NDP, Conservative push to abolish Senate 'blatantly unconstitutional'

NDP Leader Tom Mulcair recently told Peter Mansbridge in an exclusive CBC interview that if his party comes out on top in the October election, he would abolish Canada's scandal-plagued Senate.

• Tom Mulcair's Senate pledge could lead to stalemates and standoffs

Now one political expert says that might be easier said than done. 

Emmett Macfarlane studies institutional change and its relationship with the meaning of the constitution at the University of Waterloo. Macfarlane says there are some red flags when it comes to Mulcair and Conservative leader Stephen Harper's plans for the red chamber, not the least of which is that it is unconstitutional in three different ways. 

Here is a Q & A based on Macfarlane's Thursday chat with host Craig Norris on CBC Kitchener-Waterloo's morning radio program The Morning Edition:

What concerns you about the NDP's plan to just stop appointing Senators?

It's a unique plan because it's unconstitutional in three different ways.- University of Waterloo prof Emmett Macfarlane on NDP Leader Tom Mulcair's plan to abolish the Senate

It's a unique plan because it's unconstitutional in three different ways. The constitutional text actually says that the Governor General shall appoint Senators upon a vacancy and that's a requirement on the Governor General and in practice it means the Prime Minister must make that recommendation. It's also unconstitutional in the sense that it is a strong constitutional convention to fulfil that executive function to make that appointment. Senate vacancies in the past have gone on for some time, even over a year in some cases, but never have we had policy on non-appointment and that would be clearly contrary to convention. Finally, it's unconstitutional to try to suggest that you can let the Senate die on the vine. The Supreme Court said just last year that the federal Parliament, let alone a prime minister cannot unilaterally change the Senate's essential functioning and well before we hit issues of quorum the Senate is going to start having trouble filling committees and performing its role of sober second thought.  

Can the Governor General just act unilaterally and appoint senators, or no? 

That gets tricky. If you read the Constitution Act of 1867 it looks like the governor general is the emperor of Canada. The prime minister is not even mentioned in the original document and so the prime minister's role is itself is often filled by tradition and understanding the British parliamentary tradition. If the governor general were to act unilaterally by himself, that itself would cause a constitutional crisis in that sense. 

Conservative Leader Stephen Harper is proposing a similar plan to abolish the senate. Why do so many parties lean on this technique? 

I think they're tapping into the obvious swell of popular dissent against the Senate in light of the expenses scandal and the Mike Duffy trial and so they've grown frustrated by the rather difficult amending process we have in Canada. So they're being strategic and they're kind of proposing amendments and changes by stealth. The problem is, this is both kind of intellectually dishonest, they're not going to be allowed to abolish the Senate by anything other than getting all 10 provinces onboard, and we're in an unprecedented situation where the sitting Prime Minister and the Leader of the Opposition are both proposing such a blatantly unconstitutional course of action. 

Why do you think they're getting away with it if it's not a viable option? 

Because the average Canadian actually has a life and doesn't spend their time thinking about the amending formula of the constitution.- University of Waterloo professor Emmett Macfarlane 

Because the average Canadian actually has a life and doesn't spend their time thinking about the amending formula of the constitution. [The NDP and Conservatives are] basically taking advantage of people's very understandable ignorance about how this is all supposed to play out. 

So then how do we make changes to how the Senate works? 

I think that if you want to proceed with abolishing the Senate you have to engage in the complex trials of inter-governmental negotiation. The problem for [the NDP and the Conservatives] is that I don't think there's a strong appetite for that and are provinces like Quebec or Prince Edward Island going to willingly vote essentially to get rid of the Senate without asking for anything in return and who's going to open that Pandora's box? I don't like that, I don't like the idea that we talk about opening the constitution like it's a big problem. We should be mature and be able to have an up and down vote on singular issues, but that's not the reality. So I think if abolition is too difficult to achieve then you have to look at more modest ways to improve it, like changes to the appointments process.  

What about a triple-e senate, (elected, equal and effective)? 

That's another option but that itself would require substantial consent from the provinces. You'd need at least seven provinces on board and we might end up in the same kind of negotiating situation.

What's the challenge with negotiating with the provinces? 

We do have some provinces on board with change, the government of Saskatchewan, as an example, is open to abolition and in fact has it as a position. Other provinces, traditionally Alberta, would probably like to see an elected Senate. The problem is that you can't do both and you have to either get consensus or unanimity for either one of these options and that's a very difficult thing. The other thing is, Quebec's longstanding position is that if we're going to make major constitutional changes, some of them better include more autonomy and power for Quebec or recognition of Quebec's distinct society. 

Why can't we open the constitution on a single issue, like senate reform? 

Partly it's our history with this stuff. We haven't had a very great record in dealing with this. The one big success in 1982 brought us the Charter of Rights, but it arguably led to the near breakup of the country in 1995 because we generated this myth that Quebec was betrayed in 1982. We spent all of the 80s and early 90s trying to get new constitutional reform and they all failed, including the Charlottetown Accord referendum, and it actually causes strain on the federation to engage in these processes and it's actually regarded by some people as unfortunate. 

What will it take for us to see real change in the way the Senate functions in Canada? 

The same thing it'll take to see a lot of positive change, a little bit of maturity among our political leaders and I'm not too optimistic about that.