Three Cheers For the Supreme Court

Those who sit as judges in Her Majesty’s courts perform a role that calls not only for an extensive knowledge of the law but for the virtues of justice and prudence and above all else for wisdom. The higher the court and the more final its decision the more vital it is that that its member judges possess these qualities. It is of the utmost importance, therefore, that the Chief Justice of Canada and the eight Puisne Judges who with the Chief Justice make up the highest court in the land, be models of Solomonic wisdom.

I have not always been impressed by the decisions that our courts have issued. Indeed, decision after decision to give the perpetrators of serious crimes a slap on the wrist while allowing frivolous and expensive lawsuits by people whose feelings have been hurt or, even worse, who wish to use the courts to harass their ideological opponents, have often left the impression that the path to appointment to the bench starts in the monkey cage at the zoo.

This was not the case with the ruling the Supreme Court handed the Prime Minister’s Office last Friday. Asked to review the constitutionality of Prime Minister Harper’s proposals for reforming the Senate, the Supreme Court told him that any such reforms would require the consent of the provinces. To make major reforms he would need the consent of a majority of the promises, to abolish it outright would require unanimous consent.

In issuing this ruling, the Supreme Court did its job and did it superbly. It did not create new law by fiat, but reminded the Prime Minister – and the Opposition Leader who has been beating drums for Senate abolition – of what they should have already known, namely, that Canada has a constitution, with a formula for amendment, and that there are no shortcuts to amendment because changing the constitution is a far more serious process than changing the law and is not something to be done on the quick. This is something that Stephen Harper, of all people, should have known because he is leader of the Conservative Party, and respect for the constitution and an unwillingness to allow it to be changed at a whim is a fundamental Tory principle.

It is not a question of whether Senate reform is in itself desirable or whether or not the specific reforms proposed by Prime Minister Harper are good or bad. That the Senate is in need of serious reform has been obvious for decades. The need is there but it is not urgent, despite the recent media hype over how certain Senators have abused their expense accounts. The Prime Minister’s proposals were for Senators to be elected to office and for term limits to be set for them. While I can understand why he thinks these are good ideas they are not the kind of reforms I would like to see. I think that the Senate should remain an appointed body but that control over who the Governor General appoints should be removed from the Prime Minister’s Office and put in the hands of an appointment committee composed of representatives of the provincial governments. I would like to see the property ownership requirements for Senators be updated to reflect the inflation that has taken place since 1867 and their salaries either eliminated or reduced to an honorarium. Rather than impose a term limit on Senators, I would prefer to see the minimum age for Senate appointment raised to about fifty. I think these reforms are more appropriate for Canada than the Triple-E model that the Reform Party favoured but I would not want to see them brought in without provincial consent either. The constitutional amendment formula must be respected because to fail to respect that process is to fail to respect the constitution itself.

The proposals for Senate reform that I just suggested differ from the Triple-E model that the Reform Party advocated and which is the basis of Prime Minister Harper’s proposals in that they are not based upon the assumption that making the Senate better means making it more democratic. The equation of good government with democracy is a very modern and very erroneous idea which lies beneath both the desire for an elected Senate on the part of the supposedly right-wing support base of the old Reform Party and the desire to abolish the Senate on the part of the left-wing NDP. The reforms that I would prefer to see are based upon respect for Canada’s parliamentary monarchy form of government and the tradition from which we obtained that form of government. They take into consideration both the current problems with the Senate, the role the Senate was intended by the Fathers of Confederation to play in government, and offer suggestions as to how to get fix as much as is possible the former and help the Senate to perform the latter that are consistent with the history and tradition of our constitution.

The problem with the Senate is that it is used by whichever party happens to be in power in the lower House as a means of rewarding people who have served the party by providing them with a cushy position that comes with a large salary and fat expense account and a minimal amount of responsibility. When Canada’s Fathers established the Senate, modifying the House of Lords in the British parliamentary model to fit the Canadian situation, they intended for it to serve as a sort of brake on those in power in the lower House. The Senate would review the legislation they passed and provide a “sober second thought” so that the party which commanded a majority in the lower House could not simply rush through legislation that might ultimately be to the detriment of the country. Needless to say, the Senate cannot very well perform this function if it is constantly being stacked by the government to which it is supposed to act as a brake.

Removing control of appointments to the Senate from the Prime Minister’s Office would prevent the Prime Minister from being able to stack the Senate and use it as a rubber stamp on whatever he wants thus enabling it to serve its original function better. Updating the property requirements for Senators and removing the perks of the position would help insure that Senate seats are filled by public minded and spirited people rather than those hoping to grow fat off the public purse. Raising the minimum age for Senators would help make sure that the Senate does provide the needed “sober second thought” because wisdom, contrary to the folly of the youth-worshipping zeitgeist, comes with age.

All of these reforms would be superior to just making the Senate more democratic. The ancients recognized that just as there are good kings and bad kings, and an elite may be either a wise and public spirited aristocracy or an arrogant and selfish oligarchy, so democracy can be both good and bad as well. Therefore, they reasoned, the best constitutional arrangement would include a king, an aristocracy, and a form of democracy so that each of these elements of government would check the tendency towards the bad in the others and bring out the tendency towards the good. This is, of course, what we have in the parliamentary monarchy system that we inherited and adapted from Britain. The desire to democratize the non-democratic elements misses the point altogether and replaces the wisdom of the ancients with the folly of the modern.

Reforms that respect the constitution and the tradition on which it is based are democratic in another sense of the word, the best sense of the word, that of which G. K. Chesterton wrote when he said that he wanted a democracy that does not exclude members of a society from the franchise on the grounds that they are no longer among the living. It is tradition to which he was referring, the only kind of democracy that can give a vote to all members of a society, the dead and the unborn as well as the living. In this sense of the word democracy, the will of the people is not to be equated with whatever the majority of the populace can be persuaded to say they want at any given moment. This concept of democracy suits our constitution well for in it, the task of representing the people as an organic whole, including past and future generations as well as the present, is assigned to an office that is above elections and the political process, the office of the Queen.

The Supreme Court, by insisting that any government wishing to make significant changes to the structure of the Senate must follow the amendment procedure in the constitution, has declared that the government must respect the constitution and the tradition upon which it is built. Critics of their decision may complain that the Court is standing in the way of the will of the people and of democratic reform, but it is in keeping with the Chestertonian “democracy of the dead” which is the best form of democracy and perhaps the only one truly worthy of honour.

So three cheers and kudos to the Supreme Court. This time, at least, they did their job well.