Senate reform—including how to abolish the chamber—to the Supreme Court of Canada. It’s rare for the government to look to the courts for clarity on constitutional matters, but it happens. In 1996, Jean Chretien’s government asked the court about the legality and mechanics of secession, a reference that led to the Clarity Act. In 1980, Pierre Trudeau’s government asked the court about how it could repatriate the Canadian constitution.
The current government asked the court for an opinion on four matters related to Senate reform: term limits; the appointment process; qualifications; and abolition.
So the government asked the Supreme Court how to abolish the Senate?
Yes. Here’s exactly what the government wants to know.
Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act, 1982, by one of the following methods:
- by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside of the Constitution Acts, 1867 to 1982 but that is still part of the Constitution of Canada;
- by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or
- by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(1)(b) and (c) of the Constitution Act, 1982?
If the general amending procedure in section 38 of the Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent provision set out in section 41 of the Constitution Act, 1982 apply?
Those questions referenced the Constitution Act a bunch of times. Please translate all of that.
The constitution can be amended in a few ways, and each procedure is laid out contained in the Constitution Act, 1982. Two procedures are relevant here:
- The 7/50 rule: Section 38 of the Act sets out what’s known as the general amending procedure for the Constitution. That procedure comprises two conditions: a) that the House of Commons and the Senate both pass resolutions supporting the amendment; and b) that legislatures in seven provinces that cumulatively represent at least 50 per cent of the population pass resolutions supporting the amendment.
- Unanimous consent: Section 41 of the Act sets out several matters that require unanimous consent, including one that involves the Senate; namely, the right of every province to at least as many Members of Parliament in the House of Commons as Senators.
The government knows abolition would require a constitutional amendment, and it knows there are a few options. But it’s leaving it up to the court to decide
How will the court go about making its decision?
The court is currently accepting arguments. Every province and two territories, Yukon being the sole exception, are listed as interveners. Liberal Senator Serge Joyal and Independent Senator Anne Cools are also interveners, as are the Fédération des communautés francophones et acadienne du Canada and the Société de l’Acadie du Nouveau-Brunswick. The court will hold hearings over three days in November, from the 12th to the 14th.
Do we know what each province thinks about abolition?
A few provincial governments have expressed support for abolition, including Ontario, where former premier Dalton McGuinty was quite vocal toward the end of his tenure; Saskatchewan, where Premier Brad Wall, an ally of the federal Conservatives, says provinces already play a more effective role than the Senate; and Nova Scotia, where an NDP government holds the same position as its federal cousin.
Other provinces have expressed a desire for reform, instead of abolition. Prince Edward Island wants to push for equal representation, while New Brunswick hopes for Senate elections. The Maritime provinces have arguably the most to lose from abolition. Currently, P.E.I.’s four MPs vastly over-represent the province’s population, but it’s constitutionally required to maintain the same number of MPs—four—as senators.
Once we’ve figured out which amending formula to use, what are the chances of enough provinces ever going along to make abolition happen?
Slim, according to Ron Watts, professor emeritus of political studies at Queen’s University, a leading expert on federal systems around the world and an adviser to past Canadian governments on constitutional issues. “While it’s possible,” Watts says, “I would say highly unlikely.”
When will we hear the court’s answers?
The court will send down its ruling at some point after the November hearings. When? That’s up to the court.
After all the legal proceedings wrap up, what about the opinion of your average Canadian? Do we count?
That sounds like you’re talking about a referendum on the future of the Senate. One prominent supporter of that approach comes from the unlikeliest of sources: The Senate. Conservative Hugh Segal, appointed by former prime minister Paul Martin in 2005, has from the very beginning of his tenure supported a referendum on the abolition of the Senate. John Geddes wrote about Segal’s idea in 2007. In 2011, the CBC talked to the senator about his idea.
Conservative Senator Hugh Segal has twice introduced a motion in the Senate to hold a referendum on its future and he’s going to try again. His referendum would ask voters to choose between three options: abolish, reform, or keep the status quo.
And why a referendum? According to Segal, the Senate is “democratically completely illegitimate.” A referendum would embrace “the rather democratic notion that governments work for the people… as opposed to the other way round.”
Intriguingly, Segal says that if he does finesse a referendum on the Senate’s future, he’ll immediately campaign against abolition. He believes senators should be elected, so he’ll pitch that the “reform” box be checked off on the ballot.
Segal reaffirmed that position during the ongoing Senate expense controversy. For the record, a Harris/Decima poll in February found that 32 per cent of Canadians would scrap the Senate. A majority of those polled supported various types of reform, including Senate elections and term limits.
What happens next?
In the immediate future, as far as Senate abolition is concerned, nothing happens. That won’t stop the NDP from consistently calling for abolition, but the Supreme Court’s opinion is what everyone awaits. So we wait.