Senate abolition wrought with constitutional pitfalls

Posted on April 29, 2014 by Sunny South News

Canada’s Senate hasn’t had legions of defenders of late. A seemingly constant sideshow of political scandal for at least the past 25 years, recent allegations have seen a series of porcine senators who haven’t missed an opportunity to fraudulently feed at the public trough — not to mention expensing out every buffet they come across between their semi-existent residences and Ottawa.

If that wasn’t bad enough, many citizens are having a tough time determining the ultimate purpose of Canada’s upper house and so-called sober second look at legislation.

From a purely constitutional perspective, the Senate is an integral part of the checks and balances that exist in all functioning democracies to ensure one wing of the government — be it legislative, executive, or judiciary —  does not gain supercedence over another.

In a sense — and certainly in the minds of the Fathers of Confederation — it exists to make sure the “mob,” represented by the elected members of the House of Commons, doesn’t get too out of hand with their churlish demands and revolutionary proclamations, and can be reigned in by a more sage and dignified body representing — for lack of a better description — the established order.

This idea might be reinforced by remembering the title of our Senate’s British counterpart, upon which our Westminster model of government is based: The House of Lords.

In practice, of course, the Canadian Senate is something else altogether. An appointed body, it can never hope to have the authority that is vested by election, unless it becomes an elected body itself.

Which would open all manner of constitutional questions, not the least of which would be in which house rests the real power, if both houses are now elected?

It is no secret the ruling Tories in Ottawa have had their non-registered rifle sights set squarely on the Senate, since the days of the old Reform Party. It had been largely an untouchable question until the Harper Conservatives achieved a majority. Now more a thorn-in-side to excise rather than a policy goal, reform of the Senate may soon reach the boiling point, when the Supreme Court of Canada is set to rule on what is sure to be a landmark decision with regard to the Tories’ plans for the upper house.

Reforming or abolishing the Senate isn’t as easy as simply passing a piece of legislation in the House of Commons. What the Supreme Court will be deciding is just how far the federal government can go without requiring an amendment to the Canadian Constitution, or even a referendum — the dreaded bane of all federal governments since our constitution was ratified in 1982.

Our ponderous amending formula — requiring the agreement of seven of 10 provinces and 50 per cent of the population — explains why we have never had a constitutional amendment, not to mention the failure of the Meech Lake and Charlottetown Accords. It might be easier for an elephant to cling to a cliffside with his trunk tied to a daffodil than to achieve the consensus needed to make an amendment to our constitution.

And that would only be the beginning. At least five provinces are still maintaining that to abolish the Senate outright, the unanimous consent of all provinces would be needed.

The Supreme Court will also be deciding whether the federal government can make reforms such as establishing nine-year term limits, removing the requirement for senators to own $4,000 worth of property, and establish elections to select nominees for Senate appointments.

Whatever the ruling of the Supreme Court on reforming the Senate, Prime Minister Stephen Harper has said in the past if it can’t be reformed, it should be eliminated from Canada’s political landscape altogether. In that sentiment, he’ll find ready allies amongst many Canadians recently disgusted by the antics of less than honourable senators.

That being said, there has been little mention of what might fill the legislative void that could exist if the Senate were permanently eradicated. Eliminating one of the checks to the power of the House of Commons without any thought to its potential constitutional implications could be a dangerous path to tread — especially if it meant vesting more powers in the office of the prime minister.