If you care about the future of Canadian democracy, pay attention to the frantic level of activity in Canada's non-democratic house – the Senate. Thanks to the Trudeau government's misguided reform of the place, the unelected chamber is suddenly more independent and a lot more powerful than ever.
Consider how the Senate may be about to hold up passage of a federal budget, an unprecedented step for the non-elected house and one that would turn Canadian democracy on its head.
What has some senators rightly bothered is the fact that the Liberal government buried legislation creating a national infrastructure bank deep inside an omnibus budget bill. The Liberals then sped the overstuffed budget through the Commons.
Omnibus budgets, containing all sorts of other items having nothing to do with the issue of government spending, are a long-standing abomination. And thanks to a motion by independent Senator André Pratte, the Senate could vote to take the infrastructure bank out of the budget bill – which, incidentally, would mean not passing the budget.
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On one level, Mr. Pratte is absolutely right: Of course the infrastructure bank should not be folded into a budget bill. But on the far larger issue of Canadian democracy, the Senate's growing activism, of which this is just one more example, is taking the country down a dangerous path. The Senate, no matter the quality of the people appointed to it, is not a democratic institution. Yet over the past year, the newly empowered Senate has repeatedly amended, rejected and sent back all sorts of government legislation.
Even when the Senate is right about what's wrong with a piece of legislation – and recently, it has often been right – it's creating a troubling situation. The will of the elected half of Parliament is becoming increasingly subject to the judgment of the unelected half. That threatens the system that Canada has long lived under, known as responsible government.
Responsible government – Canadian democracy since 1848 – made government responsible to the people by making the executive subservient to the people's democratically elected representatives. It means that popular elections are the way to get power and elected representatives are supreme, with the power to choose a government, to boot one that has lost their confidence and to pass or reject the laws proposed by that government.
The supremacy of the Commons, the body elected by people, and the Commons' control over the public purse is something hard won over centuries, in Britain and in Canada. It's why an unelected Senate has always sat uneasily in a country of representative, democratic, responsible government.
It's not as if the Senate never blocked the will of the Commons in the past. But until now, it mostly understood the diminished legitimacy that comes with its undemocratic nature. Perhaps more importantly, it was practically constrained to play second fiddle to the Commons through the appointment and organization of senators via party structures.
Thanks to Prime Minister Justin Trudeau's changes, there are no more Liberal senators – the party effectively disowned them – and all new senators are being appointed as independents. They sit for life, or at least until age 75, responsible to no one other than themselves, and accountable to nothing other than their own conscience.
This is a might be a good model for a Royal Commission or a government advisory board. It's a terrible model for a legislature in a democratic country. Why would Canadians want our most powerful politicians to be people we didn't vote in and can't ever vote out? Mr. Trudeau has given us FrankenSenate.
The irony is that the new senators are mostly intelligent, thoughtful and well-meaning. They accepted the job because they want to make Canada a better place and they have reason to believe they can. That is precisely why they are dangerous.
For the sake of democracy, their desire to take a greater share in the government of this country must be restrained. However, given the impossibility of amending the Constitution or reducing the Senate's powers, it appears that the only people with the power to restrain senators are … senators.
Before the genie gets too far out of the bottle, the Senate has to limit itself. It has to impose an inferior status on itself, in recognition of its lack of democratic legitimacy. It could, for example, write new standing orders, perhaps committing itself to amending and delaying legislation from the Commons, but not repeatedly blocking it.
The Senate must give itself limits and boundaries because it isn't a democratic chamber, and because governments are formed, live and die in the democratic Commons. A restrained Senate can be a needed chamber of sober second thought. But a Senate acting like an equal to the Commons is a mistake and a threat.
If they believe in democracy, our recently unchained senators are going to have to buy themselves straitjackets. Will they?