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Constitutional can of worms
May 01, 2014
What did the prime minister expect? An end-run around the Constitution was never going to work. That was the message behind the recent Supreme Court of Canada ruling that any reform of the appointed body requires the consent of the provinces; that is, a change to an elected Senate with term limits requires the support of seven provinces representing 50 per cent of the Canadian population. To abolish the Red Chamber would be even more difficult, since it would need the support of all 10 provinces.
“The Senate is a core component of the Canadian federal structure of government,” stated the ruling by the top court in the land. “As such, changes that affect its fundamental nature and role engage the interests of the stakeholders in our constitutional design — i.e., the federal government and the provinces — and cannot be achieved by Parliament alone.”
The Canadian Constitution was a creation of the Fathers of Confederation, who worried about the vagaries of democracy as exemplified by the situation in the U.S., which had been engaged in a four-year civil war that killed 600,000 of its citizens. Representation by population would be one cornerstone of the new Canada established in 1867, but an appointed Senate was what Prime Minister John A. Macdonald described as a chamber designed to curb the “democratic excesses” of the elected House of Commons. It was also meant to provide representation for the regions of the new country, which was not the case in the House of Commons. It was as Macdonald said, the chamber of “sober second thought.”
While the Fathers of Confederation may have been initially happy with their creation, the Senate has become more like the monster created by Frankenstein in Mary Shelley’s horror book — a scandal-plagued institution. And it has become a monster that can never be  tamed and that runs roughshod over those who dare to open up the constitutional can of worms on the road to reform. That is way Prime Minister Stephen Harper has thrown up his arms in a sign of resignation following the Supreme Court’s ruling.
Wilfrid Laurier, one of Canada’s longest-serving and more politically savvy prime ministers, once mused that the Canadian Senate defied any meaningful reform as long as appointments to the Upper House were left in the hands of the prime minister. 
Actually, every prime minister has engaged in manipulation of the Senate to serve his or her aims. Former Prime Minister Brian Mulroney appointed a slew of senators to ensure the passage of the GST. Liberal prime ministers have made their own batch of appointments to ensure they have a majority in the chamber. Even Harper has outdone the number of appointments made by Mulroney’s Conservative government and has a majority of supporters in the Upper House.
Similar to today’s Harper Conservatives, Laurier and the Grits ran in a 1896 federal election promising a massive overhaul of the Senate. The Laurier reforms included term limits, as well as the possibility of electing senators. The Liberals even considered the outright abolishment of the Senate. All these over 100-year-old proposals were also recent possibilities to reform the Senate.
“Someone is asking what the (Laurier) Liberal party is going to do in regard to Senate reform now that it has a majority in the house ...,” the Toronto Globe editorialized. “The Liberal party was convinced of the need for reform by experiencing the power of a hostile and tyrannous (Conservative) majority in the upper house.”
Anti-Laurier newspapers, such as the Winnipeg-based Daily Nor’Wester, speculated that the need for reform arose only when there was a desire to have the Senate echo the policies of the government. Brandon Senator Kirchhofer said that Laurier’s notice to bring in a bill reforming the Senate was only a bluff. “The upper house does not oppose bills because they are brought up by a Liberal government but on their merit solely,” he claimed, although this statement had more to do with political double-talk than fact. 
Over time, the Senate majority had actually swayed to the Liberal side, which made it all the more quizzical why Laurier even contemplated reform. It could be, as the Portage la Prairie Weekly claimed on January 29, 1908, that the Senate had become “a graveyard of political reputation.” A February 13, 1900, editorial in the Winnipeg Telegram reinforced this view when it was said, the “worst feature of the Senate under the Conservatives was the use that was made of it to over-ride the will of the people by giving seats in it to men who were voted down by the electors.” A complaint often heard today.
The newspaper called this practice an insult to the voters of Canada. The same newspaper declared the Laurier government was selling Senate seats “at $10,000 apiece.” Today, the seat sale is for an annual salary of over $132,000 plus perks at taxpayers’ expense.
A.S. Hardy, the premier of Ontario, backed Senate reform in 1899, saying, “The senate has lost the confidence of the people ... and has become an obstruction.” La Patrie, a Montreal-based newspaper, editorialized that senators “have placed above the popular chamber (House of Commons and) the will of the people(,) their caprices and their arbitrary desires ... its reform has become imperative.”
Laurier’s goal of true reform was never attained due to political expediency as well as Conservative and Senate obstruction.
But there was one upper chamber that was abolished. At one time, Manitoba had its own Senate, which was called the Legislative Council that was made up of seven members appointed for life. When Robert “Hotel Premier” Davis elevated Colin Inkster from the unelected council to a cabinet position, the Manitoba Free Press declared the “novel cabinet ... must excite ridicule and disgust throughout the whole civilized world.” The same newspaper in 1874 claimed upper houses were established in the old days to protect the Crown rather than the people. Such a body may have provided some service many years ago, according to the newspaper, “but that day is past.”
When the council was abolished by provincial legislation in 1876, MLA Joseph Lemay sarcastically suggested to “roars of laughter” that the legislative assembly be adjourned for a month “as a token of sorrow” to mark the passing away of the Legislative Council. He further asked that a resolution be passed compelling each member “to attend the funeral.”
If only it was that simple today. There was no constitutional objection to the demise of Manitoba’s council, but the constitutional ramifications of Senate reform have already been noted by the Supreme Court.
A debate that has been ongoing for well over 100 years without a substantive outcome is proof positive that the Senate still defies meaningful reform. It would be quite a feat for any prime minister to untangle the Constitutional web that is the Senate.