Writing in the Citizen and other Postmedia papers, MLI managing director Brian Lee Crowley critiques the federal government's Supreme Court reference on Senate reform. Crowley points out that "the government's proposals would create the worst of all possible worlds: the Senate would enjoy real power but no responsibility."  Crowley adds that "the current appointed Senate would be preferable to such a misbegotten reform".

Brian Lee Crowley, November 22, 2013

Last February, the federal government sent a series of constitutional questions (known as a "reference") to the Supreme Court seeking clarification on Ottawa's powers to reform the Senate. The court heard arguments last week, which happened to follow hard on the heels of the recent suspensions of three Senators for expense improprieties. However low the Senate may have sunk in public esteem, however, we must not rush into ill-considered reforms that could easily be worse than the status quo. And that's what the government's proposed reforms promise.

The government has impaled itself on the horns of a dilemma. On one hand they have promised to reform the Senate along democratic lines. On the other hand, they have no desire to trigger a round of constitutional negotiations whose success is unlikely and for which there is simply no appetite among the electorate.

Their strategy has therefore been to propose reforms that fall within Ottawa's powers while giving those powers an expansive interpretation. For example, they argue that electing individual senators does not require constitutional amendment. While the Supreme Court may disagree, the government is likely correct that elections are permissible as long as they are consultative only. Such a vote thus in no way replaces or diminishes the appointment mechanism that the Constitution now prescribes.

On the other hand, the Senate cannot and should not be a body that can usurp the powers of the Commons or the electorate. Yet at present the powers of the Senate and the Commons are essentially equal (the main exceptions: the Senate's suspensive veto only over constitutional amendments and the requirement that money bills be introduced in the Commons).

What has saved us from constant confrontations between the two chambers and deadlock in Ottawa has been the Senate's utter lack of any democratic legitimacy. With very few exceptions (such as the conflict over the GST in 1990) the Senate has yielded before a determined Commons.

There is little reason to think, however, that the Senate would be so self-effacing if its members enjoyed a democratic mandate, as the government proposes. On the contrary, a Senate with even a homeopathic dose of democratic legitimacy would be keen to flex its muscles vis-à-vis the government and the Commons.

Thus the government's proposals would create the worst of all possible worlds: the Senate would enjoy real power but no responsibility. At least the government based in the Commons must submit to the approval of the voters on a regular basis.

Not so our current Senate, were its members to be elected. Senators, once appointed, are there until age 75. While the government's reference includes proposals for term limits, I am confident the Supreme Court will confirm that Senators' tenure can only be changed by formal constitutional amendment (I recognize that some other knowledgeable observers disagree). So senators who were elected and then appointed by the prime minister (as is already the case for Alberta senators) would therefore never be called upon to submit themselves for re-election.

Remember that the election that really matters is not the one that puts an official in office. Rather it is the next one, where the official is called upon to give an account of himself and his stewardship of power. Under the current rules regarding Senate tenure, senators would be able to skip this tedious and unpleasant part of democratic accountability.

Under the government's approach, then, the powers and terms of senators will almost certainly remain as they are, but this powerful and unaccountable institution will now have at least a plausible claim to some democratic mandate. The existing power of the prime minister to appoint extra senators in case of deadlock between the two houses would be seen to be an undemocratic interference in the workings of an elected body.

The current appointed Senate would be preferable to such a misbegotten reform. Senate reform is a serious business. Our institutions are knitted together in a complex set of checks and balances that oblige us to look at the effects of changes we make across the whole institutional edifice, and not just in the Senate itself. Senate reform is desperately needed, but not so desperately that we should accept gridlock, power without responsibility or the gutting of our institutions to achieve a simulacrum of democracy.

If, as seems likely, the Supreme Court rules much and perhaps all of Ottawa's Senate reform requires formal constitutional amendment, the government will quickly realize that it faces three choices: an unacceptable status quo; an abolition that would damage our institutions and require constitutional amendment in any case; or a serious reform that strengthens our institutions and is endorsed by Canadians.

Of these three choices, there is only one that is right for Canada.

Brian Lee Crowley is managing director of the Macdonald-Laurier Institute (macdonaldlaurier.ca). He is the author of a new MLI paper titled Beyond scandal and patronage: A rationale and a strategy for serious Senate reform.

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