It’s not that the Supreme Court thinks the Senate is perfect. It’s just that Canada’s top court has decided that any attempt at repairing or replacing the benighted Red Chamber needs to be as complicated, arduous and unlikely as possible. So are we really stuck with a Senate everyone hates?
Prime Minister Stephen Harper’s plan to use consultative provincial elections to supply nominees for the Senate as a way of making it more accountable was nixed by the Supreme Court last week because it would “fundamentally alter the architecture” of an appointed upper house. The same goes for imposing terms limits of any length on senators. Such changes, the justices declared, need the approval of seven provinces constituting at least 50 per cent of Canada’s population. Abolition, as this magazine has recommended, requires unanimous provincial consent. Anyone with a passing knowledge of federal-provincial relations and/or cat-herding knows either standard is well nigh impossible.
In stonewalling every effort at incremental change, the justices spent considerable time emphasizing the intentions of Canada’s Fathers of Confederation. They quoted Sir John A. Macdonald’s famous line from the 1865 Confederation debates that the Senate should be a source of “sober second thought” on federal legislation, as well as a bulwark for regional interests. It is unfortunate, however, that the judges didn’t wander a bit further into those 1865 debates. If so, they might have come across the prescient warnings of Christopher Dunkin, Quebec legislator and noted skeptic of the proposed Senate.
Dunkin argued that a Senate filled with federal appointees, having no real legislative authority and lacking effective financial oversight of government, “to be a very near approach to the worst system which could be devised in legislation.” An upper house “representing no public opinion or real power of any kind,” he observed, “can never tend to good.”
Dunkin was right. Sir John A. and the rest of the Fathers of Confederation—who imagined a Senate filled with learned, land-owning elites improving on federal legislation through their years of wisdom and insight—would be aghast at what it has become today: largely a collection of political hacks, allies, donors and failed candidates who rouse themselves from slumber mostly to defend their own expense claims. If we could transport them through time, those framers of Canada’s original constitution would be the first to demand immediate changes to the Senate.
Where do we go from here? Despite the straitjacket fitted over the current Senate by the Supreme Court ruling, there are still a few options to consider.
Liberal Leader Justin Trudeau has recommended unhooking the Senate from party rule. The first step was tossing Liberal senators from his caucus. But the rest of his plan—a federal-appointments panel to offer up non-partisan Senate nominees in the same manner as the Order of Canada—may well be just as substantive a change to the Senate’s architecture as Harper’s consultative elections, and could be equally off-limits. Plus, it’s worth asking whether it’s possible, or even desirable, to create an entirely independent Senate lacking any party connections to the House of Commons. Shifting the appointments process fully to the provinces might have some promise, if only because the provinces are likely to give their approval. But this offers its own set of risks.
Other recommendations on the table include a new round of constitutional conferences to craft a federal-provincial consensus on Senate reform. Alternatively, a national referendum could be held to gather public input on such a process. Given the painful experiences of Meech Lake and Charlottetown, however, the Harper government has rejected both options out of hand. It’s hard to imagine another party embracing such a thankless crusade any time soon.
Perhaps the only viable current option is for Harper to return to his old approach to the Senate: ignore it. During his first three years in office, he appointed just two senators: elected Alberta representative Bert Brown and cabinet minister Michael Fortier. As the vacancies piled up, Harper faced no constitutional problems arising from his inattention; he only changed his mind during the coalition crisis in late 2008, when it appeared his government might fall. (Then he set a record by naming 18 new senators in one day. To date, he’s appointed 59.)
Starving the Senate of senators to prompt change might be the most cynical of all possibilities. But the Supreme Court didn’t explicitly forbid it. And the sight of a near-empty Senate limping into oblivion sometime in the future might well provide the requisite sense of urgency and agreement for either reform or abolition that’s currently lacking—sometime in the future being the best Canadians can now hope for when it comes to fixing our long-broken Senate.