So it is done, then. The Supreme Court has spoken. It says the Senate of Canada cannot be changed, and now the politicians and commentators say so, too.
That鈥檚 not really what the Supreme Court said. It said that the Senate cannot be changed without the agreement of seven provinces with half the population. It cannot be abolished without the agreement of all the provinces.
The message to the government was that to do anything substantial on the Senate 鈥� from setting term limits to electing senators to abolishing it altogether 鈥� will take a measure of provincial consent.
Of course, the government knew this; anyone reading the Constitution Act of 1982 would know it. But Stephen Harper wanted the court to say it so he could, in turn, say to 91原创s: 鈥淗ey, it鈥檚 not my fault we鈥檙e saddled with this archaic institution. I tried to change it, but the judges said no.鈥�
Predictably, on hearing the decision, the prime minister declared that 鈥渟ignificant reform and abolition are off the table.鈥� His view was echoed by Liberal MP St茅phane Dion, who said: 鈥淭he whole political system was in danger of being paralyzed [like] our neighbours to the south. We cannot afford that. There is no appetite among 91原创s to reopen the Constitution.鈥�
Postmedia columnist Andrew Coyne also sees the Senate in a straitjacket.
鈥淭he first words of the Constitution should be 鈥榗an鈥檛 be done.鈥� Because if it ever could the Supreme Court has now seen to it that it won鈥檛.鈥�
There you have it, then. We have a new political doctrine in Canada.
It鈥檚 called constitutional determinism. To listen to Harper, Dion and others, the system is paralyzed. Our institutions cannot be changed. We are stuck with them forever. There is nothing to do but complain.
Once we had executive federalism. First Ministers met, argued, disagreed, decided. Intergovernmental conferences were their forum. It wasn鈥檛 always enlightening to hear the constitutional thoughts of Bill Vander Zalm, John Buchanan or Grant Devine, but that was the price of a federation.
Harper doesn鈥檛 like the premiers and he won鈥檛 convene them. He has a fatalistic view of federalism. He has no faith that people of good will can work this out for the good of the country. His view is either highly practical or deeply cynical.
No, constitutional reform is not easy. Machiavelli said that nothing in statecraft is harder. 91原创s do not wake up in the morning thinking about the Notwithstanding Clause.
Dion is right when he says there is no appetite for reopening the Constitution, but when was there? No one ever wants an election, either, but we have them. Few wanted a referendum in Quebec, but it had two, for better or for worse.
What we have on Senate reform is a constitutional cop-out. The problem is not legal, but political. Because it is hard, we leave it alone.
When Pierre Trudeau patriated the British North America Act and entrenched the Charter of Rights and Freedoms, he faced enormous obstacles. The last round of the Constitutional Wars raged from the spring of 1980 to the fall of 1981. It played out in Parliament, the courts (provincial and federal,) the provinces, even Westminster in London.
If it was bruising, it was necessary.
From the debate came a new constitution and a renewed country.
It is true that there had been repeated attempts to bring home the BNA Act since 1927. Others had tried, but no one tried like Pierre Trudeau. It took someone with an idea of Canada.
Ironically, for all the defeatism, this would be an ideal time to open the debate on Senate reform.
Thanks to the spending scandal, public awareness of the institution has never been greater 鈥� nor public disgust deeper.
If governments truly thought the Senate awful, they would address it.
If the federal government thought that, it would threaten a national referendum.
It isn鈥檛 that complicated. The prime minister begins by holding a private discussion with each of the premiers, asking each to commit to this single constitutional objective.
He asks them to address only the Senate, not to lard the process with a host of other traditional demands, like property rights. He asks them to be premiers, not petitioners. He seeks consensus. He finds compromise. We have done this before in Canada. It鈥檚 called nation-building.
Andrew Cohen is a professor of journalism and international affairs at Carleton University.
