In the end, the Supreme Court came down on the side of the Senate, basically preserving the status quo by requiring seven of 10 provinces and 50 per cent of the population to agree to Senate reforms, and unanimous consent for abolition. A stern blow to old-school Conservative dreams of legislating Canada’s upper house into a democratic bliss of triple-e-dom, or altogether into obscurity, Prime Minister Stephen Harper was reportedly “disappointed” by the decision.
Disappointed, one suspects, because if Canada’s constitution and the basic foundations of our political system can’t be changed willy-nilly at the whims of a mere prime minister, well then what is our world coming to, right? God forbid we might actually have to follow due process to achieve our campaign promises for the electorate.
There is little doubt that Friday’s Supreme Court decision will not be met with good tidings by most Canadians, especially in Western Canada, where “senate” has long been considered a dirty word, and dreams of abolition looked upon like the quest for the Holy Grail. There are also few who would argue that Canada’s Senate couldn’t use some reforming — term limits and elections, for starters — aside from the yearnings of the more radical abolitionists. It would be a small minority indeed that agrees that the Senate is just perfect as it is.
That being said, attempting to make end runs around our constitution to change what in theory (although perhaps not in practice) is a fundamental pillar of our democracy just to fulfill a long-promised ideological goal is a troubling concept to say the least.
Fundamentally, a constitution is a contract between elected and electorate, enshrining rules and laws which are meant to be sacrosanct and violated only by the greatest of peril and fraught with personal or social consequences. They are an iron-clad agreement, and they are not subject to change only at the whim of a mere government. According to one of the most inviolable principles of democracy — be it in any form — in order to change a contract with the people, you have to ask their consent first. That is what amendments are, so famously quoted and debated by our democratic cousins in the U.S. And just because our constitution is only just shy of its 33rd birthday, doesn’t make what it contains any less valuable to the people of Canada.
Setting a precedent where a legislative body or government can alter or abolish one of the primary foundational elements of its own structure without consenting the people first is a road we don’t want to go down as a democracy. In a very real sense, the Senate question that was being asked by the Harper Conservatives — can we reform or abolish the Senate without a constitutional amendment or referendum — is no different than asking if the House of Commons could abolish democratic elections without asking the people first.
Once we take a step in that direction, nothing holds safe any longer. Trudeau’s draconian use of the War Measures Act domestically during the October Crisis of 1970 shocked and appalled many Canadians at the time. But a temporary suspension of civil liberties is nothing in the face of a government that can potentially create and dispense with whatever laws it chooses to follow to suit its own purpose, and when a constitution becomes nothing but a paper promise to be trampled upon by legislators blind to anything but preserving their own power and privilege.
Some people find it to be laughable to make comparisons between the modern decay of democratic rights and freedoms and the precedents of the past. Others point to the fall of the Roman Republic and the rise of the Roman Empire as proof positive that democracies are destined for failure and that dignity, prosperity and power can only be preserved in the person of one man. This theory tends to forget the illusory truth that the Roman Empire eventually became corrupt, decadent and resistant to change to such a degree that the barbarian hordes that eventually destroyed one of the greatest civilizations in history brushed it aside like so many flies. Sic transit gloria mundi: “Thus passes the glory of the world.”
It is a lesson that we should all learn, and learn it well. The Romans looked upon the fall of their empire as the very end of civilization, but they also viewed themselves as invincible by virtue of their embellished past — they chose to believe there would be no end, to their own peril.
When we look at our own system, we also choose to believe that our laws and freedoms are sacrosanct and immune from change.
However, they soon won’t be if the dignity and legal power of our constitution isn’t preserved and enforced when threatened by federal governments that would like to change things in service of their own ends.
Despite being a judiciary of appointees selected by an elected member of government, the Supreme Court of Canada — to their immeasurable credit — chose to make a legal decision unswayed by political ideologies. It was not for them to consider that Canada’s constitutional amending formula (consent of seven of 10 province and 50 per cent of the electorate) has long been regarded as unservicable, or that those legal experts who originally drafted the document badly miscalculated the sense of brotherhood that exists between regions and provinces and their varying views on controversial issues.
Our judiciary — represented collectively in our Supreme Court — occupies an interesting position in our democracy by virtue of our constitutional amendment issues. It is a body whose power is enhanced as a final word on many different issues, both constitutional or otherwise.
When it renders a decision on an issue, federal governments are typically loath to take it one step further to a referendum, as was witnessed by the response from Stephen Harper to the decision, confirming “Senate reform and abolition are off the table.”
The failure of the Meech Lake and Charlottetown accords taught successive federal governments that a hands-off approach to constitutional issues was prudent when considering future elections.
Since that time, our Supreme Court has continued to morph into a de-facto body for constitutional and legal change, largely through no desire of its own.
It is perhaps unfortunate that the Supreme Court’s decision to uphold the supremacy of our constitution seemingly torpedoes a movement to reform the Senate, an institution badly in need of a significant overhaul.
On the other hand, if our constitutional amending formula is so badly in need of an overhaul, perhaps the Conservatives should have started there instead of grinding forward for more than a decade at a goal that appears to have been a long shot from the start.
Still, a platform promise of “changing our amending formula” isn’t exactly one destined to secure the overwhelming support of the Canadian electorate.
And the concept of putting the cart before the horse is hardly a stranger these days to the political minefield of Parliament Hill.
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