Why do we have a Senate?

Stephen Harper says the Senate is functioning well enough at 85 per cent capacity

Yesterday, Sen. Pierre-Claude Nolin, the newly appointed Speaker of the Senate, suggested that the upper chamber would be better off with a full contingent of senators, and that a province like New Brunswick could rightfully complain about being under-represented.

It has been a year and a half since Prime Minister Stephen Harper last appointed someone to the Senate and there are now 16 vacant spots (not counting the three suspended senators: Patrick Brazeau, Mike Duffy and Pamela Wallin). Another three senators will reach mandatory retirement (on their 75th birthdays) before the next election. The Senate is effectively operating with just 85 per cent of the representation it, and we, are due. And questions have been raised about the Senate’s ability to function with such absences.

But those questions are only worth asking if you believe that the Senate should exist to perform some specialized function, such as providing effective scrutiny of legislation passed by the House or ensuring proper regional representation. And Harper does not seem to believe that.

Asked by a reporter about Speaker Nolin’s comments, Harper responded as follows:

I don’t think I’m getting a lot of call from Canadians to name more senators right about now. I would just say that, from the government’s standpoint, we’re able to continue to pass our legislation through the Senate, so, from our standpoint, the Senate of Canada is continuing to fulfill its functions.

Harper was not always so limited in his ambitions for the upper chamber. Indeed, he was once so full of hope about the possibilities for it:

Honourable senators, I believe in Senate reform because I believe in the ideas behind an upper house. Canada needs an upper house that provides sober and effective second thought. Canada needs an upper house that gives voice to our diverse regions. Canada needs an upper house with democratic legitimacy, and I hope that we can work together to move toward that enhanced democratic legitimacy.

But then, after seven years of toying with the idea of democratic legitimacy, the Harper government asked the Supreme Court to explain how that legitimacy could rightly be bestowed on the chamber and, sometime after that, the Court said it would require the agreement of seven provinces and, with that, the Prime Minister lost interest.

Of course, the Senate won’t just abolish itself. But if it has to exist, and if it only exists to pass government legislation (would that rubber stamp apply to private members’ bills as well?), how many senators do we need to do that? Quorum for the Senate to sit and conduct business is 15 (including the Speaker), and simply passing a bill doesn’t require much effort. So, from that perspective, maybe it is not that the Senate has 16 vacancies, but that it actually currently has 74 more senators than required.

Fully 50 of the current 89 were appointed by Harper. So, if the Prime Minister does have a minimum number like 15 in mind, he might be expected to encourage his appointees to quit—the government has pledged, after all, to “minimize the costs associated with the Senate.” But then, if all 47 of his appointees who remain in his caucus—Brazeau, Duffy and Wallin having been ex-communicated—were to quit tomorrow, the Conservatives would lose their majority in the Senate and passing government legislation might become difficult. So perhaps Harper should commit to this: His appointees will retire on a schedule that ensures his party has only so many senators as it needs to win a vote in the chamber. By that score, the Conservatives currently have 18 or 19 extra senators. But let’s be generous and say only 10 should quit right away. Of course, if the Liberals form government next October, the rest of Harper’s appointees should probably excuse themselves.

Might someone step forward to challenge the constitutionality of a neglected Senate? Maybe. But then, surely, the courts would be persuaded by the Prime Minister’s understanding of functionality.

Otherwise, even if he never appoints another individual to the upper chamber, it could still be 2049 before the last of Harper’s appointees has retired.

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