So the Stephen Harper government complains to the Supreme Court that the Senate is too partisan. This is the most outrageous legal argument since the fellow who killed both his parents asked for mercy on the grounds he was an orphan. Sound and fury, signifying nothing.
The bizarre Harper fixation on trying to reform the Senate through the blockbuster machinery of constitutional change is most peculiar, given that he has another route wholly within his own powers.
It is equally odd that the trivial expense account scams of three senators should lead to calls for the abolition of what has been, and could be again, a very useful part of our Parliament.
One should recall an essential link between each of the controversial trio. They were each and every one appointed by the Prime Minister. How is it that this is not sticking to the teflon man? The connection is so simple – if Mr. Harper had not appointed these folks there would be no scandal.
This leads to the central issue of the Senate, namely how the members are selected. Good appointments equal a good Senate. Bad appointments seem to equal a Harper Senate. You would think he would want to find a way to atone for that and make sure it doesn't happen again. Just a minimal bit of embarrassment leading to change would be nice to see. Alas, it seems he doesn't embarrass very easily, and maybe we will have to find another Prime Minister to do the right thing.
And what is the right thing? Just name good senators.
How to do that? Elections? No – reasons to follow. Severely guided Prime Ministerial discretion? Yes – details below.
So, elections, the current idea of the day? There is no more reason to elect senators than to elect judges. The purpose of the courts is to interpret the law. The purpose of the Senate as conceived by the framers is to act as a chamber of advice and consent. It is the House of Commons that has the unique task of representing the popular will, for which purpose that body does indeed need to be elected.
Sir John A. Macdonald and his colleagues considered an elected Upper House and firmly rejected the idea. They worried about deadlock if one elected chamber were to conflict with the other. The briefest look south of the border these days shows the wisdom of that analysis. Do we need the antics of Washington?
A more modern reason has arisen. Were the Senate to be a body with elected democratic legitimacy it would grossly upset the regional balance of power in this country. The Senate in numbers overwhelmingly reflects Old Canada. Quebec plus the Atlantic dominates the Senate with 54 of 104 seats, while that part of the country has but 30 per cent of the people. An eastern dominated Senate with real power would direct a disproportionate fraction of the country's wealth to the east of the Ottawa River. Again, see U.S. of A and the tyranny of the smaller states.
No indeed, we need a Senate with the original intent of sober advice and consent to the initiatives of the Commons and the government based in that chamber. The Prime Minister was given the power of selection and until this Prime Minister it worked not badly. The Senate often recommends legislative improvements and does studies (drug policy, health policy, defence issues, social security reforms, etc.) that the more partisan House would never touch for fear of electoral consequences.
The Senate has never abused the massive power that it has on paper, because it knows the people would never tolerate it. But they have done good work, and could do better.
The Senate should be the traditional place of sober second thought, plus potentially being a very well resourced and informed ongoing Citizens' Assembly, considering all sorts of controversial and novel issues, just as today – only better. To achieve that, one needs better and less-partisan Senators.
How to choose them? We can look at how we select Judges. These worthies are also appointed by the PM (in effect – the Prime Minister's Office passes on every name) but the problems are few because in almost every case the choice is made from lists drawn up by the legal communities in the various provinces – lists of people with a known and respected track record.
Let us choose senators in the same way. Let some great Prime Minister (will Mr. Harper step forward?) establish the precedent that with few exceptions, he/she will choose only from such lists. The provincial nominating bodies might be made up of members chosen by the governing and opposition parties in the local Legislature, by the municipalities, business and unions, the bar, universities and perhaps a few others. As with the court nominations, their work could be private and only for the eyes of the PM (which makes it easier for some to put forward their names), or it could be public.
This process would yield a truly respectable Senate. Yes, it would mark a diminution of the Prime Minister's patronage powers, but that would happen under the alternative of abolition in any case. We would be better to preserve and improve a truly useful advisory body.