(This article originally appeared in The Huffington Post Canada)
The Supreme Court of Canada’s recent decision in Reference Re Senate Reform has irked a great many Canadians who had hoped that our highest court would bless democratic reform in the Red Chamber. On virtually every question before it — from term limits to democratizing the selection process — the Supreme Court said no.
Canadians are wont to judge court decisions by how well the results coincide with our preferences; but this remains a fundamentally misguided approach. The Supreme Court was not asked to decide whether Senate reform was a good thing; it was asked whether the specific reforms proposed by the Government were constitutional. In this respect, there can be no doubt that the Court’s decision was the correct one. A majority of Canadians may be in favour of democratic reform, but that does not change the ordinary meaning of those provisions in the Constitution which deal with the composition of the Senate and the way in which that composition may be altered. The Supreme Court’s decision stands as a model of proper textual interpretation, and it also reminds us that our democracy runs much deeper than the popular election of senators. It is first and foremost founded upon an enduring constitution and the rule of law.
The Supreme Court concluded what the text of the Constitution plainly requires: that legislative reform will require the agreement of the House of Commons, the Senate itself, and the legislatures of at least seven provinces whose aggregate populations represent at least half of the total population of all provinces. This is a tough standard to meet when a proposal has universal approval. Where there is significant disagreement even among those advocating reform, as is the case with the Senate, a constitutional amendment becomes all but impossible.
There is, thankfully, another way. Our constitutional structure allows for the development of unwritten customs and conventions so long as they can peacefully coexist with the written text of the Constitution. The most notable example is that of the prime minister, who is mentioned nowhere in the text of the Constitution Act, 1867, which until 1982 was Canada’s primary constitutional document (and remains one of two primary constitutional documents, the other being the Constitution Act, 1982). The Constitution Act, 1867 vests all executive power in the Queen, as represented in Canada by the Governor General. As a matter of convention, however, the prime minister has come to wield a great deal of executive power.
The role of the prime minister has developed organically over time and so too could our Senate. Alberta has already instituted a process of electing nominees who are then recommended by the province for Senate appointment. These elections are inherently non-binding, since there is no obligation on the prime minister (or the governor general) to accept the appointment. On the other hand, the elections are entirely in keeping with the text of the Constitution. While the Constitution forbids Parliament to alter the process of selection, there is nothing in the Constitution that would preclude a province from altering its own process of recommendation. By the same token, the prime minister and governor general would not be constitutionally prohibited from choosing an individual simply because they have been rubber stamped by the province.
The appointment of elected nominees would develop strictly as a matter of convention, not federal legislation. The governor general would still have the sole legal discretion to appoint whomever he or she saw fit, and the prime minister would not be compelled by legislation to recommend the elected nominees. But the outcome is likely to be the same. As the demand for Senate reform becomes more pronounced, more provinces will begin electing Senate nominees, and the political pressure to accept those nominees at the federal level will increasingly mount. In all probability, the prime minister/governor general will, more often than not, choose to appoint only those who have been elected as nominees. What prime minister, after all, would want to run on a record of continually flouting the democratic will of the provinces?
This new convention would have the benefit of bringing greater legitimacy to the Senate while maintaining a clear buffer between the senators and the people, in accordance with our Constitution. The governor general could still refuse to appoint someone whose appointment would not be in the national interest — for example, a Quebec separatist elected by a PQ-dominated legislature. But for the most part, the people would have a practical say in Senate appointments.
The senators themselves could also aid in this democratization process by self-imposing term limits. Once again, this would come to pass over time as a matter of convention, not legislation. The senators would legally be appointed to age 75, but as a more democratic culture took hold, they would face pressure to step down after X number of years. Some senators would probably still remain on board until retirement, but they would find themselves part of an increasingly marginalized minority.
Canada’s constitutional order is, by its very nature, averse to swift and sweeping change. Legislation that contradicts or frustrates a constitutional provision will invariably be struck down. By contrast, customs and conventions, which have developed over time based on experimentation and our shared experience, can supplement the written word and change the reality on the ground. This is perhaps a peculiar facet of our constitutional order, but one that we should not discount, especially where the Senate is concerned.