Current public debate over the future of the Canadian Senate is almost as distressing as the federal government’s approach to Senate reform. On the latter front, Prime Minister Stephen Harper has announced that he will make no more appointments to the Senate. The institution will wither on the vine, he says, unless the provinces get serious about reforming it. Let us recall that this is the man who tried and failed to transform the Senate from an appointed body to an elected one unilaterally: that is, by federal legislation alone. Eventually the Supreme Court of Canada put paid to that effort, citing the need for the agreement of the provinces to such a change. Having never formally consulted the provinces on Senate reform, Harper now wants them to clean up the mess in which he has left the institution. The cynicism and childishness of the action are unbearable to watch.
The public debate on the future of the Senate is hardly much better, understandably because of the Senate expenses scandal. The scandal has bewitched commentators, many of whom think it spells the end of the institution. They forget the obvious: if every political institution that faced a scandal were abolished, there would be none left.
Of course, some positions on the Senate long predate the expenses scandal, such as the NDP’s promotion of abolition. Let us consider them.
NDP leader Thomas Mulcair wants to work with the provinces to “roll up the red carpet,” his colour-coded euphemism for abolition. The reason for doing so that he stresses most is the antidemocratic system of appointment. The Senate is an appointed and therefore undemocratic body, he says, that is out of step with the times. But it could be elected and as a result be in step with the times. Mulcair’s response is that the House of Commons is enough: there is no need for two elected federal legislatures. This position ignores the fact that Canada is a federal country, not just a parliamentary democracy. Almost all the federal systems throughout the world have a Senate-type body in which the units of the federation are represented, although not strictly in accordance with their respective populations. The units with smaller populations tend to be overrepresented and the larger ones underrepresented. The particular formula of representation in the Canadian case is part of the price that was paid to establish the federation in the first place.
Before leaving the NDP, it is important to remind ourselves that its predecessor, the CCF, also promoted abolition. The CCF had a highly centralist view of the country and a large policy agenda that it wanted the federal government to pursue. As a result, it had little use for a body like the Senate, one purpose of which is to represent the interests of provinces that might be hostile to such centralist policies.
Enter Premier Brad Wall of Saskatchewan. An ardent abolitionist, Wall argues that the provinces already do the work of the Senate and are the key federal institutions. The problem with this argument is that it is absolutely wrong. The provincial governments have no authority whatsoever to represent their populations for federal purposes. They represent them for provincial purposes. Brad Wall has no constitutional mandate to speak for the people of Saskatchewan on a federal matter: say, foreign affairs. He can voice an opinion, of course, but it is of no more moment than that of any citizen. Senators are authorized to speak for provincial interests in relation to federal matters. That is their federal mandate.
The Senate is here to stay. It is a foundational institution with both a solid parliamentary purpose (much-needed sober second thought in response to wilful majority governments) and a solid federal purpose (representation of the provinces in federal matters). The main question is whether it ought to be elected or appointed. And if appointed — how?
Few like the current system under which the prime minister effectively appoints senators. Liberal Leader JustinTrudeau has put forward a proposal to amend the current system of appointment that would take it out of the hands of one person, the prime minister, and instead assign the task to a much larger body. The proposal is not without merit, especially since it could be devised and put into operation without engaging the Constitution. In other words, it is doable. Still, there are issues to finesse, the obvious one being that there is nothing to prevent a prime minister from ignoring the advice of an appointments committee except the political embarrassment triggered by the transparency of the advice.
There is one route out of the current impasse that has not been canvassed, and that is the Canadian version of the blue-ribbon committee: namely, the royal commission. There are many reasons why this is the route to take, beginning with the issue itself. The future of the Senate is exactly the type of mega-issue suited to the modus operandi of a royal commission. It is complex; it is important; and it needs to be taken out of the opportunistic hands of the politicians of the day.
Another reason is public education. Mesmerized and disgusted by the expenses scandal, Canadians can easily forget that the Senate is an integral part of the Canadian parliamentary system as well as the federal system. It is part of a whole, not a piece that can be excised without ramifications for the rest of the governmental apparatus, many of them potentially unwelcome. For example, there are only two federal counterweights with legal power to force majority governments to reconsider their views, the Supreme Court and the Senate. Excising the Senate would place an unfair burden on the Court.
A further reason is the need to generate public consensus for significant reform of the Senate. The Senate does not belong to the politicians. It belongs to the people of Canada. Canadians need to develop an informed, sophisticated view of how it might be changed for the better. Again, a royal commission is the vehicle for the purpose.
In the days of the Meech Lake and Charlottetown Accords, which pitched the country into the throes of intense debate about the Constitution, commentators used to inveigh against persons in suits doing deals in the backrooms of power. They should do it again in relation to the Senate. Canadians need to be engaged in any process that is designed to change their form of governance. The royal commission is the proper precursor to such engagement.