© Canadian Press photo
The Supreme Court of Canada is pictured through a window of Centre Block on Parliament Hill in Ottawa. The SCOC is expected to rule Friday on Senate Reform.
By Senator Percy Downe (guest opinion)
As we await the ruling of the Supreme Court on changing the Senate of Canada, I think it is helpful to start at the beginning — The Confederation Agreement of 1867. Many Canadians are surprised to learn that if there had not been a deal on the creation of an appointed Senate, there would not have been an agreement to form Canada.
Quebec insisted on an appointed Senate with fixed membership to protect minorities and to give a regional voice that would be separate from the House of Commons elected by population. In 1867, minority French Roman Catholics were joining a country dominated by English Protestants. As George Brown, one of the Fathers of Confederation from Ontario said:
“Our Lower Canada (Quebec) friends have agreed to give us representation by population in the Lower House (the House of Commons), on the express condition that they shall have equality in the Upper House (the Senate). On no other condition could we have advanced a step; and, for my part, I am quite willing they should have it.”
The creation of the Senate was a fundamental condition for the founding of Canada, so why does the Government of Canada think they can change it, without the involvement of the provinces or any discussions with Canadians? The Supreme Court will likely rule that they cannot, otherwise provinces, particularly Quebec, would regard unilateral action as a betrayal of the original agreement on Confederation.
Many previous federal governments considered changes to the Senate, but were advised that it would be subject to the 7/50 rule in Section 42 of the Constitution Act, 1982. Simply put, this means that any substantial changes to the Constitution must be approved by the federal government and the governments of any seven provinces representing 50 per cent or more of the population of Canada.
The Harper government argues that Section 44 of the Constitution Act grants Parliament the unilateral power to make laws affecting the institution in relation to the Senate.
However, it has been argued in the past, and accepted by previous governments, that the scope of Section 44 is very narrow and would not cover a radical change in mandate which would change “the essential character of the Senate”.
Even if such a change was not covered by Section 42, it would still fall under the general amending formula (Section 38), which is also the 7/50 rule. All 7/50 amendments are subject to Bill 110 (An Act respecting constitutional amendments) and would require support from provincial governments in all five regions of Canada. Indeed, no minister of the federal government can introduce a 7/50 motion in the House of Commons without the consent of Canada’s five regions.
It should be remembered that the change in Senate tenure in 1965 — a reduction from life to age 75 — was done through federal legislation, but that was before the adoption of an amending formula. With the passage of the Constitution Act in 1982, such a change today would require 7/50 support.
If one compares this government’s efforts with the reforms of the British House of Lords undertaken in the United Kingdom … the effort and focus are very different.
In the 1997 general election, Labour Party Leader Tony Blair committed to a reform which would make the House of Lords “more democratic and representative” without changing its powers.
The reforms and consultations undertaken in the United Kingdom since 1997 continued beyond Tony Blair’s government, and have involved: a white paper, a royal commission, and a committee of the two Houses of Parliament. Many positive changes to the House of Lords have been instituted as a result of these consultations.
Parliament, both the House of Commons and the Senate, needs to be improved to better serve Canada, and I believe that after 147 years, Parliament should be reformed. Prime Minister Harper should follow the example of the United Kingdom and consult citizens and listen to Canadians on what reforms they want and involve the provinces for their input and suggestions.
Canadians have a right to be involved in how Parliament can be improved to better serve our country. But one individual, in this case the prime minister, cannot unilaterally change the way Canada is governed.
As we wait for the wisdom of the Supreme Court to rule on how we can reform the Senate of Canada, we must remember that it is all Canadians who deserve a voice in reforming our national institutions.
Charlottetown Senator Percy Downe is vice-chair of the Senate Standing Committee on Foreign and International Trade.