Second thoughts sober

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Dale Cummings

The Harper government is proceeding correctly by referring its plan for Senate reform to the Supreme Court of Canada, which will be asked to rule on several questions, including the amending procedures that would be needed to establish term limits for senators and the democratic selection of Senate nominees.

The high court will also be asked to rule on how the Senate might be abolished. The termination of the Red Chamber is not on the government's agenda, but it makes sense to ask the justices to deal with the question while they are considering the other issues.

Some Canadians, including the Opposition NDP, would prefer to see the Senate abolished rather than subject the public to years of rancourous debate on an institution that is widely dismissed as a waste of time and money.

Others say it would be pointless and possibly dangerous to reform the upper house without also developing a new constitutional convention on how to resolve disputes between it and the House of Commons, particularly if the Senate acquires more credibility as an elected chamber. Mr. Harper, however, is prepared to counter that possibility with an amendment that would assert the primacy of Parliament.

The idea of a Senate that is elected, equal and effective -- the rallying cry of western reformers in the past -- is not being considered because it would require a complete overhaul of the system.

Such a dramatic change in the country's political framework would almost certainly require a full constitutional convention and the approval of seven provinces representing more than 50 per cent of the population, the amending formula that was adopted when Canada patriated the constitution in 1982.

Section 44 of the Constitution Act, however, says "Parliament may exclusively make laws amending the Constitution of Canada in relation to executive government of Canada or the Senate and House of Commons."

Mr. Harper believes Sec. 44 gives his majority government the legal authority to reform the Senate unilaterally. Legislation to that effect was introduced in 2011. Since then, however, the province of Quebec launched a legal challenge by asking its Court of Appeal to consider if the federal government had the power to act alone.

In response, the federal government decided to seek the Supreme Court's blessing; something it should have done after it was first elected in 2006 on a promise to reform the institution.

As a minority government, the Conservatives would have been unable to force the issue in the House, but at least many of the outstanding questions would have been answered.

It could be another two years before the Supreme Court delivers its rulings, which, if history is a guide, may well tell the government it has the legal authority to proceed on its own, but that custom requires consensus and consultation with the provinces.

Such a vague ruling might just tip opinion in favour of outright abolition, but for now Mr. Harper is striving for relatively modest changes that would make the Senate more meaningful and democratic.

It theoretically plays an important role now because of its power to review, delay and even propose laws, but Mr. Harper rightly believes it cannot achieve its full potential without a few basic reforms.

Unfortunately, the government's modest goals will do nothing to address the fundamental unfairness of the Senate, which was supposed to be a body that represented regional interests.

It worked fine in 1867 when Canada was just three regions -- Ontario, Quebec and the Maritimes -- each with 24 senators, but it went downhill with the growth of the West, which has just 24 senators for B.C., Alberta, Saskatchewan and Manitoba.

Real reform will eventually need to address the imbalance, but in the absence of a strong national will to radically overhaul the Senate or to abolish it completely, modest, incremental change is the most sober course of action.

Republished from the Winnipeg Free Press print edition February 7, 2013 A12