We've long known that the Senate has major issues, though, and the scandals have just made that more obvious than ever.
There are basically three major camps among Canadians: (1) We should abolish the Senate. (2) We should reform the Senate to make it effective. And (3) who cares about the Senate? In light of recent scandals, #3 is getting much smaller.
Nonetheless, in reality the Senate does play a role - and sometimes an important role - in the legislative process.
There are certain changes that the Federal government can make unilaterally, but for changes that affect the fundamental character of the Senate, there has to be consultation with the Provinces. Which the Federal government wants to avoid. (Remember the Meech Lake and Charlottetown Accords?) The Federal government will make no changes that require consultation with the Provinces. And so the core of this reference is: What can the Federal government do unilaterally?
There are a lot of issues in play, and early reports suggest that the Court is expressing some scepticism with the arguments posed by the Federal government's lawyers. I want to start by focusing on Term Limits.
The question, at it's core, is whether or not imposing term limits would 'change the essential character' of the Senate. You may recall that I suggested that the answer to that question is a firm 'maybe':
There is a cogent argument to be made that term limits may change the fundamental features of the Senate: The House of Lords follows something of an 'independence model' like the judiciary itself - not elected, not subject to any external authority. A Senator can vote his conscience, because he can't be removed, and this renders him immune to external political pressures. Under the 1979 interpretation, I'd probably be inclined to bet on that argument. Term limits - with or without elections - subject Senators to influence by the popular ideas of the moment, fundamentally shifting it away from the House of Lords model. However, in 2012, I'm not so confident that the 'unaccountable' nature of the House of Lords will be a very persuasive model to the Supreme Court.Justice Abella has already expressed concerns about the impact of term limits on the independence of Senators, suggesting that it would change the fundamental character of the Senate. The Federal Government's lawyer, Mr. Frater, argued that it really didn't change much.
Frater maintained a term limit of at least eight years wouldn't appreciably shorten the amount of time senators currently serve before reaching the mandatory retirement age of 75.I might (or might not) have been persuaded that the 'independence model' of the Senate is not an essential part of its fundamental character in 21st-century Canada. How important is the 'unaccountable' nature of a legislative body? In the 19th century, yes, it was seen as important. But our constitution is a living tree; it evolves and grows. And so do our legislative bodies, and the character of them.
But this argument? It amounts to, "We're not really changing anything, so what does it matter?" Which not only undermines the supposed importance of the reforms sought, but is also plainly untrue.
On the current crop of Senators, the average appointment age was under 58, leaving over 17 years before mandatory retirement. More than double the proposed term limit. There are only a handful who are not eligible to serve over 8 years, whose length of service would not be ostensibly shortened by such term limits. And there are several whose mandatory retirement will not occur until the 2040s. (Consider Senator Batters, appointed this year, whose mandatory retirement age will be reached in 2045, after over 32 years in the Senate. If her term were only 8 years, then she would be required to seek reappointment or re-election four times in order to serve until the current mandatory retirement date. How could this not affect her independence?)
The 'method of selecting' Senators is firmly entrenched in the constitution; it can't be changed without using the general amendment formula, requiring consultation with the Provinces.
However, the current method of selection is pretty much a unilateral appointment by the Prime Minister. (Strictly, it's by the Governor-General, at the Prime Minister's advice. The convention is well established.) And there are no real criteria for these appointments. The PM can appoint whomever he or she wants, on whatever basis he or she wants. It strikes me as being within the PM's executive power to say "I will appoint to the Senate whomever lands the biggest trout in this fishing contest." And likewise for elections - indeed, it's already done in some cases.
So I'm a little surprised that several members of the Supreme Court appear to have serious doubts about the ability of the Federal government to legislate consultative elections.
I understand their concerns - the constitution specifically speaks to the process for changing the method of selecting Senators, and this is clearly, to use Justice Cromwell's language, a "constitutional workaround". But how do you tell the Federal government that they can't change how their unilateral discretion is exercised? It's hard to rationalize.
I suspect the core is here, and if the Supreme Court rejects consultative elections, it will be on this basis: Allowing the PM to willy-nilly appoint whomever he wants is one thing, but creating and formalizing a new system of appointments as a large-scale Senate reform scheme...is something else entirely.
And in fact, I'm starting to think that the SCC is right to be sceptical: What we're talking about is a piece of Federal legislation which would ostensibly bind the Prime Minister in how he appoints Senators. Despite the distinction often being blurred, there is a very important difference between the legislative branch and the Prime Minister. At present, the constitution essentially entrenches Prime Ministerial discretion in Senate appointments, and the Legislature is trying to co-opt that and tell the Prime Minister how to exercise his constitutionally-designated powers.
This appears to be the position taken by Ontario: Consultative elections like those held by Alberta before are fine, because the Prime Minister is not bound by their results. The Prime Minister is entitled to take advice at "an informal level, a non-statutory level, something that does not create public law." But federally-run consultative elections would change the fundamental character of the Senate.
At the end of the day, if you look at this case from a 10,000 foot perspective, it's hard not to see the Federal government as trying to 'change the fundamental character of the Senate'. Their whole position on the Senate is that the Senate is broken, the status quo is unacceptable, and major changes are needed.
I should highlight that, to my knowledge, there is still no plan to fix the geographical distribution. As I noted before, the east is drastically overrepresented in the Senate by any estimation.
I take an 'all-or-nothing' approach to Senate reform. Fixing the regional representation is necessary for comprehensive and complete reform. Reforming without doing so is irresponsible and dangerous, because it creates an effective legislative body that seriously disenfranchises the west.
We need to fix the Senate entirely, or to abolish it entirely, or to leave it be and just try to appoint better Senators. But half-measures, in my mind, are not an option.
What about Abolition?
The government has made it clear that, if the Senate can't be reformed, it will be abolished. Yet it's not so clear that this is necessarily an option, either. Saskatchewan, which categorically supports abolition of the Senate, argues that the "7/50" formula is enough - which is difficult enough to achieve. Other Provinces, and the territories, argue that all ten Provinces have to consent to the Senate being abolished. It's hard to imagine that happening, honestly. Even 7/50 would be a stretch. I'm pretty sure the west would be on board, and probably Ontario, too, but east of Ontario it's less clear. Quebec has always taken a bit of a confrontational approach to constitutional reform, because they feel slighted with how the patriation originally happened. (Not without reason, either.) As noted earlier, the east is hugely overrepresented in the Senate. To the extent the Senate actually does anything, that's to the east's advantage. And if reform is wanted, that overrepresentation is a valuable constitutional bargaining chip. They would rather re-open the constitution and sell their bargaining chip, rather than unilaterally agree to a narrow constitutional amendment that gives away the bargaining chip.
A decision by the SCC is still likely several months away, but this could be interesting.
The political dimensions are also compelling. To be honest, I'm not entirely sure that the government cares if it can't make the necessary reforms, so long as it can wash its hands of the whole ordeal and say, "See? We tried!" Harper has made a lot of use of his appointment power to the Senate; his principled objections to patronage appointments from his opposition days seem to have dissipated, but it's always nice to have somebody else to blame for failing to keep your election promises. (Of course, if it were really that important, we could re-open the constitution. But that's not going to happen.)