A few comments on this.
As to the question of the election of senators...
The potential effectiveness of The Honourable the Senate of Canada
rests with the fact that the Upper House is an appointed chamber. It is an asset to Canadian legislature and governance to have a House that is able to review matters in less of a partisan heat than can their colleagues in the Lower House. (Of course, the more substantial tenure is also a key component of this, which is another fundamental characteristic of the Senate that is under attack by the current prime minister.)
The Senate's powers are equal to those of the House of Commons
, with three exceptions: (a) it cannot originate
money bills, or amend them to increase
appropriation; (b) for constitutional amendments, the Senate enjoys only a 180-day suspensive veto; and (c) Her Majesty's Government for Canada
is not responsible to the Senate and is not expected to resign as the result of a defeat of one of its bills in the Upper House. In all other respects, these two chambers are equal.
The Senate can amend and defeat legislation as it fees fit (including budget bills, as long as it either defeats the bill outright or decreases
appropriation), and it can block any initiative of the House of Commons. These powers are incompatible with an elected Upper House in the context of responsible government. You could have a situation where a budget has been defeated by an elected opposition in the Upper House (which would now be more keen to exercise its more radical powers, which have traditionally been reserved except in the most serious of cases), and this could grind the operations of the public service to a halt. We should not have a situation such as we see so frequently in the United States of America
, where their legislatures are constantly locked in stalemate, threatening the smooth administration of government.
The Senate performs its functions well now. It provides an opportunity for the legislative process to be slowed down so that bills can be more properly scrutinised and reviewed than they are in the House of Commons. As appointed senators, they are also free to vote against measures that they feel are bad for the country, whether or not the prime minister is on board. And that makes a perfect segue to my next point.
As to the prime minister seeking "commitments" to support certain issues...
This is an unacceptable practice that risks damaging the independent review role that the Senate is responsible for performing. The Right Honourable Stephen Harper P.C., M.P.
), the Prime Minister
, continues to damage effective and responsible legislature by precluding the possibility that honourable senators debate and consider
the proposed reforms.
It is vital in a democracy that members of a legislature have the opportunity to consider a matter, to consider amendments to it, and to make a decision based on the cut-and-thrust of debate. By tying the hands of Senate appointees into supporting a given issue, no matter what the conversation to follow may be, he is attempting to erode the effectiveness of the Upper House. If there are reforms to come, then let them come, but do not attack and damage the functions of the Upper House that we work with now pending some notion of reform that may or may not be passed at some later time.
And as to the constitutionality of such reforms...
The prime minister is on shaky ground with his proposed reforms to the Senate, in any case. In a response to questions referred to the Supreme Court of Canada
in Re: Authority of Parliament in Relation to Upper House
(1980), the Supreme Court assessed that "it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process." The Court determined that fundamental changes, including the direct election of senators, would require the consent of the provinces. The Court declined to answer the question on tenure, but noted that changes to the term of office could fundamentally change the Senate's role as a chamber of sober second thought.
I am of the view that the prime minister is on dubious constitutional footing with his attempts to pass amendments to the Constitution Act, 1867
exclusively through Parliament. The Senate was designed to safeguard regional interests, and so the idea that it could be restructured in so radical a way without the consultation with and the consent of the provinces is ludicrous.