I missed the street rallies, salon celebrations, and bonfire effigies of Prime Minister Stephen Harper, that slippery democrat who failed so conspicuously to democratize the Canadian Senate. I’ve caught up, however, on the small-c conservative recriminations in print and online. They should be savored quickly; the subject will soon return to the closets of Canada’s agenda-setters.
Like the seal hunt, the tar sands, and Justin Bieber, it’s truly embarrassing. Year in and year out, we agree to spend nearly $100 million to be co-governed by an unelected Senate.
And last Friday, Canada’s Supreme Court reaffirmed unanimously that Canada’s second legislative body isn’t supposed to be democratic and that Canada’s Parliament can’t make any further legislative steps in that direction—even incrementally.
The Court declared:
“The framers (in 1867) sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives.”
And just in case any organic American constitutional tendencies had slipped north, John Geddes of Maclean’s Magazine shrewdly highlighted their concluding velvety handcuffs:
“In summary, the consultative election proposals … would amend the Constitution of Canada by changing the Senate’s role within our constitutional structure from a complementary legislative body of sober second thought to a legislative body endowed with a popular mandate and democratic legitimacy.”
With all the flowery affectation of grade ten history teachers everywhere, the Court prettified a signing bonus for a 19th-century farm-team aristocracy that has, in fact, delivered little sober second thought and has never accounted to Canada’s provinces nor stayed out of the cheesiest corners of partisan politics.
The Courts extravagant literalism, however, has been widely praised for its awful clarity. They showed off their minors in political science and our establishment swooned.
Just because the Prime Minister asked its opinion, however, didn’t mean the Court was obliged to take itself so seriously and to so dangerously discourage future initiatives to make Canada’s whole Parliament more legitimate and better equipped to stand up for the federation in any future unity crisis.
For instance, they could have fretted that Harper’s option of "consultative elections" would probably lead to further pressure to enhance the Senate’s legislative powers. They didn’t have to take on their shoulders the responsibility to block that future risk by not allowing Senate elections to leak out of Alberta’s frisky democracy. Indeed, their silence on Alberta’s Senatorial Selections Act displayed either timidity and/or a lack of confidence in their ruling.
It’s ironic that Canada’s Supreme Court today would dignify the sober-second-thought rationale for an unelected Senate. That necessary constraint on popular democracy was appropriately reassigned to the Supreme Court itself, in the 1982 Constitution Act.
That liberal accomplishment — which has made Pierre Trudeau a hero in this century — was damned in the last century by most constitutional "experts" as an arrogant usurpation of the traditional constitutional prerogatives of the ten provinces. It was a glorious end-run by a PM with a handful of allies willing to break convention and answer for it later.
Is there anything that can be done in the future to democratize the Canadian Senate without a Prime Minister with Pierre Trudeau’s running room or allies?