Some support reforming Senate by abolishing it
We have, it seems, reached a critical moment in the life of the Senate: the moment when the cause of Senate reform became the cause of Senate abolition.
A number of prominent advocates of reform — including Ted Morton, the former Alberta cabinet minister (and one-time elected Senator-in-waiting), the Canadian Taxpayers Federation, and Brad Wall, the premier of Saskatchewan — have lately come out publicly in favour of abolition. (Wall is reported to be readying legislation for the fall to that effect — though he seems to have neglected to tell his caucus of this.)
To be sure, reform remains the preferred alternative for many. But abolition is now seen in some quarters, not so much as an alternative to reform as the prerequisite for it. Considering the failure of the current efforts at reform, Morton wrote in the National Post, “it might be better to adopt a two-step approach. First, wipe the slate clean by abolishing the current Senate. Then start from scratch in designing a new model for an elected Senate.” The prime minister himself is now said to be coming round to this point of view.
As long as the Senate remains in place, the thinking runs, there will
So long as the Senate remains in place, the thinking runs, there will be too many vested interests.
be too many vested interests, provincial or otherwise, with a stake in the status quo. Once it was torn down, it might be easier to come up with a reform plan that was satisfactory to all sides. Even if the attempt failed, we should at least be rid of the Senate as it is, sparing the country the embarrassment of an appointed house, well known as a den of patronage even without its recent ethical lapses, substituting its wishes for those of the democratically elected Commons.
As a political bonus, it allows the prime minister to keep step with the abolitionist New Democratic Party, while leaving the Liberals, who favour retention, offside with public opinion, which runs strongly against the current Senate — a position that is only likely to harden as further revelations emerge.
But is abolition any more feasible than reform? It has proved hard enough just to change the length of senators’ terms. How is it supposed you could abolish it altogether? Indeed, whereas major reforms to the Senate — including changes to its powers, the numbers of senators from each province or the method of their selection — would invoke the Constitution’s general amending formula, requiring the support, not only of both Houses of Parliament, but of seven provinces with 50 per cent of the population, abolition would seem to require unanimity.
Why? Because, as the above implies, the Senate’s assent is required for any amendment. And amending that — that is, amending the amending formula itself — is one of those things, like the of- fice of the Queen, for which unanimity is the prescribed threshold of consent.
But what if you didn’t try to abolish it? What if you just erased those parts of it that were eradicable through seven-and-50 and left the rest? In effect, you would have created a kind of ghost Senate, a vestigial body without powers or even members. The Senate could then be rebuilt out of this hollow shell, rather as one might gut a house before renovating it.
But hold on: how does that get around the amending-the-amending-formula dilemma? Because the Senate’s assent is not, strictly speaking, required. Another section of the Constitution stipulates that, if the Senate fails to pass an amendment that has passed the Commons within 180 days, the Commons has only to pass the same amendment again for it go forward. A ghost Senate’s “assent,” then, could be obtained simply by waiting six months.
This isn’t my idea. It can be gleaned from the text of the federal government’s reference to the Supreme Court on Senate reform, to be heard this year. Of the five questions the government has put to the court, three have to do with the changes it has been seeking to put into effect until now — limiting senators’ terms and providing some means for “consulting the population” prior to their appointment — in each case asking whether it can proceed with the support of Parliament alone or, implicitly, whether some other formula is required. A fourth asks the same with regard to abolishing the current property qualification.
It’s the fifth question that’s of interest here. “Can an amendment to the Constitution of Canada to abolish the Senate,” it asks, “be accomplished by the general amending procedure … by one of the following methods.” Among them: “by amending or repealing some or all of the references to the Senate” in the Constitution (emphasis added), or “by abolishing the powers of the Senate and eliminating the representation of provinces,” i.e. the very reforms for which the general amending formula is prescribed. The ghost Senate, in other words.
It’s a long shot. The court may dismiss this as so much playing with words. Even if it gets a pass from the court, winning the support of seven-and-50 would be no picnic. And there remains yet a third obstacle: legislation passed by the Chrétien government requiring the approval of each of Canada’s five regions (B.C. was dubbed a “region” for the purpose) before Parliament could approve any constitutional amendment — in effect “lending” them its veto.
Would the Harper government be willing to repeal that provision, and risk the wrath of the provinces (cough, Quebec, cough)? What if it took up Sen. Hugh Segal’s suggestion, and held a national referendum on abolition? Would the provinces be willing to risk the public’s wrath in that event? We are headed into some interesting waters.