THE BLOG
05/01/2014 01:20 EDT | Updated 07/01/2014 05:59 EDT

The Senate Reference Decision Reeks of Legal Elitism

What if all Senators, save for the 20 needed to make quorum, simply resigned en masse tomorrow? In the beginning of his mandate, Harper refused to appoint non-elected Senators to the Upper Chamber. He ended up doing so because the dwindling numbers compromised the Senate's functionality. This time around, the Prime Minister may very well stop appointing Senators for good.

Anadolu Agency via Getty Images
BERLIN, GERMANY - MARCH 27: Canadian Prime Minister Stephen Harper speaks during a press conference with German Chancellor Angela Merkel (not seen) after their meeting in the chancellery, Berlin, Germany on March 27, 2014. (Photo by Cuneyt Karadag/Anadolu Agency/Getty Images)

The Supreme Court's decision in the Senate Reference smacks of legal elitism. It is a laborious reading between the lines of the Constitution.

Last year, the Harper government referred its Senate Reform agenda to the Supreme Court for constitutional approval. The federal government sought to introduce legislation that would allow voters from each province to select candidates for the Senate through non-binding plebiscites. The legislation would require the Prime Minister to consider the pool of applicants; however, it would not change the Prime Minister's sole prerogative in making appointments to the Senate, as necessitated by the Constitution. The government also sought to unilaterally limit the terms of Senators to nine years from the current maximum of 45. The government argued that it did not need provincial support to do so because section 44 of the Constitution allows Parliament to amend the Constitution in relation to its own political institutions.

On both fronts, the Supreme Court decided that the federal government needed approval from 7 provinces -- a political nightmare if not practical impossibility. In the Court's wisdom, both of the reforms would fundamentally change the nature of the Senate. Holding consultative elections for the Senate would "weaken the Senate's role of sober second thought." Limiting the terms of Senators to nine years would compromise their ability to provide independent perspectives on legislation.

The Court's reasons lead us to some untenable conclusions. A Prime Minister, while able to consult with as many political insiders as he or she wants, is prohibited from seeking the opinion of the Canadian electorate before appointing someone to the Upper Chamber. Anything less than a 45 year term would apparently send our current legislative system into disarray, compromising a Senator's ability to "freely speak one's mind on the legislative proposals of the House of Commons."

These concerns are overblown. For a Court that has taken great pains to secure our Constitution as a "living tree" -- a non-static document that is able to adapt to modern times -- its decision is stuck in a bygone Victorian era. Reading about how the importation of "democracy" into the Upper Chamber would alter the Chamber's character is like reading apprehensions of universal suffrage from over a century ago: Will legislators really be able to provide thoughtful consideration to legislation after receiving a mandate from the mercurial masses? Is a decade really enough time for a Senator to be comfortable enough with her job to begin doing it effectively?

Somehow a democratic mandate is irreconcilable with informed reasoning; only the non-elected can provide sober-second thought. The premise is offensive. It is at odds with the trite - but apparently controversial - belief that those who are elected are best able to determine the laws that govern us.

But the judgment's greatest flaw is its silence on reform that is already underway, and whose constitutionality is now in question. After winning an Albertan plebiscite, no one thought that Bert Brown's 2007 appointment to the Senate was unconstitutional. Nor has the earth shattered since. There is no evidence that the former Senator was any less capable of performing his duties because he sought endorsement from the province's electorate before being appointed.

What if Quebec, Ontario, and Saskatchewan -- three provinces that could shift the majority in the Senate - began holding plebiscites in the same manner that Alberta "elected" Bert Brown. A Prime Minister may very well wish to appoint these candidates, even without legislation requiring him to consider them. But according to the Court's interpretation of the fundamental nature of the Senate, a widespread introduction of democratically-minted Senators would jeopardize the Chamber's character as a non-democratic institution. Would such plebiscites, as they currently exist in Alberta, now be illegal?

A further "what if?" What if all Senators, save for the 20 needed to make quorum, simply resigned en masse tomorrow? In the beginning of his mandate, Harper refused to appoint non-elected Senators to the Upper Chamber. He ended up doing so because the dwindling numbers compromised the Senate's functionality. This time around, the Prime Minister may very well stop appointing Senators for good. We could effectively achieve the abolition of the Senate without so much as a First Minister's meeting. Would the Court then intervene and require the Prime Minister to appoint Senators? And if so, how could the Court square such a mandate with its own vision of an executive that is unconstrained in appointing members to the Upper Chamber?

The Supreme Court thinks that the non-appointed are a little smarter than the democrats. But the rude awakening will be when a democratically elected government will fulfill Senate reform on its own terms, with or without the highest Court's endorsement.

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