How to abolish the Senate of Canada

Questions and answers about rolling up the red carpet

Sean Kilpatrick/CP

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?

Yes.

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:

  1. 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;
  2. by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or
  3. 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.




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How to abolish the Senate of Canada

  1. The Senate has no purpose.

    Get rid of it

    • No purpose other than providing some representational equality to the smaller provinces, being the only legislative assembly in our country that can look at a bill without an incentive to ignore any long-term effects in favor of short-terms ones, and the only legislative assembly in our country to be able to evaluate legislative options in the light of what might be best for the country rather than what would be popular, you mean.

      • It doesn’t provide anything, and never did.

        Beyond a payoff for friends that is.

        • Stunning logic.

          • Simple commen sense.

          • Well.. I’ll grant you the first word.

          • Trust you to make a huge complicated issue out of something ordinary and straight-forward.

            The Senate isn’t sacred ya know. Nor is it necessary.

          • That’s the thing about common sense…..

  2. Da turd option………………not withstanding.

    • This may be a joke on your part that I’m missing, but if not, a clarification.

      The Notwithstanding Clause allows a legislature to enact legislation notwithstanding the fact that it violates the CHARTER OF RIGHTS AND FREEDOMS, not the Constitution otherwise. The Notwithstanding Clause is immaterial to the discussion of Senate reform/abolition.

  3. There is an easier (but much slower) way to abolish the senate. Just stop appointing senators. After a period of time, there will be only one left. When he(she) retires at 75 or dies, appoint only one to replace them. The Senate then becomes a vestage; a rubber-stamp institution like the Governor General has become.

    • Would a PM actually be obliged to appoint a replacement when that last Senator left?

      • Acts of Parliament must be passed by both the Commons and the Senate and receive royal assent, so, yes, you would need a rump Senate to pass legislation. Also, the Constitution Act 1867 set the quorum at 15 senators, so you definitely couldn’t go down to one.

        (FWIW, I suspect there would be serious constitutional issues with a policy of not appointing new senators, since the provinces could rightly claim that they were being denied representation in the upper house, but I haven’t thought about the issue at any length.)

        • Thanks!

          I wasn’t thinking clearly about the fact that the Senate still needs to pass bills for them to become law if the Senate still exists, and the minimum number of Senators for quorum had completely slipped my mind!

  4. Completely ridiculous, pettyfogging discussion, so typical of English-Canadian media.
    There is one, and only one, practical way to abolish this Disneyland thing called the Senate: you hold a referendum during a federal general election. You make the question clear: Do you support abolishing the Senate of Canada?

    There isn’t a chance on earth that a majority of Canadians would keep this imitation-House-of-Lords in business. One referendum, no more ‘Senate’ — then let the old boys inside raise an army of English lords to overthrow the government, if they wish.

  5. If they abolish the Senate, does PEI loose their 51A protection & 3 of their 4 MPs?

    • Not by itself—there’s a separate provision in the districting law that guarantees every province at least as many seats as they had in, I believe, 1974.

      • What would it take to get you to comment here more often?

        • haha – more time in the day would be the big one.

  6. The senate is filled with good ol boys and girls who stay there til they die. How ridiculous! Most of which are from the east therefore the west is not represented fairly. How would the east feel about that if it was the reverse??? Waste of taxpayers’ money and so corrupt we’ll never know the extent of it. The ol boys club must be shutdown if only to save taxpayers millions upon millions of dollars per year.

    • In the Maritimes they complain that most senators are from the west therefore the east is not represented fairly.
      I dare you to square that circle.

  7. Senate serves no purpose except to take money from the poor
    thier large pensions insult our Canada pension maximum $800 if lucky ,
    OLD AGE $500 and we are not allowed to work and earn more.
    When a M P IN PERTH NB lost election was given a $100,000 pension
    and still works as a Doctor another $3-400,000 a year while struggling family
    of 4 with 480, between us barely make ends meet .

    Families earning less then $100,000 a year should not be taxed
    as $100,000 is poverty level.
    Thase earning over 200,000 a year should be taxed 37% up to

    • If you Harold think the poverty line is $100,000 dollars, what era are you living in? I live on $20,000 a year, and there are many more making a lot less in Canada. And Revenue Canada still expects me to pay my income tax just like anyone else. I owed approx $1700 one year, I just didn’t have any money to pay. I was threatened by lawsuit, court and jail if I didn’t cme up with the money. I just didn’t have it. I told them when I get some money I would send them some. It took me 3 years to pay them, all the while I received threatning phone calls. Yet Brian Mulroney acceped hundreds of thousands of dollars and brought it across the US/Can border, against the law, didn’t declare it and hid it in his own house safe, no tax paid and yet Revenue Canada when they found out about it, forgave Mulroney and said he didn’t have to pay the tax. Who is the bigger crook, MULRONEY or REVENUE CANADA. The little man always have to pay to support the upper crust it seems.

  8. I could think of a better way to spend the millions we waste, waste, waste, waste, on the Senate, use it to feed the homeless, the starving children etc. provide better housing for the poor I think you know what I mean. The Senators are their own worst enemies…..remember housing allowance cheating, coming to work when ever they felt like it..I could go on and on but I believe you get the point. GET RID OF THE SENATE

  9. How about the abolishing the Supreme Court if they do not come with solutions to benefit the average Canadian, not the house of commons or this clowns in the Senate!

  10. Does anyone know how we got suck a stupid system of government in the first place?

  11. SIMPLER SOLUTION – Just stop paying them

  12. The CURRENT ONE, NEED’s, to be abolished.

    What do you think will happen in the Senate,.. if Mr Harper and the Conservative Party, fails to be reelected the 2015 election, when the current, “House of Sober Second Thought”, is already STACKED to the hilt, with (mostly) APPOINTED, by Harper, Conservative Senators. ( I call it, The Harper’s Govt’s Fail Safe Plan)

    Win or Lose for Harper… Good Luck!,..To any of the opposing Parties, trying to getting “anything” passed in the Senate of the Future, if it doesn’t suit the Conservative Party….(1 of the many reasons, it needs to be ABOLISHED (at least in it’s present form,…imo.. Each party should have been equally, represented and by ELECTION, only)

  13. It would be ironic, in a sense, if the Senate is ever abolished and one of the sparks was the conduct of two former reporters. Just shows you that even though, in their former careers, Duffy and Wallin, we’re supposedly neutral and critical of politicians, they became some of the worst partisans and pigs at the trough after their nominations in the Senate!

  14. I think this should be voted on by the citizens of Canada, seems to me, the MP’s all like to have their friends hold these useless jobs. We, the taxpayers are hurting and just can not continue to support all these leeches!

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