After the sorry spectacle offered on Parliament Hill recently, you would think that just about anyone would have had enough of the Senate altogether. And that would include most Quebeckers who, despite what their political leaders may have advocated in the past, have long considered the Senate a rather ludicrous appendage to the democratic process.
However, that does not mean that Quebeckers are ready to give Prime Minister Stephen Harper, or any Conservative, including Max Bernier as he touts a referendum on Senate abolition, the benefit of the doubt on this issue. The majority of Quebeckers have already shown – in the latest federal election results, in poll after poll since then – that they have little confidence left in the Conservative party, and absolutely no love lost with Mr. Harper.
And, despite the sharp partisan divisions in the National Assembly on a plethora of important issues – from the economy to the Charter of Values – there is also widespread partisan agreement that the federal government cannot make up its own rules on the reform of the Senate or any other institution without the consultation of the provinces and consent of Quebec. In fact, it was Jean Charest who first referred the Conservative government's Senate reform bill to the Quebec courts in 2012; it was then Pauline Marois who refused to suspend the reference when the Conservatives sent the bill to the Supreme Court of Canada.
So, Quebeckers have stood up to Mr. Harper, and so have Quebec governments. Late last month, Quebec courts did the same. The Quebec Court of Appeals presented a crystal clear legal opinion that shored up these claims, to the effect that the federal government cannot unilaterally impose changes on term limits and the selection of senators without the approval of the provinces. It was, in short, a scathing legal critique of Bill C-7 as an attempt to "circumvent" the procedures of constitutional amendment.
The ruling went on to describe how the Senate was part and parcel of the Confederation "compromise" and designed with several functions in mind beyond the spoils of patronage that seem to be its calling card today. These included the now questionable role of "sober second thought" and the even more regressive argument of giving oversight power to the "wealthy" (or propertied class). These are reasons enough for any 21st century democracy to change or even abolish such a retrograde institution. The Senate also had two other functions that still matter – regional representation and minority rights – but that have arguably fallen into ridicule.
The Quebec ruling on proposed Senate reform points to an even more far-reaching issue: that, despite what Ottawa may claim, constitutional amendment, and the ensuing necessity of consulting the provinces, is a necessary step in any significant change to political institutions in this country. It also raises the ghosts of constitutional reform and Meech Lake which, despite what their Quebec-bashing critics bang on about, are not illegitimate causes, even with the political difficulties they entail.
As the Supreme Court of Canada turns its attention to the case of C-7 this week, it will need to take into account what the finest legal minds in Quebec have laid bare about the historical facts and legal realities of the matter. We have all been demoralized by the recent Senate circus, which adds fuel to the fire of the need for urgent changes to an outdated institution. But as the Quebec courts reminded us, this cannot be done for partisan political reasons and without regard for the rule of law and the role of the provinces in any constitutional amendment.
Antonia Maioni is an associate professor at McGill University