Here, reproduced under the Fair Dealing provisions (§29) of the Copyright Act from today’s
Globe and Mail is a useful reminder from Jeffrey Simpson that Prime Minister Harper’s options are limited on the Senate reform front:
http://www.theglobeandmail.com/news/opinions/senate-reform-an-altered-state-of-affairs/article1422994/
my emphasis added
Senate reform: an altered state of affairs?
The Supreme Court has already said Ottawa is in no position to try anything unilaterally
Jeffrey Simpson
Published on Friday, Jan. 08, 2010
So here we go again, apparently: another round of pondering Senate reform, a subject that animates a few Canadians and bores the rest.
Prime Minister Stephen Harper, harkening back to his former Reform Party days, wants to alter the Senate. The precise details of his true intentions aren't known, but there is talk of an elected Senate, or a limitation of the terms of senatorial appointments.
If he can't get reform, the Prime Minister has warned, he might seek abolition of the Senate, an outcome already supported by the federal NDP and premiers of a handful of provinces.
Go right ahead, gentlemen. Climb into the sandbox of Senate reform and start playing. But before doing so, pause and read at least a summary of a Supreme Court of Canada ruling of 1979 that will complicate every game you might wish to play.
In that ruling, on a reference from Pierre Trudeau's government, the court said 9-0 that Ottawa could unilaterally do almost nothing to the Senate. In particular, Ottawa could not unilaterally abolish the Senate, change the powers of the Senate, alter the number of senators from each province or fiddle with the method of senators.
The Trudeau government had proposed in 1978 a massive change to the Senate, including the selection of members by Ottawa, provincial legislatures and “some other body or bodies.” The change envisaged the possibility of electing senators. Elections, ruled the court, would “involve a radical change in the nature of one of the component parts of Parliament.” Such a change could not be implemented unilaterally by Ottawa, since it would “affect a fundamental feature of that body.”
So all those thinking of entering the Senate reform sandbox should therefore be aware that Ottawa can do very little unilaterally with the Senate, at least not the way the Supreme Court has interpreted the Constitution.
The Court essentially saw the Senate as an integral part of the federal system, because senators reflect regional interests in the Parliament of Canada. As such, the federal system cannot be changed by one level of government alone, even if the Senate is part of what is known as the “federal” government that resides largely in Ottawa.
So forget unilateral federal action. If tried, the action would be taken to court. Unless today's Supreme Court overturned a previous unanimous judgment, the action would be unconstitutional.
What about some federal-provincial agreement? In theory, maybe, but just try to secure such an outcome. There's a reason, after all, why every federation or confederation in the world has an upper house of some kind: to offer a regional offset against the representation-by-population of the lower house.
Provinces that want abolition are in a minority and will remain there, since why would the smaller provinces want to yield up an institution in which they are overrepresented? The same goes for Quebec – it won't give up anything in which its interests are potentially defended. The same also goes for diehard defenders of a Triple-E Senate – elected, equal and effective. They won't give up their dream and settle for abolition.
What about electing senators? Ottawa cannot implement this alone, the court said in 1979, but maybe provinces could hold elections and Ottawa could appoint the winners. That might be a possible innovation, since the federal government would not be unilaterally changing the rules of the game. But unless every province agreed to such a change, the Senate would have various tiers of members, some elected, some appointed. (On the other hand, this is how the United States got an elected Senate. Oregon first insisted on electing senators. Other states eventually followed suit.)
But do provincial governments really want elected senators? Some publicly do; others privately do not. The untidy fact is that many premiers want to be the ones to speak for their provinces on the national stage, instead of a bunch of provincially elected senators. Think of the United States. Which Canadian premier would want his role on the national stage to shrivel to that of a governor?
Put the idea of electing senators on the table. Then wait for a second or two before Quebec (and other provinces) comes along with a list of other constitutional demands. What would begin as a one-issue change would quickly become a multi-headed constitutional hydra.
And we all know where that has led, and would certainly lead in the future: constitutional agony, acrimony and deadlock. Beware, therefore, all ye who think about the temptations of the sandbox.
Essentially, as
I have said,
more than once, going back
a long time, there is a way to do most of what Harper wants to do,
within the constraints of the Supremes’ ’79 ruling:
1. The PM writes two letters:
a. The first to each provincial premier telling him/her than he intends, by
convention, to limit the way he appoints senators. He will, effective whenever, appoint to the Senate of Canada only those who –
(1) Are constitutionally qualified (§23 of the BNA Act),
(2) Are
elected by their province, usually in senatorial elections that are held in conjunction with a provincial general election and by a system that, broadly, reflects the outcome of that provincial general election, and
(3) Present him with a signed letter of resignation - effective the date of the next provincial general election, before being appointed, and
b. The second to each serving senator, asking for a signed letter of resignation, effective the date of the next provincial general election; and
2. The PM needs to explain – publicly - that he will not let provinces go unrepresented in the Senate but he will still demand, of those he appoints for his own, political, reasons, the same letter of resignation – thus,
[de facto ensuring that senators are not appointed for life.
It will take a long time to achieve a fully elected Senate – not all serving senators will want to resign, some will hang on, in their sinecures, for 20 years or so but, eventually, appointed senators will understand that they are second class citizens compared to their elected counterparts and those who don’t bump into the age limit will resign out of frustration. Not all provinces will, initially, go along – but the hold outs will, eventually, understand that despite having enough senators they have ‘second class’ (unelected) representation and they, too, will sign on.
Elected senators will, with public support, make themselves
effective because they will be willing to challenge the will of the elected HoC – putting provincial interests, including Quebec’s interests, into play and giving the overrepresented “Old Canada” (everything East of the Ottawa River) even more undue influence in the parliament of Canada.
An elected Senate will complicate life for the PM – even a majority government (in the HoC) may not be able to command the loyalty of the Senate. Even worse, who is to say that a BC Liberal senator will join the federal Liberal caucus – many BC Liberals are, in fact, Conservatives. The Saskatchewan Party Senators may, well, caucus with the federal Tories and so on.
But it – Senate reform –
can be done, within the limits imposed by the SCC, and Senate reform might, sooner rather than later, lead to
constitutional convention that will, finally, deal with several aspects of the old (1867 thru 1982), rickety Constitution of Canada.
