Speaker's Corner: Appointment of elected senator moves with tide of history

Alberta’s Betty Unger made history recently when she received a call from the prime minister appointing her to the Senate.

The appointment shows how things have changed during the past century. This time around, the challenge to Canada’s constitutional system comes not because our newest senator is a woman but because the voters elected her.

An Alberta-wide ballot in 2004 led to Unger’s selection as a senator-in-waiting up until now. Her appointment makes her, along with fellow Albertan Bert Brown, the second current member elected to the Senate. It represents one more incremental step in Prime Minister Stephen Harper’s Senate reforms.

During the past year, Harper’s proposals have been subject to two different constitutional objections: one from the official Opposition and the other from the province of Quebec.

Last spring, Jack Layton announced that the NDP supports putting the Senate’s very existence to a national referendum. At the same time, Quebec’s former intergovernmental affairs minister Pierre Moreau proclaimed that Harper’s reforms require a formal constitutional amendment.

Both objections cast themselves as viable legal alternatives to the Conservatives’ incremental and unilateral reforms.

The NDP invokes grassroots democracy as the ultimate source of authority, while Quebec makes a point of adhering strictly to the formal amending process. From a constitutional law point of view, however, both objections are misguided.

For all of its posture of correctness, Quebec appears to ignore one of Canada’s most renowned doctrines of constitutional interpretation. And for all of its populist rhetoric, the NDP appears never to have read the Constitution at all.

The NDP’s resort to direct democracy will not legally fly. In 1916, the Manitoba legislature attempted to devolve governmental powers directly to the people by using a referendum process instead of legislation for enacting bills.

The province’s highest court struck the move down. In the process, it explained that a power given by the Constitution to one body cannot be delegated to another, including to the population at large.

Moreover, the Supreme Court of Canada has specifically disqualified the NDP’s position. The court, responding in 1980 to former prime minister Pierre Trudeau’s proposal to replace the Senate with a new house of the federation, stated that to outright abolish the upper chamber would need proper constitutional enactment. A referendum will not do the trick.

To formally amend the Constitution today would take a political miracle as it would require seven provincial legislatures, including Ontario and Quebec, and the federal Parliament to all vote in favour.

This difficulty, of course, is the very source of its attraction to the government of Quebec. What better way is there to block all change than to insist on the most unattainable method of achieving it?

Quebec’s position, however, raises significant issues about constitutional reform. How does a country’s foundational law adapt in the face of an amending formula designed to thwart any movement forward?

As Unger’s appointment reminds us, the question of electing senators is remarkably close to Canada’s most famous constitutional case. It asks whether the Constitution is a rigid document or a “living tree.” Is it incapable of change except via formal amendment or is it able to adapt to the times through reinterpretation?

In 1929, the courts addressed the meaning of that part of the British North America Act that authorizes the appointment of “qualified persons to the Senate.” Until then, there had been an assumption that the word “persons” referred to men only.

After all, the Confederation debates of the mid-19th century had taken place not long after English legal scholar William Blackstone notoriously proclaimed that the husband and wife are one person in law: the husband.

When the Persons Case finally made its way to the Privy Council, it encountered a legal system that had greatly changed in the century and a half since Blackstone’s famous comment and the 60 years since Confederation.

Lord John Sankey pronounced his arboreal metaphor and confirmed the appointment of women by explaining that the Constitution, although rooted in its text, must be a flexible instrument that bends with the winds of change.

In the result, the authority to appoint a woman as Senator was pronounced by means of an updated interpretation; no amendment required. The living tree and its notion of organic, principled change became the interpretive watchword and has remained the most enduring expression of Canadian constitutionalism.

The government of Quebec and other critics may insist that a formal amendment is necessary for any change to appointments to the Senate, but the courts know better.

If a “person” can go from meaning a man in 1867 to signifying a man or woman in 1929, it can likewise go from meaning an appointed person at Confederation to an elected individual in 2012.
Unger, then, is on the side of history.

Ed Morgan is a professor of constitutional law at the University of Toronto.

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