In their rejection of Stephen Harper’s plans to unilaterally impose piecemeal reform onto the Senate, the Supreme Court of Canada not only upheld the position of Team Status Quo with regard to the Senate, but also upheld the constitutional reality of the institution. And while the end result wasn’t surprising, and that the current government’s too-cute-by-half arguments that narrowly parsed the language of the constitution while conveniently ignoring its overall structure were resoundingly rejected, it should also serve as a wake-up call to would-be reformers out there.
The Senate has long been the repository of the hopes and dreams of the political class in this country, who imagine the institution to be something other than what it really is, and who project all kinds of notions onto it. This includes those who believe that the Senate has only one purpose, such as to represent the provinces full stop, or that there is only one kind of federalism represented by that chamber. There are also many competing visions of a future reformed Senate that have all been consistently half-baked and out of touch with any contemporary reality, be it the “Triple-E” model espoused by the Reform Party, or some fantasy benevolent volunteer body that the NDP have more recently come to espouse on the road to abolition (their hopes for which the Supreme Court also confirmed to be nigh impossible given the need to employ the unanimous amending formula).
We have already heard grumbling from some quarters of the commentariat that the Supreme Court was looking at the unrealistic and idealized model of the Senate that the constitution espouses, but I would reject that line of reasoning as well for the sheer sake of a broader perspective. While there may be the odd bad apple in the chamber from time to time, and while the Senate may have its rough patches — such as the more partisan state at present, brought about largely through Stephen Harper’s own neglect in refusing to make timely appointments until he flooded the chamber in a panic and unbalanced the ability of new senators to properly integrate — the overall history of the chamber is one that has worked according to design.
The Supreme Court reaffirmed that design in their ruling — that it is a complementary legislative body of sober second thought, not one which is supposed to be in competition with the Commons. The Commons is elected and the Senate is selected in order to achieve that balance, and that by giving senators a tenure that lasts the remaining duration of their professional lives, it provides not only a long-term perspective by which to look at the legislation that is before them, removed from the partisan arena of short-term thinking and electoral calculus, and it provides them with the institutional independence to speak truth to power when need be. Any reforms to the Senate must now take these factors into consideration when it comes to altering the fundamental character of the chamber, thus triggering the constitutional amending formula. While Stephen Harper liked to say that his proposed piecemeal reforms wouldn’t have made substantial changes, the Court did not agree in the slightest and called out those arguments as being flawed.
So where do we go from here? Harper, with no interest in opening negotiations with the province, mumbled something about keeping the chamber as accountable as possible and wants to reduce its costs, but it’s vague at best. The Liberals plans of a kind of appointments commission is unlikely to run afoul of these guidelines so long as the prime minister makes the appointments based on a short list and it’s not the commission doing the actual appointments. And the NDP insist that they will engage the provinces to work toward abolition, but are likely to do their utmost to hobble it in the interim, likely by trying to restrict its budget or operations, or by refusing to make appointments to encourage further dysfunction.
Of course, the word that has made a resurgence in the debate, including from some sitting Conservative cabinet ministers, is a referendum, in particular on abolition. It is already becoming a populist rallying cry, ignoring the fact that in liberal democracies, minority rights are protected from such populist excesses and that from its very outset, the Canadian Senate in form and function has been fundamentally a chamber of minorities, be it minority provinces, linguistic or religious minorities as they existed in 1867, or the kinds of representation of women or other ethno-cultural minorities that the Commons has been less able to do in the time since.
The argument goes that a national referendum would force the hands of the premiers into signing onto an abolition plan, and that they would reject it at their peril. The logic of that particular bullying argument falls apart, however, when you break down how the results would work. Would the Maritime provinces, whose rights the Senate was explicitly set up to protect as minority provinces, really sign away those rights and protections based on the populist outcry against the mythologized version of a “corrupt and bloated” Senate that rules in the public consciousness? Or would their own common sense prevail in that they have those guarantees to representation that the Senate currently provides? And if they are in the minority of the rest of the country’s referendum results, should they simply be expected to roll over? Again, it’s why we are reminded that populism is not democracy.
At some point in the future, we may very well have occasion to discuss reforms to our upper chamber, but what has been on offer to date has been lacking in both form and substance. If anything, this ruling may force proponents to get serious about what it is they envision. But in the meantime, we should remember what we really have, and work to make the best use of a system that really does work well on the whole.
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