Canada’s Upper Chamber has come under fire in recent months. The Senate spending scandals have enraged public opinion to the point of screaming bloody murder in the vein of abolition. These outcries have conveniently coincided with the federal government’s reference questions brought before the Supreme Court of Canada. These questions aim to clarify Ottawa’s power to reform or abolish the Senate.
The three day question period within the Supreme Court has amounted to an impending battle for Constitutional change. Though as Canadians already know, this process is littered with roadblocks and red tape.
Yet, the Upper Chamber has undoubtedly become a stale body loaded with partisan interest. It has failed to achieve its original purpose of regional representation. Worse off, this body lacks any democratic legitimacy via public accountability. None of which seem to fit within the ruling tenants of responsible government.
The Senate is composed of appointed Senators that are allotted age limits, not term limits. Senators are handpicked by the Prime Minister based on unwritten conventional conduct. They comfortably remain in the Upper Chamber until they retire or reach the ripe age of 75.
There are currently five procedures for constitutional reform laid out in the Constitution Act of 1982. This Act legally and constitutionally replaced the out-dated requirement of seeking British approval. The five procedures each relate to specific amendment characteristics.
Amendments pertaining to the powers of the Senate; the method of selecting Senators; provincial representation; and residence qualifications require an agreement of two-thirds of the provinces containing at least 50% of the population. This is commonly referred to as the 7/50 or “general” rule (s.38).
Those concerning the office of the Queen, the Governor General, Lieutenant Governors; the right of a province to a number of members in the House of Commons not less than the number of Senators that province is entitled to; the use of the English or French language; the composition of the Supreme Court; and an amendment to this section require the unanimous consent of all the provinces (s.41).
Amendments not relevant to all provinces, but the ones directly affected by constitutional change require the agreement of only those affected (s.43).
Similarly, amendments of provincial constitutions are to be carried out solely by the provincial legislature in question (s.44).
Lastly, Parliament may exclusively make laws amending the Constitution in relation to the executive government of Canada or the Senate and the House of Commons which can be carried out unilaterally by the federal legislature (s.45).
However, previous attempts to amend the Canadian Senate aggregate an exhaustive number of failures in trying to bring about any real change or democratic legitimacy. Even the simplest of reforms amount to a lengthy legislative process.
The Constitution, however, is not meant to be easily altered. Considering this legislation contains so many important aspects of governance, if the government was granted the ability to easily tweak it, the outcomes could be catastrophic.
The government’s recent and historic question period sought to address if the federal government could bring about constitutional change with regards to four specific amendments.
Firstly, can the federal government enforce consultative elections at the provincial level?
These elections would by no means bind the Prime Minister to appointing favoured candidates. Instead, any proposed Senators stemming from consultative elections amount to suggestions voiced in the wind. Harper’s idea, in this respect, is to protect the prime ministerial power to appoint while sidestepping the direct public election of senators. Meaning he could still stack the Upper House with all his Conservative friends and ensure strong legislative power, but seem interested in public recommendations.
Secondly, can the federal government impose a term limit of nine years?
This ideal promotes a more suitable form of democratic legitimacy as senators would not be guaranteed a lengthy free ride well into their senior years – unless of course they were to improperly claim the expenses of that ride.
Thirdly, can the government do away with a requirement that Senators must own at least $4000 in property?
And fourthly, can Ottawa unilaterally bring about abolition?
The intense question period in the Supreme Court has come to an end, and the Court has yet to provide its answers. The outcomes, however, seem to be fairly predictable.
Given the Senate is a legislative body meant to ensure regional representation, in no way will the federal government be able to abolish the Upper Chamber without unanimous consent.
Both consultative elections and the imposition of term limits would most likely require unanimous consent or agreement under the 7/50 formula.
The removal of the $4000 property ownership requirement seems to be the only amendment that the federal legislature could unilaterally enforce considering most provinces are on board with it, and its outdated history.
With that being said, it is important to understand that unanimous consent and even the 7/50 procedure are unlikely to ever be achieved. This is in part due to the unequal representation within the Upper House, as well as the conflict of provincial interests.
For example, Prince Edward Island, a province of fewer than 150,000 people, is allocated four Senate seats, while British Columbia, a province of over 4.4 million, is only allocated six.
The overrepresentation of Maritime Provinces means they will be less likely to sacrifice their position of power within the Senate to allot equal representation to the Western provinces.
As a result, the alienated periphery provinces of the West may turn to provincial legislature, and therefore become less willing to cooperate with federal reform proposals.
Similarly, if the need of unanimous consent is required to abolish or bring about serious Senate reforms, abolitionists can hang up their hats now. This is because there has never been consensus between the provinces on any constitutional amendment, nor will there probably ever be.
The difficulties of reform stem from issues of agreement and conflicting opinions.
Though outright abolition would free up public money, it would undermine a bargain set in place by the founding fathers, which offered smaller provinces regional representation by joining in the federation.
Therefore, Canadians should not be screaming for abolition, but rather be directing the government and provinces toward democratic reforms.
As Senate Speaker Noel Kinsella, a distinguished academic known for his human rights work asserted: “Students of freedom do not tear down the institutions which limit the awesome power of the state; rather they strengthen these institutions to enable them to bridle or fetter this power.”
The Senate was originally devised to not only offer regional representation, but to also stand as an independent body of regulation, as a second sober sitter in the process of law making. In this regard, the Senate is meant to review legislation and halt the passing of rapidly formed partisan bills.
Clearly the process of appointment has its drawbacks, given the recent scandals, but even the development of an elected Senate body has its downsides.
Not only would the turnover time to form a newly elected Upper House take years, but there is a future potential for a legislative gridlock. An elected Senate would be more likely to stop the passage of laws as they would have the democratic legitimacy to actively enforce their powers – unlike the Senate of today.
Furthermore, the idea of having two publically elected bodies in government would undoubtedly lead to an even greater battle royale of conflicting interests.
Therefore, citizens and government alike should be pushing towards a reformed Senate that allots renewable term limits with a greater degree of public accountability.
In the words of the great George Brown, we should seek a Senate that will “stand up for the public interest in opposition to hasty and partisan legislation.”
How do we go about achieving this is a different story altogether, given the difficulties of amending the entrenched Canadian Constitution.