In defence of a Senate that does not exist

On the court's Senate conclusions — and the Senate we really have

Pawel Dwulit/Toronto Star/Getty Images

Pawel Dwulit/Toronto Star/Getty Images

Read a certain way, today’s unanimous decision from the Supreme Court of Canada on what’s required to reform the Senate seems oddly detached from mundane political reality.

It’s not that there’s anything unconvincing, or even very surprising, about the judges’ reasoning or conclusions. In fact, many legal experts predicted something along the broad lines of their decision—a sweeping rebuke to Prime Minister Stephen Harper’s approach to Senate reform.

Harper had asked the court three key questions in this so-called “reference,” and he didn’t get the answer he wanted on any of them. His biggest ask was to be granted the court’s approval to move unilaterally to implement so-called “consultative” elections for senators.

The judges said, however, that he would need to first gain the consent of least seven provinces with 50 per cent or more of the population, under what’s often referred to as the “seven-and-50” formula for constitutional amendments. Of course, Harper has shown zero-and-zero interest in pursuing constitutional negotiations or engaging, for that matter, in any sort of formal talks with the premiers.

He also wanted to limit the terms of senators, who now enjoy their patronage appointments until they reach 75, to nine years. On this, some law professors thought the court just might rule his way. Instead, the judges concluded that imposing term limits would also trigger the seven-and-50 formula.

Harper asked about a dramatic fallback option, too. If he couldn’t move alone to bring in elections and term limits, he asked if the federal Parliament might be able to abolish the Senate with that seven-and-50 level of provincial support. No such luck. To scrap the upper chamber outright, the court said a more stringent,  unanimous constitutional amending formula—agreement among both the federal House and Senate, plus all 10 provinces—would be needed.

Much of this was predicted and the judges explain themselves plainly throughout. What makes their conclusions read in places as if the judges live in a different Ottawa than the one we know is how they describe the existing Senate, portraying the upper chamber as a valuable, constructive element in Canada’s governing architecture.

For instance, discussing term limits, they write about how imposing fixed terms for senators would eliminate the security of tenure that allows them to now engage—evidently free from crass political pressures—in their famous function of applying “sober second thought” regarding bills sent to them by the House. “This security of tenure is intended to allow senators to function with independence in conducting legislative review,” the judges write.

It sure sounds good. Senators should be independent and thoughtful. The way Parliament has actually run, sadly, is that senators are often the most rabid partisans on the Hill, explicitly beholden to their party leaders. Sure, some Senate committee every now and then has taken a close, critical look at a piece of proposed legislation. Far more often, they have done as they’re told. That’s the entrenched atmosphere of the place. Many of the top Liberal and Tory campaign strategists and fundraisers have, after all, plied their trades from the comfort of Senate seats.

So today’s court opinion lays down a difficult standard for Senate constitutional reform, set against the backdrop of, not the real Senate, but the idealized upper chamber imagined in the Constitution. Politicians must contemplate the former, though. And today’s ruling leaves Harper’s push for elections and term limits in the dust, and also renders NDP Leader Thomas Mulcair’s preference for abolition all but unattainable.

That leaves Liberal Leader Justin Trudeau, who surprised everybody by kicking his own senators out of caucus early this year, while proposing, in general terms, a new way of appointing senators that wouldn’t require constitutional change. With the judges effectively telling us that more ambitious reforms would require epic, Brian Mulroney-style constitutional bargaining, all parties might now have little choice but to find their own ways of tacking toward Trudeau’s pragmatic, non-constitutional approach.


For the record, today’s landmark conclusions runs to 55 carefully phrased pages in English, plus an appendix. Here are three three crucial parts that stand out: 

1. Avoiding deadlock between the House and Senate:

The federal government wanted to implement so-called consultative elections for senators. Its lawyers argued that since a prime minister would still be allowed, at least in theory, to reject the outcome of these elections and appoint somebody else, the mechanism didn’t really amount to a constitutional change.

The judges didn’t buy it. They noted that elected senators would inevitably behave differently from the old appointed kind, who by convention had to do what the elected MPs in the House wanted. “In summary, the consultative election proposals… would amend the Constitution of Canada by changing the Senate’s role within our constitutional structure from a complementary legislative body of sober second thought to a legislative body endowed with a popular mandate and democratic legitimacy.”

2. Limiting terms equals limiting Senate independence:

The federal government hoped to limit senators to nine-year terms, and argued it could make this change (senators now serve until they reach age 75) unilaterally. The government’s lawyers pointed out that nine years is about the average term historically served by senators anyway.

But the court decided the change could still alter the Senate fundamentally by making senators less independent, and thus requires consent of at least seven provinces representing at least half of the population. “The very process of subjectively identifying a term long enough to leave intact the Senate’s independence engages the interests of the provinces and requires their input,” the judges wrote in their unanimous conclusions.

3. Abolishing the Senate can’t be achieve by an imaginative trick:

One of the most inventive arguments made by the federal government’s lawyers had to do with the prospect of abolishing the Senate outright. Making fundamental changes to Canada’s constitutional architecture requires the unanimous consent of the federal Parliament and the provinces—an very high bar to clear.

But changing only the powers of the Senate and number of senators requires only the agreement of at least seven provinces representing 50 per cent or more of the population.So the federal lawyers argued that abolition would, in effect, just amount to taking away all the Senate’s powers and eliminating all its members, thus requiring only that more attainable seven-and-50 amending formula.

Not surprisingly, the judges found that argument lacking. “Abolition of the Senate,” they wrote, “is not merely a matter of ‘powers’ or ‘members’… The mention [in the Constitution] of amendments in relation to the powers of the Senate and the number of Senators for each province presupposes the continuing existence of a Senate and makes no room for an indirect abolition of the Senate.”

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