How the Supreme Court sh ut the door on Senate reform
Earlier this month, an Angus Reid poll reported that Canadians overwhelming support either reforming (45 per cent) or abolishing (41 per cent) the Senate. Only 14 per cent favour the status quo. These numbers have been constant for the past decade. But thanks to the Supreme Court’s decision one year ago today, we are at risk of being stuck with the status quo for at least another generation. It did not have to be this way.
The Senate Reform Reference gave the Supreme Court the opportunity to break our nation’s political and constitutional gridlock over Senate reform. Instead, the court gave us a decision that throws even more obstacles on the path to either reforming or abolishing an institution that has ceased to serve any useful political purpose.
In earlier analogous cases of political deadlock and constitutional ambiguity — the Patriation Reference (1981) and the Quebec Secession Reference (1997) — the Supreme Court crafted compromise rulings that facilitated subsequent resolution by elected governments. In the former, then Prime Minister Pierre Trudeau was confronted with conflicting constitutional claims over his attempt at unilateral patriation of Canada’s Constitution. In the latter, then Prime Minister Jean Chretien was attempting to block Quebec’s attempt at unilateral secession from Canada.
In both these earlier cases, the Supreme Court engaged in what Peter Russell has described as “bold statecraft (if ) questionable jurisprudence” to give partial victories to both sides of the conflicts and return the issues to the political arena for resolution. Given these precedents, Prime Minister Stephen Harper had reason to believe that the worst the court would give him would be this kind of “halfloaf ” result.
Instead, the court slammed the door shut on Senate reform, save through formal Constitutional amendments that would require the support of either seven (consultative elections) or all 10 provinces (abolition). These options would open the Pandora’s box of Meech Lake and Charlottetown, a path that neither Harper nor any other sane Canadian wants to revisit.
The court’s sweeping dismissal of the government’s proposed reforms would of course be acceptable — indeed, laudable — if the law on the method of selecting senators were clear and compelling. In fact, it is anything but. There were at least two clear and simple interpretive paths to allowing some form of consultative elections and returning the Senate reform issue back to the political forum, as the court has done before, but chose not to here. Instead, the court provided two contradictory and unpersuasive arguments to defend the status quo.
The court repeatedly invoked the mantra that the “Senate’s fundamen- tal role as a chamber of sober second thought,” to defend the appointed Senate from the alleged dangers of consultative elections. According to the court, the framers’ “intention was to make the Senate a thoroughly independent body … in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives.”
Whatever the framers’ intentions may have been, the Senate has been neither independent nor non-partisan for the past 100 years. And often not very sober either! Today’s Senate is a political rubber stamp organized along strict party lines, and its members routinely follow the directions of the prime minister or the party to which they owe their seat. The court is defending an institution that doesn’t exist today, and may never have existed. As an argument that is at the very core of the court’s decision against consultative elections, this legal fiction utterly fails to persuade.
The court also tried to defend the Senate status quo on the grounds of federalism — that it provides “a distinct form of representation for the regions” and “assure (s) their voices would continue to be heard.” But again, there is a yawning gap between reality and whatever the framers intended. Today there is virtually no communication between provincial cabinet ministers and their province’s Senators. Senators receive their appointments thanks to the patronage of a current or former prime minister. When it comes time to vote on any bills affecting the interest of the province, party discipline trumps whatever provincial loyalties a Senator might have.
Ironically, the consultative elections proposed by the Harper government would break, or at least weaken, the yoke of party discipline and make Senators more effective voices for regional interests. The court’s defence of the Senate status quo on federalism grounds is even less persuasive than its bicameralism argument. If the Senate were abolished tomorrow, nobody outside of Ottawa would even notice, and it would have no material effect on the functioning of Canadian federalism.
Unlike the earlier precedents, in the Senate Reform Reference the court gave Canadians only questionable jurisprudence and no statecraft. As a result, we are at risk of being stuck with a dysfunctional and discredited second chamber for another generation. This is a loss, not just for the Harper government, but for Canadian democracy, and the Supreme Court responsible for its contribution to this sorry state affairs.
Morton: ‘We’re at risk of being stuck with a dysfunctional Senate for another generation.’ The options given by the court would open the Pandora’s box of Meech Lake and Charlottetown, a path that neither Harper nor any other sane Canadian wants to revisit