Constitutionalizing the Senate: a modest democratic proposal.

• Author: Colon-Rios, Joel I.
• Position: Canada - Symposium on the Senate Reference

The Senate Reference did not provide an ideal situation for clarifying the nature and limits of the power of constitutional reform in Canada. The facts gave the Court no choice but to recognize the fundamental role that the Senate plays in the Canadian constitutional order, and therefore to place some of its main features outside the scope of section 44 of the Constitution Act, 1982, even if they ran contrary to basic democratic values. For example, in order to explain that the implementation of consultative elections would alter the constitution's basic structure, the Court was forced to construe in a negative light the prospect of a democratically legitimate Senate. In this paper, rather than attack or defend bicameralism, we will argue in favour of attributing a democratically reconstituted Senate with the primary responsibility of reviewing the constitutionality of legislation (as opposed to acting as a chamber of "sober second thought" with respect to the policy decisions of the House of Commons). Such an approach, we suggest, would augment the overall democratic legitimacy of the constitutional order.

Le Renvoi relatif a la reforme du Senat n'etait pas l'occasion ideale pour la Cour supreme de clarifier la nature et les limites des pouvoirs en matiere de reforme constitutionnelle. La Cour n'avait d'autre choix que de reconnaitre le role essentiel que joue le Senat dans l'ordre constitutionnel canadien, et donc mettre certaines de ses caracteristiques essentielles a l'abri de la procedure de modification de l'article 44 de la Loi constitutionnelle de 1982, meme si ces caracteristiques sont en conflit avec les valeurs democratiques fondamentales. Par exemple, pour expliquer en quoi un regime d'elections consultatives transformerait la structure fondamentale de la Constitution, la Cour a du decrire de facon negative l'idee d'un Senat elu democratiquement. Dans cet article, plutot que d'attaquer ou defendre le bicameralisme, les auteurs plaident en faveur d'un Senat democratiquement constitue et dont le role principal serait d'examiner la constitutionnalite des mesures legislatives (et non simplement porter un << second regard attentif>> sur les projets et decisions de la Chambre des communes). Ils estiment qu'une telle approche favoriserait la legitimite democratique de l'ordre constitutionnel dans son ensemble.

Introduction I. The Impasse II. Of Tiered Amendment Rules III. Of Basic Structures and Democracy IV. Upper Houses and Democratic Legitimacy V. The Senate as a Constitutional Reviewer Conclusion Introduction

The Senate Reference (1) did not provide an ideal situation for clarifying the nature and limits of constitutional change in Canada. The facts gave the Supreme Court little choice other than to recognize the fundamental role that the Senate plays in the Canadian constitutional order and, therefore, to place some of its main features outside the scope of unilateral action by the federal government under its exclusive authority to "make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons." (2) Perhaps more controversially, in order to prevent the implementation of consultative elections that, according to the judges, would fundamentally alter the architecture of the constitution, (3) the Court was forced to construe the prospect of a democratically legitimate Senate in a negative light. This construction seems a somewhat perverse and unappealing way to proceed, especially if the constitution is intended to promote, not stymie, democratic improvement.

Of course, the democratic deficiencies of the Canadian Senate (for example, non-elected chamber, non-proportional representation of the provinces, long appointments, historical property qualifications, et cetera) are not unique; they have been widely shared by upper houses in other jurisdictions. Like the Supreme Court, modern and contemporary defenders of bicameralism have nevertheless attempted (with varying degrees of success) to present those democratic deficiencies as strengths: upper houses slow down the legislative process, avoid sudden legislative changes, protect otherwise potentially underrepresented minorities, force legislators to have second thoughts, and so on. (4) Despite these efforts, many jurisdictions during the twentieth century radically reformed their upper houses or moved toward different forms of unicameralism, and in a number of countries (such as the United Kingdom and Ireland), discussions of this nature continue. Viewed in this light, Canada might be considered to be on a backward slide toward a less, not more, democratic scheme of government.

In this essay, we provide both an explanation for the existing state of affairs and a basis for doing something about it. The main challenge is to think in a less blinkered way about what counts as democratic in regard to the role and composition of the Senate as well as the larger constitutional processes at play. In so doing, it might become possible to diagnose the causes of the present malaise and to offer a more satisfying prognosis for a future and healthier role, if any, for the Senate in the Canadian body politic. A commitment to democracy is professed to be the bedrock of Canada's constitutional arrangement. Our proposal takes the commitment more seriously than most commentators or scholars do. So reinvigorated, Canadian democracy might be better placed to improve, if not resolve, its long-running drama over the Senate's continuing existence and performance.

The paper is organized as follows. Part I considers the current state of the debate after the Supreme Court's decision in the Senate Reference. Part II compares the Canadian approach to constitutional amendments to arrangements and practices present in other jurisdictions. Part III builds on those comparative insights and argues that constitutions with similar amendment rules tend to use those rules to protect and promote basic democratic principles. While Canada's constitution does not explicitly adopt this approach, the Supreme Court has followed a similar route through the recognition of democracy as one of the underlying principles on which the constitution rests. In that sense, the decision in the Senate Reference may have underplayed the role that democracy plays in the Canadian constitutional order. Part IV identifies what we consider to be the main problematic features in the structure and operation of the current Senate. In Part V, we advance a substantive proposal that would address those problems: reconceiving the Senate as constitutional reviewer.

1. The Impasse

   The Senate is the upper, but less influential, chamber of Canada's bicameral Parliament. It has been the subject of countless plans and reform proposals about its membership, its appointment process, its powers, and its democratic legitimacy. (5) While these transformative efforts have been initiated and motivated by a diverse range of vested interests and political ideologies, Canada's Senate remains largely unchanged in its role or structure. Consequently, while there is an apparent consensus in support of the need for change, there is a complete lack of agreement on the direction that any change should take and the process by which it might be achieved. (6) All in all, Canada's Senate remains unreformed because it is neither sufficiently loved nor sufficiently unloved; it is tolerated, but not embraced.

   Efforts to change or abolish the Senate have been a staple feature of Canada's political and constitutional landscape since even before its creation in 1867. As far back as the 1840s, when the Senate was the Legislative Council of the Province of Canada, politicians and pundits have locked horns over its role and its composition. Indeed, in 1885, the ruling Liberal Party adopted, but failed to implement, a policy demanding that senators be elected. For the next hundred years or so, debate spluttered and surged over the nature of the appointment process and whether the Senate should simply be abolished. However, in the late 1970s and early 1980s, the debate over the possibility of electing senators was rekindled; Trudeau's efforts to implement a national energy policy alienated the western provinces and galvanized them to push for a so-called Triple-E Senate--elected (by local citizens), equal (between provinces), and effective (having genuine power).

   Following the failed Charlottetown Accord in the early 1990s, the Triple-E initiative lost its lustre, but the federal Conservative government persevered with the idea of a reformed Senate, especially the plan to elect senatorial candidates. However, not only did this run into strong opposition from both the New Democratic Party and the Bloc Quebecois, but pressing questions were raised generally about the constitutionality of any proposed reforms. Whatever the Harper government's motives, a reference was presented to the Supreme Court to clarify the constitutional status of different proposals. The case was heard in late 2013 and a judgment was rendered at the end of April 2014. In short, the Supreme Court nixed the realistic prospect of any Senate reform by the federal government without provincial sign-on. Barring an extraordinary degree of federal-provincial consent to push through institutional reforms or to amend the constitutional provisions for amendment, Senate reform is now considered off the political agenda for the immediate future.

   The basic thrust of the Supreme Court's decision in the Senate Reference is straightforward. In its unanimous decision, the Court decided that, although the Senate is a federal institution, any significant changes to it--tenure, consultative elections, abolition, et cetera--cannot be achieved by the federal government through section 44 of the Constitution Act, 1982, which allows the Canadian Parliament to unilaterally amend the Constitution of Canada. "The Senate," stated the...