Saskatchewan Premier Brad Wall has now joined New Democratic Leader Tom Mulcair in calling for the abolition of the Senate, and it is rumoured that even Prime Minister Stephen Harper may flip from electing senators to abolishing the Senate. This sort of dramatic pirouette might appeal to him; allying with the NDP against the Liberals, who oppose abolition, would put Justin Trudeau in a minority position on what could become a defining election issue. Yet the constitutional and legislative difficulties facing abolition remain formidable.
The Supreme Court of Canada will tell us which amending formula applies to abolition of the Senate. My guess is that it will be the general procedure, requiring approval by Parliament as well as the legislatures of seven provinces containing 50 per cent of the population of the provinces. Superficially, that threshold seems possible to meet. No single province would have a veto, because no province has more than 50 per cent of the population.
But we also have to factor in the Act Respecting Constitutional Amendments, passed by Parliament in 1996 in response to the near-victory of the separatists in the 1995 Quebec referendum. The act created the so-called “regional veto,” which in context was really a veto for Quebec on future constitutional changes. Under the act, the federal cabinet cannot introduce a constitutional amendment into Parliament without getting the prior approval of Ontario, Quebec, British Columbia, at least two Atlantic provinces with 50 per cent of that region’s population, and at least two Prairie provinces with 50 per cent of that region’s population. In practice, Alberta has a veto because it has more than half the population of the Prairies.
The 1996 legislation requires prior approval from the provinces before the cabinet can bring the question of abolition to Parliament. If Quebec is onside, the process might work, but it seems more likely that Quebec would wield its regional veto, not because the Senate is so important in itself but because it was a crucial part of the compromise that created the Canadian Confederation. Quebeckers would reason (and I would be on their side) that if the Senate can be abolished, none of their constitutional privileges are safe from being taken away by a coalition of other provinces.
The federal government’s options for overriding Quebec’s exercise of its regional veto are not attractive. It could ask a backbencher, rather than a cabinet member, to introduce the constitutional resolution, but that would rightly be seen as an end run around the 1996 legislation and an unprecedented abrogation of cabinet responsibility. Or it could try to amend or repeal the regional veto. But that would require strong majorities in both the House of Commons and the Senate, for some Quebec members of Parliament might balk at reneging on the promise made to Quebec in 1996 that future constitutional amendments would not be made without its consent. And, of course, using a backbencher to circumvent the act, amending the act, or repealing it altogether would be a godsend to the separatist movement in Quebec, perhaps lending it the energy to stage another referendum on separation.
I can understand the desire for abolition. If we were designing a constitution from scratch, we might consider the unicameral model. Countries such as New Zealand, Denmark and Sweden, as well as all 10 Canadian provinces, function quite nicely without a second house in their legislatures. But we are not writing on a blank slate.
In view of the practical difficulties facing abolition, our political leaders would be better advised to focus on improving the process of selecting senators. Advisory elections might work for some provinces; others might prefer a committee mechanism. But let’s talk about realistic alternatives, not options that function chiefly as political theatre.
Tom Flanagan is a distinguished fellow in the School of Public Policy at the University of Calgary, and a former campaign manager for conservative parties.
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