RYU: A new and more realistic proposal for Senate ‘harm-reduction’

It has been the elephant in parliament for most of Canada’s history. Canada inherited its upper chamber from the mother country, whose own upper chamber bears the more transparent name “House of Lords”.

Micah Ryu Montreal QC

It has been the elephant in parliament for most of Canada’s history. Canada inherited its upper chamber from the mother country, whose own upper chamber bears the more transparent name “House of Lords”.

Our “Lords” are, of course, appointed by the government through the Governor General. Reforms to this chamber go all the way back to Confederation, and arguably, beyond.

Senate reform has been a thorn in the side of Canadian political history. Out of countless proposals, no major reforms have been accomplished, leaving us with an institution that at a glance looks puzzlingly not democratic, not Canadian, and not for the 21st century.

In 2015, the Liberals made matters worse by attempting to give the senate (and appointments thereto) the appearance of political independence, which arguably strengthens its mandate to interfere with legislation. Since then, Trudeau has had his own agenda affected by a senate that now feels more justified in pushing back against the elected House.

2014 Reference

It was something high on the mind of former Prime Minister Stephen Harper, who sent six reference questions to the Supreme Court to see if he could make the Senate a little bit ‘less bad’ without having to enter the nuclear battlefield of Constitutional negotiations with the provinces.

The Supreme Court sent their responses, signed unanimously by eight of nine judges in a decision called Reference re Senate Reform (2014 SCC 32).

The government had proposed term limits of eight years or less, nine years, ten years or more, or the duration of two or three parliaments. It proposed that these terms could be renewable and only apply to senators appointed after 2008. It was found unconstitutional.

The government proposed to “enact legislation that provides a means of consulting the population of each province and territory as to its preferences for potential nominees for appointment to the Senate”. Alberta holds a technically non-binding election for its own senators. It was also found unconstitutional.

The government asked whether provinces could create their own legislation to “consult their population” on senate appointments, but this was found unconstitutional as well.

The government also asked whether the senate could be abolished with the consent of seven provinces representing half of the population, but the Supreme Court ruled that even indirect abolition of the senate would be a major change requiring unanimous consent of federal and provincial legislatures.

Provinces as rational actors

“Reopening the Constitution” as it is sometimes referred to, has become a big taboo in the world of modern Canadian politics. It seems that traditional wisdom has become that the dysfunctional family of Canadian provinces could not possibly agree on anything, and that too much talk about the Constitution will lead to the break-up of the country.

It seems that Harper was only willing to take the debate to the provinces if it was to discuss abolition of the senate. Senate elections and term limits were only on the table if the House and Senate could get it done on their own. It made sense, the cost-benefit analysis needed the benefit of a chance at abolition in order to be worth the cost of re-igniting a political firestorm, one that would have certainly accused the government of having sinister intentions for abolishing “half” of the country’s parliament.

The complicated relationship between parliament and the provincial legislatures assigns no limit to the speed at which political capital can be burned up trying to come to a national consensus on anything contentious. Just ask Brian Mulroney and the PCs in 1993.

The contention does not get much stronger than when discussing a legislative body specifically designed for regional representation.

The population represented by each MP fluctuates quite a bit, but not as much as the population represented by each senator. In 2015, MPs represented anywhere between 26,728 and 132,443 Canadians (Labrador and Brantford—Brant). Meanwhile, PEI senators represent 35,726 and BC senators represent 774,676, a disparity of more than 21x.

The Atlantic provinces already get massively out-voted in the House of Commons, and they would not be keen on further reducing their representation by abolishing the senate, where they get more than 21x the per capita representation as BC.

It is not clear, however, whether the best attempts at senate reform have already been made. While the elephant in the room might not fit through the exit, perhaps it can be tamed to serve a legitimate public purpose. To illustrate, here is an example of how a government might better approach serious and beneficial senate reform.

An example approach

In this example, the federal government begins its approach to senate reform by generating significant political capital. To do this, it must identify all of its available bargaining chips and identify those that, relative to their expendability, would most appeal to the provinces.

The two original purposes of the senate were to serve as a brake on democracy, and reduce the ability of parliament to ignore the interests of less populous regions. Like PEI.

It can start by offering to offload the power to appoint senators to the provinces. Bodies tend to react positively to the potential for increased influence. It is a big carrot for provinces who are probably better placed to look out for “regional interests” anyway.

It would depend on the political climate of the day, what the provinces would be willing to agree on in order to get what they will be coming to the table for. Each province would face a situation where cooperating would give them fundamentally more power within the federation, and not cooperating would likely make them look unreasonable in the eyes of the public. To achieve this, the government cannot let senate reform become attached to any other topic. It must be a stand-alone item.

Something that the provinces might agree to is term lengths of some sort, renewable or otherwise. The offer on the table would essentially be “hey, provinces, we’ll let you pick the senators if you agree to set term limits for them”.

Perhaps the provinces would agree to an added accountability measure that appointees must be a past or current member of the provincial legislature, to ensure that the senate does not become (or, rather, remain as) a home for a governing party’s failed political candidates.

Let’s also set their salaries at twice the GDP per capita (which would currently be around $90k). It prevents the need to debate their renumeration, and does not fluctuate enough to incentivize them in any political direction. Whatever negligible effect it does have might make them favour economic growth and reasonable immigration levels. Hardly a negative.

If we are feeling especially lucky, let’s see if we can somehow get the Senate down to an even 100. Future parliaments will be marginally less likely to screw around with the round numbers of a parliament with 100 senators and 400 MPs, numbers that could become symbols in the national psyche.

It would push the senate in the right direction, in the sense that it would at least better serve to represent voices for regional interests. Ideally, senators in this new senate would sit as members of provincial parties, with the option to caucus in coalitions of broadly Conservative, Liberal, or NDP provincial parties, but without the option to caucus with the federal parties.

Perhaps provincial legislatures can actually select senators using some variant of the Jefferson Method.

One of the biggest scandals of the Harper years was the Mike Duffy affair, where Harper was alleged to have inappropriately appointed Duffy as a PEI senator, Duffy was alleged to have wrongly claimed travel expenses, and Harper’s chief of staff was alleged to have paid back those wrongly claimed travel expenses.

What that scandal revealed was that the notion that the senate serves as a safeguard for regional balance is, practically speaking, a load of hogwash.

What better way is there to ensure that the appointments are focused on regional interests than to hand over the keys to those elected to serve provincial interests?

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