The Senate has a purpose….

“It was another poke in the eye to Stephen Harper from his appointees, it was a bump in the road for NDP Leader Tom Mulcair’s Senate abolition campaign but a boost for Liberal Leader Justin Trudeau’s oft-derided contention that the institution can function properly with quality appointments.

Some of these lines, but not all, have merit.

The man behind the amendments to Bill C-377, the Paul Martin-appointed former Progressive Conservative, Hugh Segal, has his own take on this twist.

‘Sometimes the ultimate position of partisan loyalty is to protect your prime minister from bad legislation that would have had terrible ramifications for him and his government,’ Segal says.

In Segal’s view, there was no overriding message behind this apparent act of defiance other than a bad piece of legislation being properly gutted because it was poorly drafted and poorly conceived.”

  • Senate defiance or an outbreak of Senate sobriety? Tim Harper, By: Tim Harper, National Affairs, Toronto Star, Published on Thu Jun 27 2013

So, if you are trying to keep track, in the last five years, the Senate has opposed a Private Members Bill sponsored by the NDP and one sponsored by a Conservative. The NDP bill tried to impose carbon limits, while the Conservative Bill tried to impose limits and new disclosure requirements on Unions.

In both cases Senators heard from various communities. In the case of Union disclosure act, “senators had heard concerns from privacy commissioners and constitutional experts and heard testimony indicating the bill’s wide application could violate the privacy of mutual fund holders and those who receive insurance or medical benefits.” In fact, Liberal Senator Pierrette Ringuette argued that the bill was not only unconstitutional, but it was “absolutely unworthy of legislation from the parliament of Canada”.

Consequently, in both cases, the unelected Senate made a judgment call that the House of Commons could not make. For the Senate’s calculus is different. The Senate chose to stop legislation which might have been politically popular but which may have been bad for the long term interests of the country. This is why the Broadbent Institute, a left wing thing tank created by New Democrats, did something that the Federal NDP leader could not: it thanked the Conservative dominated upper house. For in their statement, the Broadbent Institute, acknowledged and congratulated the Senate “for voting in favour of Senator Hugh Segal’s amendments to Bill C-377 and for standing up for the rights of millions of Canadian workers.” This acknowledgement is significant because it shows that the Senate is the only body that can stop the House – and by extension a majority government. Unlike the Courts who can only determine the legality or constitutionality of a law, the Senate can stop a Bill from becoming Law. If a law is wrongheaded, as Mulroney’s abortion Law was in the 1990’s, the Senate can do what it is meant to do: stop it.

This distinction of constitution or legal validity and political validity is important. Just look at Section One of the Canadian Charter of Rights and Freedoms. It states that the “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This section has come to be known as the reasonable limits clause because it is the clause that frames the actions of Canadian governments. For example, in a variety of cases, Governments might have been found in breach of various sections of the Charter but were saved because the courts felt that the laws were “reasonable limits”. This was true in the Keegstra and Butler cases and it will likely be true in other cases. Accordingly, the Courts can only do what the law says.

However, the Senate is in a leadership position for it can frame the law. It must assist in the creation of all legislative action and it can assist in the process of amending the Constitution. It does not have to use the “reasonable limits” test used by the Courts. It can set a higher test, a self-imposed test. It did so to the Chretien Government, when Jean Chretien’s government tried to limit the rights of terrorist suspects. While all experts said that the laws in question were likely constitutional, in the view of the Senate, the actions of the House of Commons were overly broad. Consequently, the Senate acted to limit the proposed legislation. After some debate, the Government and the House agreed to the limits. Therefore, it is easy to say that Senate is the only force that can pressure the legislative actions of majority governments.

Now, one will note that I used the word “pressure”. For the House of Commons does have an alternative: elections. As many have noted the Senate is unelected. This was a conscious decision by our forefathers. For George Brown, the Reformers, the Parti rouge and the Clear Grits had experienced the effect of an elected Senate. They understood its problems, its challenges and its advantages because they either saw or experienced the effects of an elected Upper House. From 1840 to 1867, the Province of Canada was ruled by a single legislature. Made up of Canada East (the precursor to Quebec) and Canada West (the forerunner of Ontario), the Province of Canada had a single bicameral colonial legislature. However, what was interesting was that from 1856 to 1867, the Upper House – known as the Legislative Council – was elected. This created a simple problem: the Legislative Council regularly overrode the Lower House (known as the Legislative Assembly). What made the situation maddening for Reformers and Liberal Conservatives, like John A. MacDonald, was that since both Houses were elected, both Houses claimed to be the authentic voice of the people.

In the negotiations to create the Canadian Confederation, all of the negotiators agreed that while provinces may not need a second body of sober thought, the Federal Government did require such a body. For only that body could protect the independence and liberty of individuals. However, members of our party, like George Brown, ensured that the Senate was not elected. The logic was simple: having an unelected Senate, for the most part, would subordinate its will to the House of Commons. That lack of legitimacy to the House ensured that the Senate would not abuse its co-equal power. For Senators would have to consult with Canadians to ensure that they would not lose their authority. If one questions my logic, just look at the loss of authority that the office of the Governor-General suffered in the King-Byng Affair. Senators have been smart in their actions since 1867 and, consequently, have been able to reject or amend legislation as a result.

In fact, the Senate’s recent actions have disabused the chief argument against it. Mr. Muclair said it was ineffectual. However, the Leader of the Opposition was not able to stop legislation that most people agreed was bad. Yet the Senators were. Instead of Mr. Mulcair’s description of the Senate – one where Senators were “a bunch of party hacks, bagmen, political operatives and defeated candidates” (NDP’s Mulcair takes aim at Senate abolition, by GLORIA GALLOWAY, The Globe and Mail, May. 22 2013) –
the Senate has shown itself to be a place where statesmen do the country’s business and bidding. The reason for this was simple: the “duly elected members of the House of Commons” did not act. A majority of the House sought to impose an obviously ideological position that was not in the best interests of this country; while the minority could not convince the majority that their actions were mistaken. Consequently, the Senate is no more a “vestigial organ” of Parliament than is the Leader of the Official Opposition.

Consequently, the removal of the Senate would leave no place of appeal for a minority in Parliament. John Stuart Mill, in arguing against Utilitarianism, called this action the “Tyranny of the Majority”. As a Black Man of Jamaican and Barbadian descent, I know the dangers of this type of Tyranny. However, so can Canadians of Japanese, German and Italian descent because they were interned during World War II. Jewish Canadians can remind us about the Holocaust, while Aboriginal Canadians are still dealing with the effects of European colonization. Without checks in the system, the minority will be overrun. The Senate recently has been the legislative voice of the “Minority”, given the polarization of the House of Commons. Accordingly, for the next couple of years, the Senate’s purpose will be clearly illustrated. It will be the voice of Sober Second Though, as imperfect as it is.

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