Why the NDP is Right to Want to Abolish the Senate

Well, isn't this exactly what Mulcair, and every previous NDP leader, has always promised? I seem to recall pretty clear statements that the NDP, if it ever formed government, would not appoint senators. Why hasn't everyone been in a snit about that longstanding promise?

Michael Moriarity wrote:

Well, isn't this exactly what Mulcair, and every previous NDP leader, has always promised? I seem to recall pretty clear statements that the NDP, if it ever formed government, would not appoint senators. Why hasn't everyone been in a snit about that longstanding promise?

Very astute, Michael, that was my thought exactly. And that's also why I asked about any expert opinions regarding the "constitutionality" of a PM not recommending more Senators (because s/he doesn't actually get to appoint them, not under our Constitution).

if no parties appoint any senate for the next 50 years, it will still be conservative controlled isnt it? until all of them die out.

It seems that senate rules require a quorum of 15:

Senate Rules wrote:

3-7. (1) A quorum of 15 Senators, including the Speaker, is required for the Senate to sit and conduct business.

REFERENCE
Constitution Act, 1867, section 35

Also, there is a mandatory retirement age of 75. So, from the ages of the current senators, you could calculate how long it would be until fewer than 15 senators remain, at which point, the senate would no longer be able to "sit and conduct business".

pookie wrote:

  Harper will not defy a court declaration that he cannot refuse to appoint anyone.

Ok, that's what I wanted to confirm - that the Court would consider it has jurisdiction to make a declaration/order aimed at the PM, or Cabinet, or Privy Council (sorry if my terms are wrong), even though the Constitution says "G-G". And just for clarity... could the Court make such a declaration/order directly targeting the G-G?

bagkitty wrote:

Of course one has to ask who would have the standing to bring such a question before the Supreme Court.

Good question. But I would have thought that any citizen could go to some court (maybe federal, don't know), and say, for example, section 4(1):

Quote:

No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

Surely if that happened, you or I could go to court and ask for a declaration/order? If we had to wait for some government to take action, wouldn't that kind of make Constitutions meaningless (not saying they aren't, but still)?

Likewise with a failure by government to appoint Senators. It's not just some private matter infringing on provinces' rights.

bagkitty wrote:

Of course one has to ask who would have the standing to bring such a question before the Supreme Court. Possibly Alberta, with its "pseudo-elected" list of potential Senators, but, unless the ability of the Senate to meet its quorum requirements was seriously in jeopardy, I am hard pressed to think of any other body that would have standing other than the "government of the day".

The provinces can put any question to their courts of appeal on a reference.  That is then appealed to the SCC as a new reference. If they want to launch an actual constitutional challenge, a province like PEI or Manitoba which is already quite below its alloted numbers could launch a challenge that the PM's open refusal now violates their constitutional entitlements.

To answer Unionist's question above, I am convinced that the most that a Court would do is issue a declaration.  It would be extremely unlikely for the Court to issue an actual order (called mandamus) to the PM that he must provide advice to the GG.  It MIGHT also issue an independent opinion on the GG's ability to act in the absence of advice (basically giving him a green light to do so), but again I would be shocked if it would issue an order to him.

Because the most one can realistically hope for is a declaration, which is available in both references and cases, it doesn't matter whether the SCC ultimately considers this as a reference from a provincial court of appeal reference, or as an appeal from an actual case.  

socialdemocraticmiddle wrote:

A fundamental pillar of our government enshrined in our legal system, but antithetical to our democracy.

Nope.  The Senate is a fundamental and protected part of Parliament which is the chief vehicle for democratic deliberation at the federal level.

You may not like it, but that is the law.

One is of course always entitled to try to change the law, or in this case, the constitution.

What one may not do, is defy it.

Unionist wrote:

bagkitty wrote:

Of course one has to ask who would have the standing to bring such a question before the Supreme Court.

Good question. But I would have thought that any citizen could go to some court (maybe federal, don't know), and say, for example, section 4(1):

Quote:

No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

Surely if that happened, you or I could go to court and ask for a declaration/order? If we had to wait for some government to take action, wouldn't that kind of make Constitutions meaningless (not saying they aren't, but still)?

Likewise with a failure by government to appoint Senators. It's not just some private matter infringing on provinces' rights.

Unionist, to be honest I don't see the refusal to appoint Senators as straightforwardly implicating the maximum lapse for Parliament in section 4.  But there are plenty of other avenues for this to get before a court.  I mean, a challenge is already underway in Fed Ct, initiated by a Vcvr lawyer.  I am sure the feds are arguing he lacks standing, but I would be surprised if the court bought that.  Of course, his challenge may be overtaken by a reference in the interim - as happened in Rocco Galati's original challenge to the appointment of Marc Nadon to the Supreme Court.

bagkitty wrote:

Of course one has to ask who would have the standing to bring such a question before the Supreme Court. Possibly Alberta, with its "pseudo-elected" list of potential Senators, but, unless the ability of the Senate to meet its quorum requirements was seriously in jeopardy, I am hard pressed to think of any other body that would have standing other than the "government of the day".

Vancouver lawyer Aniz Alani has already launched a case at the federal court.

Feds lose bid to dismiss court case over PM's refusal to fill Senate vacancies; The Canadian Press; 21 May 2015.

Quote:

The federal government has lost a bid to thwart a court challenge aimed at compelling Prime Minister Stephen Harper to fill Senate vacancies.

Federal Court Justice Sean Harrington rejected Thursday the government’s motion to have the case dismissed.

The case was launched by Vancouver lawyer Aniz Alani, who maintains the unfilled vacancies are unconstitutional, leaving provinces under-represented and the Senate less able to carry out its constitutional role as the chamber of sober second thought.

He is asking the court to declare that Senate vacancies must be filled within a reasonable time.

Harper has not appointed a senator since March 2013 — when the scandal over improper expenses claimed by some senators began to engulf his government.

There are currently 20 vacancies in the 105-seat, unelected upper house.

Harrington has not yet heard arguments or ruled on the substance of Alani’s challenge. But in rejecting the government’s bid to have it tossed, he suggested there is an obligation to appoint senators, no matter how distasteful it might be in the midst of scandal.

“Without a doubt there is a political aspect to Senate appointments,” Harrington said.

“From time to time the Senate, or some senators, may be a source of embarrassment to the government, to the House of Commons as a whole, and indeed, to many Canadians.

“However, I know of no law which provides that one may not do what one is otherwise obliged to do simply because it would be embarrassing.”

Harrington pointed out that the Supreme Court of Canada has “made it perfectly clear” that significantly changing the Senate or abolishing it would require a formal constitutional amendment and cannot be accomplished by stealth.

mark_alfred wrote:

He's attempting to shift responsibility for the Senate from himself to the provinces.

Considering that he has never attempted to negotiate with the provinces about the future of the Senate, it seems unreasonable that it is the provinces fault for the lack of progress on dealing with the issue.

I think Harper is just trying to get some kind of defensable policy in place on the Senate that he can run on during the current election. For Harper this is all about surviving the next 3 months. If he remains P.M. after Oct. 19, he will happily deal with the fallout later when the provinces and Supreme Court respond to Harper's unconstitutional initiative.

JKR wrote:

Michael Moriarity wrote:

It seems that senate rules require a quorum of 15:

Senate Rules wrote:

3-7. (1) A quorum of 15 Senators, including the Speaker, is required for the Senate to sit and conduct business.

REFERENCE
Constitution Act, 1867, section 35

Also, there is a mandatory retirement age of 75. So, from the ages of the current senators, you could calculate how long it would be until fewer than 15 senators remain, at which point, the senate would no longer be able to "sit and conduct business".

If no current Senator resigns or dies before they are 75, there will be at least 15 senators in Senate until May 4, 1930.

List of current Canadian Senators

While it is the most obvious I highly doubt bare quorum will be accepted as the sole threshold for whether the Senate can continue to function.

Unionist wrote:

pookie wrote:

Unionist, to be honest I don't see the refusal to appoint Senators as straightforwardly implicating the maximum lapse for Parliament in section 4. 

I mis-spoke. I didn't intend any connection between Section 4 and our current Senate question. I just picked a random article of the Constitution to ask whether a citizen could initiate a court action claiming a breach. In my example, it seems to me that if (for example) the House decided to sit for 7 years, I or you could go to court and get not just a declaration, but even a mandamus to stop them. No? If not, it's a dictatorship, with only a veneer of a Constitution. No big deal, but I'm just curious as to how you would view that.

 

Yes, I think a citizen could definitely launch a direct challenge if section 4 of the Charter were breached.  You'd have to make an argument that were was a personal right involved in the section 4 guarantee, but I don't think that would be terribly difficult.

My point in response to bagkitty's standing question was that (aside from a reference, which is initiated by governments), there are actually two kinds of standing.  The first kind relates more to your question - does the person have an individual right or entitlement that is being breached?  The second is more general: is there a serious question regarding unconstitutional laws or behaviour, and is it appropriate for a particular person to be able to make the argument and get the court to wade in even if her own personal rights aren't involved?  It's up to the courts to decide whether to grant the second kind of standing but the impt thing is that you don't have to show personal harm or impact.  So it's much broader and I think it could easily be used to challenge the PM's latest pronouncement.  I would assume that Aniz Alani is relying on public interest standing in his current challenge - I just haven't had time to read the pleadings. But maybe he's arguing that we all have an individual entitlement to a functioning Senate and on that basis claiming direct standing. It's a technical question that the media would never report on. :)

Here's an additional thought.

Say the Courts issue the declaration.  Sorry, Harper, you can't just refuse to appoint Senators.

As discussed somewhat in this thread, it's unclear exactly WHEN the senate's functioning would be threatened.  Probably not within the next 2 years.

So, say Harper gets weaselly and doesn't openly defy the ruling, but simply doesn't appoint Senators anyway.  After a period of time, I think, (how long is a guess, but maybe a couple of years?)  I think the Court would have no choice but to issue a more direct order.

Now.  Say Mulcair wins the election.  Mulcair has, I believe, said that he ALSO doesn't believe in appointing Senators, but his argument is more "we're in negotiations to abolish so it's simply reasonable not to appoint any."  He's not refusing the way Harper is. (Thankfully).

Well. Constitutional negotations can take a long, looooong time.  

If Mulcair is in office when the SCC declaration (just a declaration, not a direct order) comes down, how long will HE stick to his original position?  Will he be clear about it?  Ie., "I accept the SCC's decision and will give the process another year?"  Because, really, until the constitution is amended, he's got to stick by the old one.  YKWIM?

socialdemocraticmiddle wrote:

I'm not debating whether this is the law. I'm asking if you wanna double down on this being motivated by democratic intentions in the enlightened year of 1867.

The motivation doesn't matter. As the system stands today the Senate serves a purpose in limiting the power of the PMO just as the Constitution does but in a different manner.

Because it is an unelected body it has restrained itself but Harper has illustrated self-restraint and tradition are not enough to safeguard against abuse of power.

Simply not appointing senators won't work because the regions have a right to proportional representation which cannot be maintained if senators are not replaced.

The regions are not bucking for this now because the Senate is unpopular and Harper would do the appointing but a court challenge has already been launched to force the next PM to make appointments.

The Senate is a legal entity established by the contract that brought Canada into existence. Like any other contract it can't be overriden without the consent of the signatories otherwise law becomes meaningless.

This was the comment I made about the Senate.

A fundamental pillar of our government enshrined in our legal system, but antithetical to our democracy.

Pookie took issue with that statement. If I'm mistaken, and pooke ISN'T approving of every clause in the 1867 constitution, then there's no disagreement here, and very little to discuss. Amazing.

I'm grateful other people are here to educate the public. But some of us have already educated and informed ourselves, and the evidence is pretty damning.

JKR wrote:

pookie wrote:

Here's an additional thought.

Say the Courts issue the declaration.  Sorry, Harper, you can't just refuse to appoint Senators.

As discussed somewhat in this thread, it's unclear exactly WHEN the senate's functioning would be threatened.  Probably not within the next 2 years.

So, say Harper gets weaselly and doesn't openly defy the ruling, but simply doesn't appoint Senators anyway.  After a period of time, I think, (how long is a guess, but maybe a couple of years?)  I think the Court would have no choice but to issue a more direct order.

Now.  Say Mulcair wins the election.  Mulcair has, I believe, said that he ALSO doesn't believe in appointing Senators, but his argument is more "we're in negotiations to abolish so it's simply reasonable not to appoint any."  He's not refusing the way Harper is. (Thankfully).

Well. Constitutional negotations can take a long, looooong time.  

If Mulcair is in office when the SCC declaration (just a declaration, not a direct order) comes down, how long will HE stick to his original position?  Will he be clear about it?  Ie., "I accept the SCC's decision and will give the process another year?"  Because, really, until the constitution is amended, he's got to stick by the old one.  YKWIM?

 

I can't think of a specific kind of measure the Supreme Court can use to force a P.M. to appoint Senators. 

If the Court finds that the PM has a general duty to appoint Senators, given that he has now refused to do so, I think it would be within its rights to issue an order.  This would fall under its general remedial powers when faced with unconstitutional action by an Executive actor.  It would be like what happened after the Insite decision, where it found that the Minister of Health had breached the Charter by failing to provide an exemption from the CDSA, and simply ordered him to provide it.

Now, it tends not to like issuing such orders.  But it would certainly within its powers to do so.

The other point in all of this is that I really don't buy that quorum is the only standard that matters.  The Senate is not just a legislative body, but an expression of Cdn federalism.  If a province is continually deprived of its constitutional number of Senators, I'm having difficulty seeing how that doesn't matter, just because the Senate can continue to pass laws for another 15 years.  To put it more dramatically, what if a province no longer has ANY Senators, and the PM continues to refuse?  I just don't see how that is on.

If you want to explain the law, including the viability of different approaches to reform, that's fine. But don't defend the current Senate as democratic. Its blueprint is a relic of the feudal system. It's part of the same reason that the Queen is our head of state. 

Unionist, you have it backwards. I made a comment about the senate being undemocratic. Pookie took issue with my comment. If Pookie actually agrees that the Senate is undemocratic, then she's the one who misinterpreted my comment, and tried to start a debate on something that we all agree on.

Otherwise, there's nothing stopping people from discussing what happens if Harper tries to whittle down the number of senators by leaving them unappointed. I haven't formed my opinion on that.

Thanks for your gracious comments Unionist and I also appreciate the attempt to lower the temp in your last post. 

There are different ways to understand what "democracy" means.

As but one example, there is a 250-year old debate about whether it is ever consistent with "democracy" for courts to overturn legislation.  

The Senate is certainly not consistent with one understanding of democratic legitimacy.  That is not the only understanding that one can have.

I am actually not interested in defending the current Senate.  But I think it is overly simplistic to say "it's not elected so it's BAD!"

That's really all I have to say on the subject.

So while we're at it, let me reiterate my longstanding contention:

The House of Commons is scarcely more "democratic" than the Senate.

Members are elected, yes, but they promptly ignore their electors and obey the dictate of some unelected inner circle elite surrounding the Leader. And they do so irrespective of whatever promises they might have made in order to trick the voters. And there is no democratic recourse against such betrayal - whatsoever - until the next election.

Moreover, Senators are publicly and judicially reviled for sketchy spending practices, while no one demands that the same standards be observed by MPs. Someone explain to me why being elected should insulate you from independent oversight.

The Constitution says the Governor-General appoints Senators, but that's a legal fiction. We shouldn't have legal fictions when it comes to the foundations of democracy.

And anyone who attacks the Senate because all its members are (de facto) chosen by the the sitting PM - should also consider attacking the entire judiciary, which is chosen in more or less the same fashion.

So much to do, and so little time.

The Senate is not easily disposable given the Constitution but it can certainly be completely redefined in most respects (except perhaps geographic composition). There is no requirement that the PM propose Senators either. There is also little resistance to reform -- even if abolition may be hard to do.

I do not think it would be difficult for any PM to organize a significant reform -- including Mulcair -- since he could argue that the Senate is so different that it has been kept only in name. As well Mulcair or any other PM could arrange for temprary Senators as a compromise as long as these were not proposed by him. The Senate does not have to be a significant problem -- even if there is no ability to abolish it.

The PM can have a Federal-Provincial meeting just to determine what is done with the Senate. If Mulcair presides over the absolute removal of the Senate as a plaything of the PM -- he will survive any other back-tracking he may have to do to satisfy those who want some kind of Senate to remain.

There is not a single province that will demand that the Senate be picked by the PM. And nobody will fight tighter spending controls. As well, the role of the Senate can be modified to stop it from being able to stop legislation -- it could be turned into a formal legislative review and advisory body without any powers over the House but with powers to obtain and disclose information to the public and to review policy. In this context the need for partisan camps of Senators would no longer exist. However, all consitutional requirements would ahve been maintained.