Prime Minister Stephen Harper is being challenged to ask the Supreme Court of Canada whether his moratorium on Senate appointments is constitutional. The Senate chamber on Parliament Hill is shown May 28, 2013. THE CANADIAN PRESS/Adrian WyldAdrian Wyld/The Canadian Press
The Senate, the Senate, the Senate. The fact that a number of senators were unable to honestly identify their place of residence, or keep accurate track of expenses, or endure cold Camembert at 30,000 feet, has turned the Upper House into the equivalent of a radioactive-waste holding facility. Nobody wants it in their neighbourhood. The Liberals disowned their senators. The New Democrats won't name any if they form the next government. And MPs of all parties would generally like to see the stench from that other House moved as far away from them as possible.
Which explains why Prime Minister Stephen Harper, the man who appointed more than half of the current Senate, is now putting a moratorium on new senators. He's also trying to put the monkey on the backs of the provinces. He says it's up to the premiers to come up with ideas on how to reform the Red Chamber – or abolish it.
The thing is, while the Senate itself is clearly in crisis – a crisis of institutional legitimacy, questionable competency and, for a small number of senators, legality – the Senate's various acts of self-destruction aren't exactly a national crisis. Even Mr. Harper recognizes this. The PM has a political need to give the impression of energetically gesticulating on the Senate file, given that the Mike Duffy trial resumes in two weeks, just in time for the election. But the PM hasn't named anyone to the Senate in two and a half years – 22 of 105 chairs are empty – and on Friday the PM said the missing senators aren't missed and the government and Parliament of Canada can continue to function without them. Which is, at least so far, true. "Other than some people who want to be appointed to the Senate," said Mr. Harper, "no one's going to complain."
The fundamental problem with any attempt to reform or abolish the Senate is this: It's at the centre of the Canadian constitutional structure. "There shall be one Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons," reads Canada's original 1867 Constitution, the BNA Act. A government can't pass legislation without the approval of all three parts of Parliament. So, absent a constitutional amendment unanimously approved by Ottawa and all 10 provinces, no government can govern without a Senate.
Fixing the propensity of some senators to file ineligible expenses is one thing. It's necessary and doable. But altering the role of the Senate within Parliament, or writing it out of existence altogether – which, for those of you keeping score at home, is an issue that has precisely nothing to do with senators' misspent expenses – that's opening a giant can of grade A constitutional worms.
Mr. Harper says two routes are possible: reform – on which he was vague, other than wanting to have senators elected – or abolition. The PM made his announcement standing next to Saskatchewan Premier Brad Wall, who has long favoured abolition. And abolition is perfectly reasonable in theory. It's even perfectly reasonable in practice: Just look at the provinces.
Many once had upper houses, but not any more. Canada's Parliament would work just fine as a one-chamber body, with only the House of Commons. People across the political spectrum, from the federal NDP to Mr. Wall, think the way to reform the Senate is to abolish it.
The problem isn't the destination. It's the journey. We can't get there without amending the Constitution. Given the national unity crisis Canada went through in the long generation prior to 1995, and the peace we've experienced since, restarting constitutional negotiations looks like the definition of criminal negligence.
What about de facto abolishing the Senate – simply refusing to appoint any more senators, ever, and allowing the body to wither away? It runs into the same problem. The Constitution defines Parliament as the monarchy and two houses. If legislation doesn't pass the Senate, it isn't legal – and only a unanimous constitutional amendment can alter that. We can't wait the Senate out of existence.
Even Mr. Harper's recent refusal to fill Senate vacancies, and his promise to stay the course if re-elected, may itself be unconstitutional. The Constitution says that "the Governor General shall from time to time, in the Queen's name … summon qualified persons to the Senate." It also says that "when a vacancy happens in the Senate by resignation, death, or otherwise, the Governor General shall by summons to a fit and qualified person fill the vacancy."
The operative word is "shall." The fundamental law of the country doesn't appear to give the PM the choice of watching vacancies grow in the Upper House. At some point, he must fill them.
Which brings us to the option of reforming the Senate. The old Reform Party used to champion a Triple-E Senate: elected, effective and equal. What Canada has right now is a Zero-E Senate. But is Zero-E, in the final accounting, better than the alternatives? It's a subject we'll return to later this week.