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A maintenance worker cleans the Speaker's chair in the Senate chamber in preparation for the return of Parliament on Nov. 17, 2008. (CHRIS WATTIE/REUTERS)
A maintenance worker cleans the Speaker's chair in the Senate chamber in preparation for the return of Parliament on Nov. 17, 2008. (CHRIS WATTIE/REUTERS)

Senate veto is here to stay Add to ...

Perusing Friday's papers, I see that Conservative senators who killed a climate change bill are not winning any popularity contests. Nor is the Harper government's asking the opposition parties to fast-track senate reform legislation seen as anything other than what it was - a diversionary tactic that would hardly make things better and would likely make the existing situation worse.

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That said, the Senate's veto over House of Commons legislation is part of the Canadian Constitution. Has been since the beginning. And is likely to remain so for quite some time.

Contrary to the editorial in The Globe, it would not be possible to do away with that veto without re-opening the Constitution. The precedents for quick amendments cited in the editorial - the Newfoundland and Québec education amendments - were accomplished under section 43 of the Constitution. That section allowed Ottawa and these two provinces to amend provisions of the constitution that apply to them alone.

However, this "bilateral" amendment process is not available in the case of the powers of the senate, which apply uniformly across the country. Moreover, under sections 41 and 38 of the Constitution, removing the Senate veto would explicitly require the approval of Parliament and two-thirds of the provincial legislatures representing 50 per cent of the population.

The good news is that the Senate veto over such an amendment would be merely suspensive, not absolute - as it is over ordinary legislation. The bad news for those dissatisfied with the status quo is that the veto will remain in place until comprehensive constitutional reform is back on the agenda. And even then there would be no guarantee of success, as past attempts at Meech and Charlottetown so starkly demonstrated.

However unsatisfactory, that's the reality of our constitutional predicament and of our system of government. And it's no use fooling ourselves that there's a quick and easy way to change either.

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