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Restore Senate's mandate

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The constitutionally enshrined purpose of the Senate as envisioned by the Fathers of Confederation was for the upper chamber to be Canada's forum for regional representation. Unfortunately, current received wisdom is to confuse regional voice with provincial authority. This misdirection must be debated openly before any corrective reform measures are implemented.

As has been noted, the Senate suffers from poor press and a worse public reputation. The litany of criticism -- including the appointment process, the quality of appointees, questionable corporate associations, inappropriate veto power of an unelected body, lax attendance, (overly) generous compensation, lack of true regional representation, insufficient legislative input -- calls for concrete Senate reform beyond the electoral adjustment Prime Minister Stephen Harper has proposed.

Rather than face another round of self-serving political manifestos and the barrage of provincial demands that any formal constitutional overhaul would trigger, the Harper government is considering two pieces of legislation that are truly Mackenzie King-like in their approach -- democracy if necessary, but not necessarily democratic.

Resurrecting sections of the previous Parliament's Bill S-8, the Senatorial Selection Act, sitting prime ministers -- through vice-regal appointment -- would anoint provincially nominated senators-in-waiting while still retaining the constitutional option of declining nominees at their discretion.

In a separate bill, at odds with Sec. 29 (2) of the Constitution Act, 1982, term limits on new Senate appointments would be imposed.

These legislative alterations may represent goodwill gestures toward true parliamentary democracy, but in reality they are constitutionally questionable, jerry-rigged measures meant to impose new constitutional conventions upon outdated portions of Canada's foundational document. The most seriously flawed consequence of this initiative, however, would be the unwarranted grafting of provincial influence onto the federal Parliament.

For now, in lieu of constitutional amendment, the seminal question is: How will newly appointed senators, though ostensibly elected by popular ballot, be the constitutionally mandated guardians of regional interests in ways provincial politicians or provincial and territorial governments currently are not?

It is manifestly important not to confuse Canada's regions with its provinces -- a misinterpretation that now passes as political gospel.

As history attests, the West has an ethos far grander than its parts -- B.C., Alberta, Saskatchewan and (some would argue) Manitoba. Similarly, the Maritimes already are regionally, not provincially, identified, while the North holds a near-mystical status beyond its cartographic boundaries.

Provincial jurisdiction has been constitutionally defined and protected since the 1867 BNA Act. Regional representation, however -- the amalgam of common provincial or territorial economic, cultural and environmental interests -- remains the stated, but as yet unused, component of Canadian institutional democracy.

In a move that was historically informed and (uncharacteristically) prescient, that responsibility was assigned to Canada's (Divisional) upper house (Constitution Act, 1982, Sec. 22) by the Fathers of Confederation.

Any reforms must address the foundational purpose of the Red Chamber as originally envisioned -- to represent those national concerns beyond matters of constitutionally enshrined provincial or federal jurisdiction.

Canada sits at a democratic crossroads. It has the opportunity to further define itself through a restructured upper house, one comprised of a series of non-competitive, unifying, trans-provincial identities. The Senate, the constitutionally enshrined guardian of this option, can at last fulfil its stated promise.

Unique models of reform based on regional identity have been presented to select legislative committees. They have included modifications to constitutionally mandated regional-Senate expression and representation; changes that would accommodate an independent Senate electoral system; renovations to the design and shape of a newly constituted Senate; and an outline of renewed legislative and ancillary powers. If deemed acceptable, all could be enacted without the need to reopen the dreaded constitutional hornets' nest.

Democratic reform has been characterized as a slow bore through hard wood. With its current majority, the Harper government is poised to hasten that overdue process.

Before adding further structural layers of unwarranted and unpopular political influence to a Parliamentary institution in dire need of renewal and reconnection, however, it is incumbent upon Parliament to go beyond its proposed "consultative referenda" on Senate appointment. It must search out and implement the best ways possible to reinvigorate the Senate and make it accessible and accountable to all.

 

Mark Rash is the author of Approaching Parliamentary Democracy: A Proposal for Senate Reform / Abridged for Select Legislative Committee Review: Province of Manitoba, Feb. 21, 2009.

Republished from the Winnipeg Free Press print edition May 29, 2013 A11

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