Yesterday, the Liberal government announced that they were moving forward with their plan to create a five member independent advisory panel to provide recommendations for future appointments to the Senate. As I understand it, the advisory panel will be comprised of three “federal” members and two ad hoc members from the province or territory with one or more vacancies to fill. The advisory panel will consider potential candidates and provide non-binding recommendations to the Prime Minister who in turn will recommend appointments to the Governor General. The panel will be charged with ensuring that the potential candidates are representative of men and women and the diversity of Canada, and that the candidates understand and appreciate the role that the Senate is to play in Canada’s Parliament. Within hours, British Columbia’s premier Christy Clark already indicated that these reforms are insufficient and that British Columbia will not participate, saying that the Senate has never represented British Columbia adequately.
First, do I think that these reforms are “constitutional”? Yes, I do. I am of the opinion that the reforms do not constitute amendments to the essential character and constitutional role of the Senate, namely, that of an appointed legislative body of second sober thought. Indeed, these proposed reforms taken on their own will actually reinforce and support the original role intended for the Senate by the drafters of the original British North America Act of 1867 (now named the Constitution Act, 1867). The process of removing the partisan qualities of Senate appointments will help to bring the Senate back to its original role of a legislative chamber of second sober thought, providing careful consideration of proposed legislative instruments. It would act as a means of ensuring proper crafting of bills. It could, if necessary (and this should only ever happen rarely and exceptionally), reject products that constitute partisan excesses of the House of Commons. These are all roles that will be enhanced by the proposed reforms and have been expressly acknowledged by the Supreme Court of Canada as being the proper constitutional roles for the Senate. In my opinion, no formal constitutional amendment is needed for these reforms.
Second, do I think that these reforms are sufficient? No, I do not. As a British Columbian, I understand Premier Christy Clark’s reaction to the reforms. If this is all that is planned for the Senate, then British Columbia will continue to be the most under-represented province at the federal level. Historic circumstances give provinces such as Nova Scotia and New Brunswick 1o senators each, and Ontario and Quebec 24 senators each, yet British Columbia arguably a region unto its own, 6 senators. One of the other roles of the Senate is to reflect Canada’s regional diversity – and I would add the word “adequately”. For these reforms, the new federal government must engage in the much feared federal/provincial/territorial (and I would add “/First Nation”) constitutional negotiations. Only by committing to these sorts of discussions will the other reforms as currently proposed by the Liberals ultimately be legitimized and supported by the constitutional participants to our federation. If such negotiations were to be proposed by the federal government, the Premier of British Columbia would be hard pressed not to participate in the advisory panel reforms announced yesterday.