Territories, francophones defend Senate

Red Chamber protects minorities, court told

Francophone groups and two of Canada’s territories told the Supreme Court Wednesday that the Senate plays a critical role in protecting minority rights. But lawyers for three provinces argued that the scandal-plagued Red Chamber can be abolished without consent from all provinces.

“As an institution, the Senate in its current form is beyond repair, and the only reasonable action is to abolish it,” Graeme Mitchell told the eight justices on behalf of the attorney general of Saskatchewan.

The province’s legislative assembly unanimously passed a resolution last week calling for the abolition of the upper chamber.

Mitchell argued that unanimous agreement of provinces is “extremely difficult” to obtain and that consent of seven provinces, representing 50 per cent of the population, is sufficient for getting rid of Canada’s upper house.

It’s a stand echoed by the federal government — which addressed the courts on Tuesday — and the provinces of Alberta and British Columbia, who spoke Wednesday.

However, most provinces believe the Senate can be abolished only if all provinces agree.

Ultimately, it will be up to the Supreme Court of Canada to decide how — or if — the Red Chamber can be reformed or abolished.

Following a request from the federal government in February, the eight justices are now hearing arguments from provinces, territories, francophone groups, senators and constitutional experts so the court can determine the degree of provincial support necessary for the Senate to be changed or scrapped.

Sébastien Grammond, who appeared before the court on behalf of francophone and Acadian communities, pointed out that if abolition can happen with consent from only seven provinces representing 50 per cent of the population, this would mean the Senate could be done away with against the wishes of Quebec, New Brunswick and Nova Scotia, which represent almost half the seats in the Senate and a significant French population.

Grammond said that the interests of French-speaking communities are better represented in the Senate than the House of Commons and that abolition or significant Senate reform — such as the introduction of elected as opposed to appointed senators — would result in poorer representation of francophone interests.

“In our current parliamentary system, there’s no other institution that is there to protect minority rights other than the Senate,” said Marie-France Kenny, who is president of the Federation of Francophone and Acadian Communities, and who was watching the proceedings of the court. “We want to guarantee that our interests are protected.”

Lawyers from Nunavut and the Northwest Territories also appeared before the courts to defend the interests of their territories, which are home to large populations of aboriginal people but which have little say in constitutional change.

The lawyers argued that territorial governments should be consulted before any decisions about the future of the Red Chamber are made.

“We have one senator. We don’t want our one senator to be disestablished,” Norman Tarnow, counsel for Nunavut, told the court.

Sen. Serge Joyal, one of two senators to address the courts, cautioned against a rush to drastic change and called for some “sober second thought.”

“I think, generally, Canadians are not aware of the important role that this will play in any constitutional amendment process,” he told the courts.

The final day of hearings takes place Thursday.

Maybe we’ve got things back to front. Maybe we’re putting the constitutional cart before the horse.

The federal government, the provinces, a couple of territories and sundry other interveners are all in front of the Supreme Court arguing over how each of several possible reforms to the Senate could be enacted, according to whichever of the Constitution’s many amending formulae is held to apply in each case.

The government’s lawyers have gamely maintained that much of its short-term agenda for Senate reform — term limits, consultative elections and so on — could be pursued unilaterally.

At the other extreme, abolition, they submit, could be achieved under the Consititution’s general amending formula: seven provinces with 50 per cent of the population.

The consensus view is that the feds are out to lunch. Almost no one supports them in their first position; and while three provinces agree that seven-and-fifty is sufficient for abolition, the rest insist that unanimity is required. And if that is so, everyone seems to agree, it’s not going to happen.

If every province’s consent — and by province, of course, we mean premier — were required, then any one premier could stop it. Thus each would have an incentive to demand the moon as the price of his consent. The whole process would bog down in the same mire that sank Meech Lake and Charlottetown.

Suggest a national referendum as a solution and be prepared for the scorn that blows your way. Meaningless! No legal consequence! Whatever the people might wish, the Constitution requires the premiers’ consent to amend it. If the premiers don’t want it — if even one premier doesn’t want it — then it’s not on.

Let’s just stop and savour the implications of this. The people of Canada could vote by their millions to abolish the Senate, and it wouldn’t make a dime’s worth of difference.

An overwhelming popular consensus could be trumped by a single premier. As a matter of law, of course, this is correct. But as a matter of democratic principle, is there not something deeply wrong with this?

And so once again we come face to face with the most dysfunctional part of our Constitution: not the Senate, but the amending process. It isn’t only the Senate we’re talking about after all. The same refrain is heard in any constitutional debate: No matter what the proposed reform, it’s not worth even talking about, because — altogether now — it would mean opening the Constitution. And that can’t happen, because, you know.

Constitutions aren’t supposed to be easy to amend. But when a Constitution cannot even be amended in obedience to the desires of the vast majority of its people, it is no longer the embodiment of their highest ideals of government. It is an impediment to them. It is less a basic law than a straitjacket.

The problem isn’t so much the level of consent that is required, but whose. The Constitution is supposed to belong to the people. In fact it belongs to the premiers — a legacy of the patriation round. Before then it was unclear just whose consent was required. The British North America Act was silent on the matter: As an act of the British Parliament, it was assumed that any amendments to it would be enacted by the same means.

At one point in the patriation battle, the Trudeau government threatened to “go to Westminster” on its own, and might well have done so had the Supreme Court not invented a convention requiring a “substantial consensus” of the provinces.

This gave the premiers a strong bargaining hand in the talks that followed. The final document was a victory for provincial rights in many respects, and nowhere more so than in the amending process.

The premiers were given a hammerlock on the constitutional future of the country, with the consequences we are now seeing.

So rather than tinker about with the Senate, maybe it’s time we got at the root of the problem: to take back control of the Constitution from the premiers, as earlier we took it back from Britain. Needless to say, this would be difficult: to amend the amending formula requires unanimity. But that’s no more, at least according to the consensus view, than what is required to abolish the Senate. In for a penny, in for a pound.

If indeed the Constitution belongs to the people, it follows that the people should have the power to approve or reject amendments to it, by referendum — as is the case, for example, in Australia.

Whether you required, in addition to a majority of the population as a whole, a majority in a majority of the provinces, or in all four regions, or some other formula, is secondary: The principle that ought to apply is that it is the people, not the premiers, who are sovereign.

Pipe dream? Suppose, instead of a referendum on Senate abolition, one were held on the principle of popular control of the amending process. Still doubtful? Here’s the kicker: In another of its flights of constitutional fancy, the Supreme Court held in the secession reference that a referendum on constitutional change in any one part of the country would oblige the rest to enter negotiations.

What is true of the part must be true of the whole. A referendum of the whole country would surely oblige the premiers as a group to negotiate the final transfer of sovereignty, concluding the unfinished business begun in 1982.