Fed up with the shenanigans of certain senators? Want to abolish the Senate? Sorry, fat chance.
Think senators should be appointed for fixed terms or by the prime minister after a provincial vote? Maybe, but very unlikely.
Canadians have intermittently debated how to change the Senate for decades, with very little to show for all the reports, seminars, proposals, debates and frustrations. The debates return in a hearing next week, Tuesday through Thursday at the Supreme Court, about certain ideas around how the federal government can change or abolish the Red Chamber.
In a reference case to the court, Stephen Harper’s government wants wide latitude to act either on its own, or with the fewest possible number of provinces (seven of them representing half of the country’s population), depending on the change. Most intervenors – provincial governments and two lawyers hired to advise the court – think changing or abolishing the Senate should be subjected to tougher tests.
No one knows how the court will rule. A betting person, however, would wager that the court will say, as do their two counsel, that abolition can happen only with the consent of the Commons, the Senate itself and all of the provinces. In which case, it just isn’t going to happen. Unanimous consent in a federation will always be elusive to impossible.
The Conservative Premier of Saskatchewan and the federal New Democrats have urged abolition, which may be good politics, but it’s bad law.
The Harper government wants to reform the Senate by limiting senators’ terms and enabling provinces to organize elections, the winners of which would be suggested to the prime minister for appointment. Ottawa’s lawyers argue that the federal government should be able to make these changes without provincial consent. Needless to say, the provinces disagree.
None of these Harper government ideas has anything to do with the Triple-E cry of the old Reform Party. Reformers, of which Mr. Harper was once one, wanted a Senate with directly elected members, an equal number of senators from each province and a body possessed of effective powers it could use.
Triple-E is dead politically. Almost nobody espouses the idea any more. It was never going to fly constitutionally. Electing senators and giving each province the same number of senators required a high degree of provincial consent, and that wasn’t going to happen.
Big provinces weren’t going to accept the same number of Senate seats as small ones. Provincial premiers weren’t going to like elected senators speaking for provinces. Lots of politicians and scholars worried about two elected bodies – Commons and Senate – clashing, fighting and deadlocking.
Triple-E died, but the old Reform itch about the Senate remained within Mr. Harper’s Conservative Party, which is an updated iteration of Reform. The government has sent various bills to change parts of the Senate to Parliament, where they died because debate delayed a vote or elections wiped the order paper clean.
Frustrated by legislative inaction, the government sent its reference to the Supreme Court, where, predictably, clashing ideas about the nature of the federation have arisen. On abolition, which Conservative circles see as a possible electoral rallying cry, it’s obvious from reading the various factums that eliminating the Senate would be constitutionally difficult and nearly impossible.
A seven-province, 50-per-cent test would be difficult to achieve on its own, because all four Atlantic provinces and Quebec would almost certainly oppose abolition. (Quebec would demand various other constitutional changes as a price for even talking about the Senate.) Seeking unanimous consent would be a waste of time.
Could Mr. Harper do a Pierre Trudeau, hard as that is to imagine? Mr. Trudeau, confronted with constitutional obstacles in the form of reluctant premiers, always said he could appeal “over their heads” to a wider national interest.
Mr. Harper isn’t given to those sorts of appeals on any issue. Ignoring premiers rather than beating up on them is more his style. If he thought some kind of national plebiscite on Senate abolition might further his party’s cause, however, no one should doubt that he would consider the option.