I am taking a Canadian Law and Constitution class, and in my midterm exam there was a question about the Senate. The question asked: “Should the Senate be abolished or reformed?” Now of course, as this was an academic class, I had to cite historical and legal precedent in my argument, but I found that while looking through all of that evidence, I was able to solidify my already-strong opinion that abolishing the Senate is impossible, and that Senate reform, while possible legally, won’t happen.
I’ve always been a fan of Senate reform rather than abolition. I think the idea of having a house of sober-second thought is a key component of our democratic system. And I know for a fact that the the Supreme Court of Canada (SCC) has always been of the same opinion. This is why the Senate will never change.
Now, a little history for you.
In 1978, Prime Minister Pierre Trudeau began a two-phase program of constitutional reform, forever known as the Senate Reference of 1980. I will spare you most of the boring details, but it is important to note that the SCC’s response to his proposals were all negative. Under section 91(1) of the constitution, it concluded that the federal government could not make any amendments that would change the essential character of the Senate. As long as the Senate maintained its capacity as a check for the House of Commons, and remained representative of the different regions within Canada, the government couldn’t touch it.
With the new constitution of 1982, sections were modified to allow the government to amend their own documents, including methods of selection and qualification for the Senate. However, under section 38, an amendment such as this would require the approval of both houses, as well as seven provinces representative of 50% of the population.
How can anything as controversial as Senate reform expect to pass under such circumstance?
That is exactly why nothing will ever happen with the Senate. To abolish the Senate would be next to impossible considering the SCC, when reviewing the concept of constitutional reform, will look at precedent and conclude that it is a democratic necessity. And even if the SCC rules that Senate reform is constitutional, it would have to pass through both Houses and 50% of the Canadian population.
I am in favour of Senate reform. Not that I think we should model much from the United States political system, but I feel like the accountability of an elected Senator would make the Canadian democratic system that much more legitimate. Right now, the government continues to fill the Senate with friends and supporters. What would happen if that stopped? Would we get our “sober-second thought” back? I know that I’m an optimist, and I am not ignoring the fact that an elected Senate may be a challenge and further contribute to the stagnation of passing policy, but it would be better than what we have now.
Alas, I know nothing will come of it. The only reason to bring up Senate reform now is for appearance’s sake. The government wants to look like it cares about democracy, and about the desires of the majority of people who are getting fed up with our appointed Senate. By fast-tracking the issue through the courts, the Harper government is putting the onus on them. Plausible deniability my friends. Harper can put the blame on the courts, and say he tried. Oh well. Not his fault they didn’t like the idea.
Welcome to Canadian politics, where we like to pretend we care about democracy while supporting our own personal agendas.
P.S. I shall forever deny that something I learned from school has actually been useful.