THE ERA OF THE UNCONSTRAINED SENATOR: FREE OF THE CAUCUS WHIPS, SENATORS ARE NOW ACCOUNTABLE NEITHER TO THE PUBLIC NOR TO ANY ELECTED OFFICIALS, BUT ONLY TO THEMSELVES.

In 2014, the Supreme Court threw out the Harper government’s proposed reforms to the Senate, notably one that would have made appointments to the upper house subject to non-binding elections, on the grounds that they entailed fundamental changes to the Senate’s role.

The proposal would not have amended the written text of the Constitution: the governor general, acting by convention on the advice of the prime minister, would still be legally responsible for appointing senators. But the court wasn’t having any of that. To allow the prime minister to consult the people, it ruled, even if he were not similarly obliged to take their advice, would alter the Constitution’s “internal architecture,” in a way that required formal constitutional amendment.

The framers of the Constitution, the court ruled, intended that the Senate should be wholly appointed, without the suspicion of a democratic mandate, as a means of avoiding deadlock between the two houses of Parliament. Depriving senators of the legitimacy of popular election, it wrote, was designed to prevent them “from overstepping their role,” ensuring they would remain “a body mainly conducting legislative review,” rather than “a coequal of the House of Commons.”

And so while on paper the Senate may defeat any bill, in practise its appointed status was expected to ensure, in the words of Sir John A. Macdonald, that it would “never set itself in opposition against the deliberate and understood wishes of the people.”

Well, here it is 2016, and a very different set of reforms has been enacted, under which the prime minister is obliged to consult, not the people, but a particular group of people, an Independent Advisory Board, his appointees sitting not as members of any caucus, as before, but as independents. In- deed, there is no government caucus, as such, or a government leader to order them about. Yet even without the democratic mandate the court was so concerned to protect us from, the result is proving to be exactly the kind of deadlock it had feared.

Senators are vowing to rewrite Bill C-14, federal legislation legalizing assisted suicide and euthanasia, from top to bottom, and refusing to pass the bill until their amendments are accepted by the Commons. An excited Sen. George Baker predicts “this could go on forever.” The bill may have passed the House of Commons by a vote of 186 to 137, but what are the wishes of MPs or the public which elected them compared to those of people who once contributed to the Liberal party or kept quiet about a Conservative scandal?

Already there is talk the Senate might go on to amend or defeat legislation enacting electoral re- form, when it lands. And beyond that, who knows? Freed of the caucus whips, senators are now accountable neither to the public nor to any elected officials, but only to themselves.

In a sense there is nothing new here. Even in the bad old days before Justin Trudeau’s “non-partisan, merit-based” appointment process, senators have shown themselves increasingly unconstrained by their own illegitimacy. Bills have been defeated or obstructed in recent decades with growing frequency, on matters ranging from abortion to free trade to the GST to global warming. But clearly the Trudeau reforms have catapulted the Senate into a whole new era of activism. And why not?

Senators may not have a mandate from the people, but they have something they covet even more, the blessings of received opinion. The willingness of senators to defy the wishes of the people we elected has elicited less in the way of rebukes from the commentariat than the sort of swooning observed in one recent column, to the effect that this was “a shining moment” for the Senate, that it was emerging as a kind of “Council of Elders.” It’s amazing what sort of anti-democratic outrages people will countenance if they happen to agree with the outcome.

I hesitate to suggest that a system in which 86 appointees can overrule the elected representatives of millions of citizens is something less than a democracy. I can hear the objections already: what about the Supreme Court? But this is something quite different. Democracies the world over may make a special, limited exception for the judiciary — a group of trained specialists, that is, whose role is confined to comparing one law to another — but very few allow partisan appointees the kind of open-ended remit to rewrite legislation the Senate has claimed.

But then, in all the rationalizations offered for the Senate’s antics one has the sinking feeling the very principle of democracy is in need of some defence. So here it is. At heart, democracy is based on a belief in the equal worth and equal rights of every citizen. That is why everyone gets one vote; it is also the principle underpinning the doctrine of majority rule. It is why we talk of governments governing only with the consent of the governed, why Winston Churchill said that in a democracy, governments are our servants and not our masters.

For 86 individuals, however distinguished or high-minded, to substitute their own judgment for those the people elected to represent them is in gross violation of that principle. Those prepared to look the other way this time, because they agree with the result, must reckon with the likelihood that the next time it will be something with which they do not agree. And if, on sober second thought, we agree that democracy comes first — that it is the principle that must be upheld before all others — then it is time the Senate were told to mind its place.

THE TRUDEAU REFORMS HAVE CATAPULTED THE SENATE INTO A NEW ERA OF ACTIVISM.