Supreme Court and the Senate

One topic that has been very actively discussed recently both on Parliament Hill and in Okanagan-Coquihalla is the Canadian Senate. There are generally three main perspectives that I hear from local citizens and from other Members of Parliament in Ottawa that include reforming the Senate, abolishing the Senate altogether and leaving the Senate alone…. taking the status quo approach. In these discussions I have also discovered that there are, at times, some misunderstandings of the legal status of the Senate and the obligations of Government to comply with legislation that, in some cases, is well over one hundred years old.

One area that I frequently hear disdain for pertains to the practice of appointing various Canadians to the Senate. The question I am frequently asked is “Why doesn’t the Prime Minister stop appointing Senators and just get rid of the Senate?” The challenge is that the Senate, sometimes referred as the “Upper Chamber” or the “Other Place” (as it must be referred to within the House of Commons) is part of our Constitution. When the founders of Canadian Confederation created the Senate, they did so by essentially dividing Canada into five different regions: The Maritimes, Ontario, Quebec, Western and “Additional”. Additional includes Newfoundland, Labrador, NWT, Yukon and Nunavut. By design the Senate is not based on a representation by population model as is the House of Commons but rather on the principle of “equal” regional representation where the first four regions each have 24 seats while the “Additional” regions have 9 of the 105 seats in the Senate.

Consequently the constitutionally mandated Senate representation arrangement means that regions of Canada are legally entitled to the number of seats as defined within the Constitution Act of 1867. To date every Prime Minister elected in Canada’s history has by legal obligation, appointed Senators when vacancies arise, most often created by a Senator reaching the mandatory retirement age of 75. In addition the Prime Minister can, in exceptional circumstance, also temporarily appoint 4-8 additional Senators if there is a deadlock that must be broken.  One of the challenges to the Senate “equal” representation model is that it conflicts with representation by population.  As an example the current Senate model ensures there are actually 30 Senate seats east of Quebec – that is six more Senate seats than the 24 in all of Western Canada combined. Likewise for Ontario in spite of having a much larger population than Quebec has the same number of seats in the Senate.  As a result, some regions in Canada from a population perspective are under-represented compared to others. As an example here in BC there are 6 senators compared to 10 in Nova Scotia. When it comes to the discussion of abolishment of the Senate, many in western Canada are strongly in favour while some regions of Canada are equally as strongly opposed.

Recently our Government has posed a series of six questions to the Supreme Court of Canada to request a ruling on how the Senate can be legally reformed or abolished in accordance with our Constitution – one of the many questions is a ruling on the need to determine if there is a requirement to have a Canadian constitutional debate involving all of the Provinces and Territories. Although many have expressed a desire to see action taken on the Senate, few have expressed interest in opening up a Canadian constitutional debate that could potentially pit different regions of the country against each other a time when national unity is critically needed. This will be the first time in over three decades that our Supreme Court will look at the issue of Senate reform in a review process that will ideally provide more clarity on how action can be taken on the subject of Senate reform and/or abolishment. I welcome your views on this subject.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.