Wednesday, 22 May 2013

Seeing Red: Sober Second Thought, Abolition & Constitutional Reality

No less an authority than R. MacGregor Dawson - writing in 1922 - labelled the Canadian Senate as "the one conspicuous failure of the Canadian Constitution"1. Certainly evidence enough for many in the present to, with nary a thought given, advocate for outright abolition of the upper chamber, that 'unelected and unaccountable' body, the 'vestigial tail' of Canada's parliamentary democracy. The denunciations are as base as they are common. They show little deference to constitutional reality nor an understanding to the historic basis of the Confederation bargain. There is no understanding of the role the upper chamber played in the negotiations of 1864. What is more, they reflect a denial of the reality of contemporary Canada: a diverse, linguistically divided and highly regionalized federal union. The motivations of Quebec and the Maritime provinces are no less valid and, indeed, no less alive in the present. They have simply been compounded and thrown into starker relief by the geographic expansion of the country westward and with it a change in demographic power.

The Senate is not simply a historic relic, a poor man's replica of the Westminster Parliament. Canada's upper chamber serves an entirely distinct function from its British cousin. It is a function of federalism and with it regional interests. Indeed, without the Senate the union of British North America, as George Brown put it "could not have advanced a step"2. The scheme allowed for a variation of 'rep by pop' (although, by no means uniform) in the lower house (the House of Commons) while protecting the sectional interests of the French (and Catholic) majority of Quebec and avoiding swamping the Maritime provinces in an arrangement with much larger partners. As David Smith writes: "the Senate was never intended to be a representative institution"3.

This is not to argue that deference to the founders' will is required above all else. Indeed, the judiciary has certainly put to bed MacDonald's idea of a strongly centralized federation and political practice and the formation of convention has had as much effect on the operation of Canadian politics as the written text itself.   That the British North America Act was never put to the people is well known. This was a product of its time and the place of Canada. The franchise was not widespread and Canada was a colony, part of an empire and subordinate to it. What is lost, however, is that document - renamed the Constitution Act with patriation in 1982 - was submitted to far greater democratic scrutiny, albeit in the guise of executive federalism. Nine provincial governments, all with democratic mandates - plus a federal government with all but a few of the federal seats in Quebec - adopted a constitutional package which kept the Senate in place. A decade later, Canadians accepted the constitutional status quo by rejecting Meech. As Peter Russell noted, the people of Canada exercised their sovereignty for the first time and said 'no'4.

Acknowledging this does not foreclose the possibility of future changes. It does, however, remind us that contrary to arguments made against the Senate, the chamber is not entirely without democratic legitimacy. It also reminds us that the Senate does serve a purpose, one that cuts to the core of Canadian federalism. To argue that it doesn't reflect the democratic will or demographic dispersion of the Canadian people misses the point entirely. It was meant to reflect Canada's federal nature, not its democratic side. A lack of democratic - or input legitimacy - does not, ipso facto, render an institution illegitimate. This is an argument that misses the argument, one that places the legitimacy of Canadian Idol above that of a third of parliament. Expand the argument against the Senate and we soon come to undermine the judiciary, the bureaucracy and any number of central, yet unelected and - the theory goes - unaccountable bodies (the Auditor General, comes to mind).  We need to think beyond simplistic arguments linking legitimacy solely to elected officials.

Perhaps one of the most troubling arguments made justifying the outright abolition of the Senate is its devaluing the constitution itself. Yes, constitutions change, but they change slowly and only as institutions become dated or fall into disuse - the power of reservation of the Imperial Parliament, for instance. To assume that constitutional convention can simply sweep away an entire organ of government is beyond the pale particularly as, as it should be clear, the Senate is still in use. Moreover, there is a very real provincial stake in the matter. From a practical perspective, achieving the minimal requirements for some reforms (7/50 rule) or abolition (likely unanimous consent) will be incredibly difficult. Quebec further complicates the picture as a 1996 Act of Parliament prohibits initiating an amendment federally without the prior consent of Quebec. While statutory, this would be a problematic bill to repeal.

Additionally, it is worth noting that the constitutional amending formula is itself silent on the issue of abolition for simple reason that abolition was never considered. Given the scope of such an amendment - remember that the powers of the Crown cannot be amended short of unanimous consent - such a change is practically impossible. More to the point, it is troubling to see some opponents of the Senate - particularly the NDP (so often constitutionally illiterate) - argue that a constitution can simply be cast aside if the will of the people dictates. This is troubling, particularly as the amending formulas to be ignore were entrenched along with the Charter. When we start to question the supremacy of the constitution, the entire package, not simply the targeted sections come into play.

The Senate is not some bauble to be cast aside. It is an integral part of the Canadian constitution and reflects the federal nature of representation. The impossibility of amendment - short, frankly, of revolution - and deference to the Confederation bargain should be enough to let the issue be. Additionally, there are a number of spurious arguments that need to be refuted. First, the cost of the Senate - and its apparent inefficiency -is often touted as reason enough. This is penny wise and pound foolish. The annual outlays for the Senate are roughly $90 million, less even than the Office of the Auditor General and small change set against the bulk of the federal budget. Moreover, Senators do important work, often work that would go undone otherwise. Suggestions that this work can be outsourced - to think tanks and civil society groups - ignores a few important details. The Senate, as a constituent component of Parliament, operates under the rules of parliamentary privilege. This means it has a far greater scope of compelling testimony and producing documents. It would be difficult for Democracy Watch or the Fraser Institute to compel the caliber of witnesses that appear before parliamentary committees. This is invaluable.

Second, demands for abolition take an extreme view without considering the middle ground. Much of the complaints leveled at the chamber can be remedied without resort to abolition or constitutional amendment. Indeed, in numerous other aspects of federal politics this has been accomplished. A public appointments secretariat sits unused. Sadly, the all or nothing approach taken by the official opposition will result in little change.

Finally, some commentators have pointed to the provinces as evidence for abolishing the federal Senate. They argue that no irreparable harm was done by converting the provincial bicameral legislatures into single-chamber bodies. Again, this ignores the reality that the federal parliament is similar yet distinct from its provincial counterparts in important ways. The federal parliament is, forgive the tautology, a federal body. Provinces are not. They need not balance regional differences on a scale comparable to the federal parliament. As such, the comparison is not a fair one.

At the outset I quoted Dawson to illustrate that these the ill-repute of the Senate has been a constant part of the Canadian political landscape.Yet Dawson's criticism was tempered by a critique which could equally be applied to the House of Commons today. For Dawson, the failure of the Senate was largely located in the lack of independence of its members. He noted:
In short, the Senator combines a political irresponsibility with a lack of incentive to independence; he is not accountable to anyone save his party leader for his actions, and he has not motive and no desire to exercise his independent judgement.5
Dawson's lament could be applied, almost without change, to Members of Parliament who, beholden to their party bosses - and the Prime Minister for advancement - no longer assert themselves as an independent force. The lower chamber has become as much of a rubber stamp as the upper. Backbenchers on the government side fail to understand their role as one of holding the government to account as much, if not more, as the opposition. Yet despite the overlap in criticism there is no suggestion of abolishing both chambers. The democratic legitimacy of the House cannot be reason enough. Many of the remedies that could be applied to the Senate could equally be applied in the House. The Senate plays a vital role. That so many fail to understand it does not lessen this reality.

The religious fervor and zealous nature with which the abolitionists take to the Senate is exacerbated because they fail to understand the very nature of what they oppose. All they see is a caricature of corruption and graft. The view is dangerously myopic. As Smith notes:
This is the reason why reform of the Senate has proven a conundrum: its structure is the consequence of a bargain, made by the Fathers of Confederation, the terms of which included both chambers of Parliament. Reforms that do not contemplate the same breadth of change will not succeed.6
Canadians are not beholden to their past nor to the bargain made between governments at Charlottetown and Quebec. The will of the Fathers can be overruled - it has been many times. While not beholden, Canadians should nevertheless endeavor to understand that compromise. Far from the useless vestigial artifact it is portrayed to be, the Senate remains an integral part of Canada's parliament. We fail to understand this at our peril.

Works Cited
1 R. MacGregor Dawson (1922) The Principle of Official Independence
2 George Brown (1963) Confederation Debates of in the Province of Canada (ed. P.B. Waite)
3 David E. Smith (2007) The People's House of Commons: Theories of Democracy in Contention
4 Peter H. Russell (1993) Constitutional Odyssey: Can Canadians Become a Sovereign People?
5 Dawson, Independence
6. David E. Smith (2010) Federalism and the Constitution of Canada

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