Changes to the Senate requires Broad Consultation

“At present, a senator, when appointed, has tenure until he attains the age of seventy-five. At some point reduction of the term of office might impair the functioning of the Senate in providing what Sir John Macdonald described as “the sober second thought in legislation”. The Act contemplated a constitution similar in principle to that of the United Kingdom, where members of the House of Lords hold office for life. The imposition of compulsory retirement at age seventy-five did not change the essential character of the Senate.”

–         Reference Re: Authority of Parliament in Relation to the Upper House, 1980

I am very curious about one of the policy goals of our new Conservative Majority Government. For six years now, the Rt. Hon. Stephen Harper has argued that the Federal Parliament alone can move on the issue of term limits and “consultative senatorial elections”. Or put differently, instead of working with seven provinces, who maintain fifty per cent of the population, Mr. Harper has argued that the Federal Parliament alone can use section 38 of Constitution Act of 1982 to change the Senate.

My curiosity stems from the number of politicians, academics and interested persons who have indicated that this is a questionable act.  John D. Whyte at the Saskatchewan Institute of Public Policy in Regina has questions. Professor Andrew Heard of Simon Fraser University has questions. While, Warren Newman concluded his essay with the notation that the Senate itself in 2007, when considering these same questions recommended that the Conservative Government should refer the act to the Supreme Court to access the constitutionality of the changes being recommended.

Accordingly, I had to look into the question myself. The problem is where do we start? Well, let us look at the power that Prime Minister Harper claims that the Federal Parliament has. Section 44 indicates that:

“44. Subject to section 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.”

There are a lot of words in that phrase, some of which are actually very important. For example, there is something called the Constitution of Canada. What is that? The Supreme Court of Canada noted, in 1980, in reference to section 91 (1) of the British North America Act, that the Constitution of Canada is a phrase that applies to parts of the constitution which relate to the federal Parliament alone. This might include the number of seats held by a province in the federal Parliament as well as the names of the seats and the ridings they represent. Or put in another way, section 44 of the Constitution Act, 1982, allows the federal Parliament to manage itself.

The question is how much power does section 44 have. Does it, for example, allow the Parliament of Canada to change fundamental parts of itself.For example, the General Amendment Procedure (section 38 of the Constitution Act, 1982) indicates that amendments to “the powers of the Senate and the method of selecting Senators” need to have the consent of at least seven provinces with fifty per cent of the population.  This is especially true when “the powers of the Senate and the method of selecting Senators” are being affected.

So this begs the question: Do adding term limits and/or demanding consultative senatorial elections uphold section 38, while utilizing the power in section 44?In my opinion, the proposed changes do break section 38 and over the next few pages, I will explain why.

So how does one start to prove that the creation of term limits or the addition of consultative elections will weaken the Senate? I think we can look toward the newspapers. According to Postmedia, “Harper has appointed more than 30 Conservative senators to the upper house in the last 2 1/2 years — precisely, he said, so he could pass his Senate reform agenda (1)”. However, it turns out that many of those same Senators are starting to balk about Mr. Harpers’ attempt to make changes without broader consent. Many senators have noted this trend including Conservative Senator Linda Frum, Senator Michael MacDonald, Senator Richard Neufeld and Senator Pierre-HuguesBoisvenu.

What really becomes interesting is that Postmedia also reported that Senators Neufeld and Boisvenuwere quickly reprimanded by the party’s leadership for their views. Reprimands that have clearly had an effect as very few Senators have made their views public. Or put differently, it is odd to see a situation where Senators who maintain appointments to age 75 can actually be pressured by their political party. However, this is clearly the case. Consequently, it is easy to say that the proposed term limits will have a large effect on the way the Senate works. Therefore, one might believe that the Courts might rule that the general amending formula is required.

Furthermore, the Postmedia reports are not isolated in nature. Reports from other media sources show that Senators are quite susceptible to be influenced by a number of political factors or trends. In an article in the Hill Times, called “Senators under gun to be more partisan, says Senator” (Published Jul 27, 2009), Manitoba Progressive Conservative Senator Elaine McCoy indicated that since the minority Conservative government came to power in 2006 the pressure is on Senators to act in a more partisan way, and to tow their party lines, fuelling discussion about whether the Senate should do away with party affiliations.” That quote says a lot. For Senator McCoy does not owe anything to anyone. In 2005, this Progressive Conservative was appointed to the Senate of Canada by a Liberal Prime Minister – the Right Hon. Paul Martin. Additionally, Senator McCoy “is a lawyer and former Alberta cabinet minister with thirty years professional experience in regulation and policy development in both the private and public sectors.” If she feels pressured, how can other, less experienced Senators function in an independent manner in the federal Parliament? Accordingly we can note that there is some evidence to indicate that existing, lifetimeSenators can be influenced. So wouldn’t a term Senator be more likely to be pushed around by an elected House of Commons?

This is the question that needs to be answered. As previously noted, the Federal Parliament cannot make a change if it affects the Powers of the Senate. This raises the question: is there a test in Canadian Law for such a question. I would argue that there is. The 1980 Reference case on Senate Reform gives us such a standard. In trying to amend the constitution unilaterally, the Trudeau government asked the Court if the federal Parliament had the power to work alone.

The outcome is a test. Or put differently a principle which judges can use in the future to “test” the truth of a previous amendment. While this test is vague, the Supreme Court indicated that changes could be made as long as it did not change “the essential character of the Senate.”

So let us try to figure out what “the essential character of the Senate” is. For if we can find that out, we can determine the constitutionality of the Conservative Government’s position. In my opinion, “the essential character of the Senate” can be described in its ability to oppose the government, the Crown and the House of Commons. Senate Bill S-1 is the only proof one needs to show this. Since 1867, a Senator has introduced a bill into the Senate known as “An Act relating to railways”. That bill notes the Senates constitutional relationship to the Crown and House of Commons. Simply put, “the bill asserts the right of the Senate to give precedence to matters not addressed in the Speech from the Throne.” The Bill also notes the Crown cannot act without leave of the Senate. These notions are simple but very powerful. Prime Minister Mulroney for example had to live with a Liberal dominated Senator for 6 years. From 1984 to 1990, all of his pieces of legislation were heavily scrutinized and some were stopped. For example, Mr. Mulroney had problems getting the GST passed. To solve that problem, eight new Senators were appointed. Otherwise, the Senate would have blocked it, just as the Senate recently blocked climate change legislation which was passed by an elected House of Commons.

So, if “the essential character of the Senate” is to oppose as was the case with the GST and climate change legislation reducing a Senators’ duration in the Senate must – by its very nature – reduce its power.

However, one should also look at the Senate’s ability to represent those without a voice. Recent, Nortel Pensioners were ignored by the House of Commons. When Nortel’s Pension was declared insolvent, its Pensioners quickly realized that the House of Commons did not serve their interests. The Rt. Hon. Stephen Harper declared the issue to be one of provincial responsibility. While, Prime Minister Harper could have acted under section 91 of the Constitution Act (i.e. using the Federal Spending power), he decided that he wanted to side step the issue all together.

The Liberals, Bloc Quebecois and the NDP said all the usual things. It was a travesty, a sham and a farce that these people were no be assisted. They blamed Mr. Harpers’ Government for blocking their efforts, as represented by an NDP private member’s bill seeking to assist their plight. However, truth be known, the House as a whole was unwilling to act. It became more of a political football, then a problem to be solved. Yet, the Senate was more than willing to sit down with these people to hear their issues. Given that Senators, at this point, have a lifetime appointment, they were – in this case – willing to rise above partisan rhetoric. Senators gave voice to the serious concerns of pensioners just as they do for many other groups and persons on a regular basis.  We know this would not be the case with an eight or nine year appointment. For, many Canadian Prime Ministers have sat in the office for at least eight years. Jean Chretien held the chair for 10 years. Mulorney had about nine years. Pierre Trudeau was Prime Minister from 1968 to 1984,with a six-month interruption when Joe Clark held power.  Stephen Harper is on track to have eleven years under his belt. Consequently, under this new term system, Prime Ministers could easily outlast the Senate. If this was the case would you oppose the Prime Minister that appointed you? Or put differently, would you bite the hand that fed you? Most people, I know, would not.

The essential character of the Senate can be summed up by its ability to oppose and advise the legislative, executive and judicial branches for a generation. We can see this in the make-up of the existing Senate. In the Chamber today are Senators who were appointed by Pierre Trudeau, Joe Clark, Jean Chrétien, Paul Martin and Stephen Harper. They represent this generation. The last Senator is now destined to retire in 2049.  How can the Government say that a new nine year term will allow for the same amount of independence in the Red Chamber.

It is no wonder that in 2007, Premier Shawn Graham of New Brunswick noted in a position paper submitted to the Senate’s Legal and Constitutional Affairs Committee that he felt that Bill S-4, which aimed to reduce the tenure of Senators to eight years, would negatively impact the functioning of the Upper House.

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