Andrew Coyne: Supreme Court ensures our widely reviled patronage house (the Senate) will stay forever

Andrew Coyne | April 25, 2014

No other federation is quite so hamstrung, because no other federation has given over the power to amend its constitution quite so holus-bolus to its constituent states. Australians can amend their constitution by referendum, the American constitution provides for state ratifying conventions as an alternative to the legislatures, but in Canada nothing moves unless the premiers nod their heads. And, over a widening swath of the Constitution, that means all of the premiers.

Until now that was limited to what was spelled out in the Constitution’s text. Under Part V, Section 41 of the Constitution Act 1982, a resolution of “the Senate and House of Commons” and of “the legislative assembly of each province” is required for amendments to a short list of items including the office of the Queen, the use of English and French, the “composition of the Supreme Court of Canada” and Part V itself.

The section, note, does not mention the Senate of Canada. On the other hand, Section 42 of the same part specifically mentions the “powers of the Senate” and the “number of members” to which each province is entitled as coming under the general amending formula (seven provinces with 50% of the population). In referring the question to the Supreme Court for its opinion, the federal government had argued this meant the Senate could be abolished under the general amending formula.

Technically this would not run afoul of s. 41, since the Senate’s approval is not actually required to amend the Constitution: Elsewhere it is specified that if the Senate fails to pass such a resolution in 180 days, the Commons has only to repass it to send it on. But even if you don’t buy that: Couldn’t the Senate be effectively done away with, as the government also asked the Court, under s. 42 — that is by “abolishing the powers of the Senate and eliminating the representation of provinces”? Section 42 just says powers and numbers. It doesn’t say which powers or numbers.

Nothing doing, said the Court. Whatever the Constitution might say or not say, such a change would fundamentally alter our “constitutional architecture,” a delicate construct the Supreme Court conjured, as it so often does, out of the air. While s. 42 allows “significant changes to the powers of the Senate and the number of Senators,” it wrote, “it is outside the scope of s. 42 to altogether strip the Senate of its powers and reduce the number of Senators to zero.”

Very well. Suppose Parliament plus seven-and-fifty voted to reduce the Senate’s numbers to one, and its powers to singing the national anthem. Would that leave the Court’s constitutional architecture intact? How far may the powers and numbers of the Senate be diminished, before the Supreme Court declares some Confederation bargain or other has been violated? Who knows? On the evidence, it would appear to depend on the Court’s mood.

This is no idle matter, because on the other questions before it the Court showed the same distressing tendency to freelance. Could Parliament, for example, acting under its Section 44 power to “exclusively” amend “the Senate and House of Commons,” provide for Senators to be appointed only after non-binding consultative elections? Say it again: non-binding — the Governor General (the Prime Minister, really) could still refuse their advice.

Nuh-uh, said the Court. That would amount to a change to the “method of selecting” Senators, and thus come under the general amending formula. That is, it would not change anything in some narrow “textual” sense, but again, there’s “the architecture” to consider. The Fathers of Confederation wanted Senators to be appointed, and therefore weak; make them elected, and they would be strong. To the government’s point that the elections were purely consultative, the Court simply said “my eye.”

I paraphrase. In fact what it said was: “Federal legislation providing for the consultative election of Senators would have the practical effect of … endowing them with a popular mandate.” It would give the Senate “democratic legitimacy.” Okay: suppose the consultation were not formalized in legislation. Suppose the prime minister simply followed a policy of appointing senators who had been elected by some process or other. Wouldn’t that imply the same dangerous “legitimacy”? Or suppose he merely consulted widely: how widely could he consult before it damaged the Constitution’s interior decor? Once freed from the confines of what’s actually in the Constitution, these become live issues.

And so on. Parliament can’t impose fixed terms on Senators’ appointments, either, the Court ruled, out of the same concern for the constitutional furniture: unless appointed for life (75, actually, but who’s counting?) their independence would be reduced, thus somehow engaging “the interests of the provinces.” On the other hand, the Court waved through Parliament’s right to eliminate the current wealth and property requirements for Senators (outside Quebec). These were, we must assume, not part of the Senate’s original purpose, to which the Court is otherwise so devoted. Oh? Then why were they put in?

We are left to conclude that virtually any change to the Senate is impossible without the consent of at least seven and possibly all of the provinces. In principle this is to protect the interests of both levels of government, but the “practical effect,” to borrow a phrase, is to make Senate reform impossible, and Senate abolition unthinkable.

And so the status quo — a widely reviled patronage house that, contrary to theories of the self-restraint imposed by its current illegitimacy, has intervened decisively on such trifles as abortion, free trade and global warming — is with us forever. The 1982 Constitution set the lock, and the Supreme Court has just turned the key.

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