Two Paths to Senate Reform

Abstract

The Constitution Act, 1982 offers two paths to Senate reform. Incremental reforms can be made by Parliament unilaterally. But changes to the method of selecting Senators or the powers of the Senate can be made only by federal-provincial consensus. The Harper government seeks to straddle these paths by proposing that Parliament unilaterally provide for the election of “Senate nominees,” who would subsequently be considered for appointment to the Senate. This article argues that because the practical effect of this reform would be to change the method of selecting Senators – Prime Ministers would invariably recommend the appointment of individuals elected pursuant to federal legislation – this reform cannot be made by Parliament unilaterally.

This article also argues that the limits the Constitution Act, 1982 places on Parliament’s ability to reform the Senate have a principled basis, and that they should not be seen as precluding the possibility of future reform. These limits protect the provinces’ legitimate interest in the future of the Senate – a change in the method of selecting Senators could significantly affect their current position as the primary spokespersons for regional interests. They ensure that a significant change to the nature of our democracy – one that could affect how the principle of responsible government is applied federally – cannot be made without a meaningful national discussion. Such a national discussion could produce consensus: polls show that an overwhelming majority of Canadians want a change to the status quo. A consultative referendum, held in conjunction with a general election (like several recent provincial referenda on democratic reform), could provide a guidepost for future federal-provincial negotiations.

Keywords: Senate Reform, Bill C-7, Democratic Reform, Constitutional Law, Constitution of Canada, Federalism, Senate

JEL Classification: K39