The “new” Senate takes shape – achieving parliamentary reform without constitutional amendment

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On October 27, 2016, the Prime Minister named nine new senators to the Senate, with 12 more to be appointed in the coming days. These new “independent, non-partisan” senators along with their future fellow colleagues will soon comprise the largest “bloc” of senators in the Upper House, surpassing the Conservative senators. What Prime Minister Trudeau has done by moving to a non-partisan, merit-based appointment process is major parliamentary reform, all without the need for any constitutional amendment whatsoever.

The principal reason why no constitutional amendment is required is that the Prime Minister is, probably for the first time since Confederation, returning the Upper House to its original constitutional role, namely, truly an appointed chamber for second, sober thought free from the hurly-burly of partisan politics. Over time, as the Senate becomes peopled with a full contingent of non-partisan independents, the previous partisan character of the upper chamber will vanish and real, studied and thoughtful reconsideration of legislation should become the order of the day.

Under the previous Conservative government, the Senate was viewed as simply an unfortunate constitutional necessity whose role was to rubberstamp any legislative initiative coming from the House of Commons, no matter how ill-conceived, poorly drafted or unconstitutional they might be. Arguably, the approach that was used by the Conservatives (and one might even say most previous administrations) ran counter to the Senate’s true constitutional purposes and roles.

While the Senate may now become more effective insofar as its role as a chamber of second sober thought under the Liberal Senate appointment process, it will remain ineffective in relation to the relative representation of the regions and a guaranteed representation of the third order of government in Canada, namely, that of the indigenous peoples.

For this sort of parliamentary reform, real constitutional amendment will be required. But perhaps, we should be happy for the time being with the baby steps that are being achieved. Let’s see how this “new” Senate works, returning to its “old” and original role, and then see what we can do about modernizing it to represent better and more effectively the current and future regionality of Canada and its First Nations.

I remain

Constitutionally yours,

Arthur Grant

PS This weekend, I attended the funeral of a dear friend and constitutional scholar, Alain Lafontaine. A leading aboriginal law specialist for the Department of Justice, he left us tragically on September 25, 2016 in a plane crash in northern Quebec. I will miss him and my heart goes out to his spouse, children, family, friends and colleagues. He was a wonderful friend. Merci Alain. Adieu.

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