The door to a democratic Senate is still open

  • National Newswatch

I find myself a bit bewildered at the reaction to Friday's Supreme Court ruling regarding Senate reform.The Court did what it was asked to do in the reference: provide a roadmap as to how various kinds of Senate change could or could not be be accomplished.Like others, I was disappointed that the Court wasn't more, shall we say liberal, in its ruling regarding consultative elections. The Court's strict, and conservative, interpretation of the amending formula is welcome news to those who disdain judicial activism, but less welcome to those who view the constitution as a living instrument. I had hoped, and thought it plausible, that the Court would agree that a Prime Minister could seek the advice of voters prior to making a Senate nomination, but they did not. So be it. At least it is now clear.It is being widely interpreted that the Court shut the door on Senate reform. I don't see it that way. In fact, it could be the opposite.While the Court ruling is a very cold shower for Senate abolitionists; its effect is warmer as regards other kinds of meaningful reform, for instance the election of Senators. There is a world of difference between a constitutional amendment which requires unanimity (such as does abolishing the Senate), versus the general amending formula which the Court says applies to meaningful Senate reform (such as electing Senators).The general formula requires "only" the approval of the federal Parliament and the legislatures of seven provinces comprising at least 50% of the population (known as 7/50). This is not impossible to imagine - as long as we abandon the "round of constitutional negotiations" approach. We have learned the hard way (Meech Lake and Charlottetown) how distracting, damaging and ultimately unproductive those can be.The Court ruling does close the door on Senate abolition: good luck getting unanimity among eleven governments and their legislatures. Those who advocate the abolition position must take this to heart. While "get rid of the thing" may be an understandable expression of frustration, it is constitutionally impractical, and deserves to be discarded as one of the three theoretical options. Clinging to it is a pretence, effectively an endorsement of the status quo. (Thomas Mulcair, Brad Wall, and the successors to Dalton McGuinty, kindly take note,)Today, we are left with two realistic Senate options: the status quo, or meaningful reform (not including abolition) based upon the approval of the legislatures of at least seven provinces comprising at least 50% of the population. This is not as impossible as is being said over the past 24 hours.Frankly, in one sense the cause of Senate reform is better off today than it was yesterday, since we now have two clear options, rather than the confusing three.That process does not have to start in Ottawa, and probably shouldn't, lest it trigger another Pandora's box of negotiations over a potpourri of issues. The "negotiation" approach to constitutional change (I'll accept your amending formula if you'll accept my Charter; I'll pave your highway if you support my patriation, etc) deserves to be discarded.In short: Senate reform can be initiated by a single province, or provinces. Any provincial legislature can adopt a resolution for an elected Senate. If replicated within the following three years by at least six other provincial legislatures, representing a combined total of least 50% of Canadians, plus the federal Parliament, you have successfully amended the Constitution.This is something we can do, if we wish to. Or, we can live with the status quo.Personally, I'd pick democracy.