Canada’s Senate: Chamber of disrepute

For a sense of how damaging the news has been for the Senate this winter, take a guess at which of two Feb. 6 stories most stuck in the minds of Canadians. There was the release that day of a carefully researched report by the Senate’s finance committee on the persistence of lower consumer prices in the U.S. than in Canada, just the sort of policy work senators use to justify their patronage positions. And then there was Sen. Mike Duffy scuttling away through the kitchen after giving a speech at a Halifax hotel ballroom, trying to evade reporters asking questions about his claim that he mainly lives on Prince Edward Island, the dubious basis on which he’s collected a Senate allowance for his Ottawa housing costs. At the journalists in hot pursuit, plying his former trade, Duffy huffed, “You should be doing adult work.”

Many Canadians listening to that TV clip—let’s stipulate that few were distracted by the worthy committee study of prices—must have wondered if it isn’t senators who should heed Duffy’s advice. Parliament’s upper chamber has suffered through patches of deep notoriety before, but the past three months brought an unusually sustained flurry of public-image pummelling. A key reason was the marquee quality of three Conservative senators who found themselves under unwelcome scrutiny. Duffy is famous as a former long-time TV news personality. So is Sen. Pamela Wallin, whose six-digit travel expense claims are also the subject of controversy and a special audit. And Sen. Patrick Brazeau—whose far more dire downward spiral, culminating in charges of assault and sexual assault—is also widely recognizable for having been thrashed last year by Justin Trudeau in a highly publicized charity boxing match.

If a shrewd advocate of Senate abolition were to script a serial to drag the red chamber further into disrepute, three senators more likely to attract and hold the public eye couldn’t have been cast. (A fourth whose housing allowance claim is also in question, Liberal Mac Harb, has a far lower profile.) So defenders of the Senate—yes, they continue to exist—protest that the cascade of revelations through December, January and February amounted to a string of disconnected issues that only happened to involve an improbably headline-worthy lineup of miscreants. Still, Sen. Hugh Segal, who is calling for a referendum on abolishing the Senate even though he favours keeping it, says an underlying lack of legitimacy means sordid stories about senators behaving badly tend to unstop “a massive flow of cynicism and contempt for the whole institution.” Then, as if on cue, another Conservative senator, Pierre-Hugues Boisvenue of Quebec, found himself the target of questions over newspaper reports that he claimed more than $20,000 for living expenses in Ottawa, while stating his primary residence is in Sherbrooke, Que. However, La Presse found his Sherbrooke condominium was occupied by his ex-wife. The newspaper also reported Boisvenue is romantically involved with one of his Parliament Hill employees.

Another interestingly timed development helped turn what might have been merely a perfect storm of bad press into a perfect moment to consider doing something about the Senate, maybe even doing away with it. On Feb. 1, near the height of the recent uproar, Stephen Harper took a step he had long resisted, asking the Supreme Court of Canada’s opinion on his two-pronged Senate Reform Act. That bill would limit senators’ terms to nine years, instead of letting them serve until they reach 75, and set guidelines for provinces to hold Senate elections, although prime ministers would still formally appoint the winners. The so-called “reference” to the court also asks the top judges to deliver their definitive view on the constitutional rules for other reforms—including what it would take to abolish the Senate once and for all.

Abolition isn’t Harper’s preferred option. Even if it were, experts agree such a fundamental overhaul of Parliament would be extremely difficult to pull off. It would require a constitutional amendment backed by at least seven provinces representing 50 per cent of the population, or perhaps unanimous provincial consent. The court will decide which formula applies. Still, scrapping the Senate has emerged as a more mainstream position than ever. It’s not just the New Democratic Party’s stance. Saskatchewan Premier Brad Wall, who is widely admired by federal Tories, argues provincial governments already fulfill the roles imagined for a reformed Senate—providing a check on the power of the House and a voice for regions. Wall says that “Canadians are ready for a discussion” about abolishing it. Michael Fortier, a former Harper-appointed senator from Montreal, says he went into the upper chamber naively underestimating its partisanship. Fortier told CBC he found the Senate “very annoying” and now leans toward “closing the place down.”

Segal, who is among the Senate’s most respected moderate Tories, proposes a national vote on its fate. In fact, he first tabled a motion providing for a referendum on abolishing the upper chamber within months of being named to the Senate in 2005. Segal says he would campaign passionately for maintaining a two-chamber Parliament, rather than leaving the House to legislate on its own. He points to recent cases when bills passed hastily by MPs had to be amended by senators, including legislation on tax breaks for filmmakers that failed to take into account how movies are really financed, and anti-terrorism measures that had been successfully challenged in the courts. “A complex federation needs a second chamber,” he says.

But Segal counts 19 previous failed efforts to reform the Senate since Canada was born in 1867. All fell short, he says, because prime ministers and premiers tried to negotiate constitutional change without first going to the people to secure a democratic mandate. “If Canadians are given the chance to abolish and they vote not to,” he says, “that will be the first public expression of legitimacy for the second house since Confederation.” What would follow, Segal predicts, is a full-blown bid to update the Senate through constitutional amendments. But ever since former prime minister Brian Mulroney’s disastrous 1984 Meech Lake and 1992 Charlottetown accord reform bids, attempting that sort of federal-provincial deal-making has been regarded by many political strategists as folly.

Harper has avoided any hint of willingness to plunge into constitutional wrangling. His Senate reform bill is calibrated to try to avoid changes that would unambiguously require provincial agreement. Limiting senators’ terms to nine years is arguably within federal authority. After all, Ottawa acted alone to institute a mandatory retirement age of 75 in 1965, ending lifetime Senate appointments. But Harper’s plan to encourage provinces to hold Senate elections, as Alberta already does, is more controversial. Under the 1982 Constitution Act, changing the way senators are selected requires approval of at least seven provinces with at least half of the population. Harper is trying to get around that by framing the provincial elections as merely a way of selecting the nominees prime ministers would ultimately appoint in the old way.

He’s asking the Supreme Court to accept that as subtle rather than sneaky. “It’s a rather devious way to achieve something here,” says Ron Watts, professor emeritus of political studies at Queen’s University, a leading expert on federal systems around the world and an adviser to past Canadian governments on constitutional issues. Watts says Harper’s bid to fundamentally change the Senate by imposing term limits and mandating elections “violates the spirit” of the constitutional amending procedures that clearly call for substantial provincial approval before any such reforms. He doubts the court will allow it on the basis of federal legislation alone.

But if the court does let Harper proceed, the outcome, Watts warns, will be far more consequential than the Conservatives have been letting on. In theory, the Senate is already as powerful as the House, apart from the fact that the upper chamber isn’t allowed to initiate so-called “money bills,” legislation requiring new taxes or spending. But as patronage appointees, senators have, with rare exception, bowed to the will of democratically elected MPs. “A Senate that’s gained the legitimacy of an electoral base could introduce a serious challenge to the principle of House primacy,” Watts says.

Elected senators might well feel empowered to refuse to pass legislation sent up from the House whenever they choose. Washington-style gridlock is one feared result. A significant shift of Canada’s parliamentary balance of power might be inevitable. Yet Harper has largely succeeded in portraying his proposed reforms as incremental. Segal describes the package that way, too, and supports it. But he also sees these reforms as only the first stage in a necessary larger process, one that would finally require provincial agreement. “You’ve got to start somewhere,” he says. “What I think the Prime Minister thought he was doing, properly, was to start with two modest efforts, which would get the ball rolling.”

Where would it roll next? It’s hard to imagine that a more legitimate, and therefore more assertive, Senate could continue for long to represent provinces in its current skewed way. The Atlantic provinces are grossly overrepresented, while the West has far fewer senators than its share of Canada’s population. The three Maritime provinces and Newfoundland now have a combined 30 senators, while the three Prairie provinces and British Columbia have just 24. Quebec and Ontario get 24 each.

Nobody imagines that securing provincial consent for revising those totals would be anything short of tortuous. Why would a premier whose province’s seat total stands to fall agree before trying to secure other concessions? That was the doleful lesson of Meech and Charlottetown. But Watts says abolition would be at least as difficult, likely demanding unanimous agreement. After decades of watching and participating in Canada’s constitutional wars, his assessment of the chance of that happening: “While it’s possible, I would say highly unlikely.”

Yet some key factors have changed recently. A new variable is the 2011 election of an NDP official Opposition. With none of his partisans in the Senate, and little prospect of living long enough to see the upper chamber emptied of Tory and Grit appointees, the NDP’s Thomas Mulcair arguably has less stake in its survival than any previous major party leader in the House. Unlike Conservatives and Liberals, up to and including Harper, New Democrats haven’t been able to use the Senate as a taxpayer-financed sinecure for campaign organizers and party fundraisers. On Tuesday, the NDP used one of the days set aside for opposition parties to set what the House debates to introduce a non-binding motion calling for the federal government to consult with provinces on “abolishing the unelected and unaccountable Senate.”

The staunchly anti-Senate sentiment represented by the NDP has been bolstered by all the unsavory episodes of the past few months. But the Senate’s capacity for weathering storms should not be underestimated. It survived after having to vote in 1998 to prevent then Liberal senator Andrew Thompson from claiming more expenses, after it came to light that Thompson had moved to Mexico and showed up at the Senate on just 47 occasions in 14 years. It outlasted the embarrassment of former senator Raymond Lavigne being convicted of fraud and breach of trust in 2011 for claiming thousands in unearned travel reimbursements and using Senate staff for hundreds of hours of work on his private property. He was suspended and then resigned. But Thompson and Lavigne were anonymous figures compared to the unwilling stars of this season’s must-watch Senate scandal series.

The first episode aired in early December, when news reports questioned whether Brazeau really lives in Maniwaki, Que., as he claimed in order to qualify for a housing allowance, or if he resides in his house in Gatineau, Que., well inside the capital region. A subcommittee of the Senate’s powerful internal economy committee was struck to look into the matter. Since Brazeau is a Harper-appointed Conservative, Tories were relieved when news reports soon raised similar questions about whether Harb, a Liberal, really lives in Pembroke, Ont., as he claims, and not in Ottawa, where he was a long-time MP.

In early January, questions about Duffy’s assertion that his primary residence is in P.E.I. broke as news. After weeks of rebuffing allegations that he really lives near Ottawa, Duffy told CBC he would voluntarily repay the expense payments he’d collected. “I hope,” he said, “it reassures Islanders and Canadians that the old Duff—the Duff they’ve known and trusted—would never do anything wrong.”

His fellow former broadcaster, Wallin, is apparently maintaining that she has done nothing wrong. Since the fall of 2010, Wallin has claimed $29,423.84 for what’s called, on Senate expense forms, regular travel, meaning travel to and from Saskatchewan, the province she represents. But she also claimed $321,037.58 for “other” travel. That raised eyebrows among her fellow senators. And her penchant for venturing far from Parliament Hill has been in the spotlight before. In 2011, the Senate’s internal economy committee rejected a request from the defence committee, which Wallin chairs, for $231,650 for a two-day trip to Afghanistan. A Liberal flagged the proposal as a problem, but Tories chimed in. Conservative Sen. Carolyn Stewart Olsen, a former aide to Harper, noted that Wallin had recently been to Afghanistan, and anyway, Canadian troops didn’t need senators “traipsing around Kabul.”

The Conservative and Liberal leadership in the Senate have jointly promised to release the results of independent audits of the expenses of Duffy, Harb, Brazeau and Wallin. In Brazeau’s case, though, that is the least of his worries: he was arrested on Feb. 7 by Gatineau police after a 911 call to a domestic dispute, and later charged with assault and sexual assault. The charges have not been proven in court. While his situation now demands a different level of attention—the Prime Minister called it “extremely appalling”—the upper chamber’s most powerful members are struggling to salvage something from the broader spending fiasco. Perhaps the oddest twist comes with recent suggestions from some senators that they hope to turn this crisis around and improve their image.

That’s right. Not just survive the onslaught of the abolitionists, but gain new credibility. The starting point for this supremely optimistic strategy was the Senate internal economy committee’s announcement on Feb. 28 that, of 105 senators, all but three—Duffy, Harb and Brazeau—had provided documents demanded of them to prove that they live where they say they do. No embarrassing new cases of unsupported housing expense claims turned up—to the palpable relief to Tory Senate Leader Marjory LeBreton and Liberal Senate Leader James Cowan.

LeBreton was particularly upbeat on the Senate’s chances of looking better. She would not predict when the independent audits, by the accounting firm Deloitte, of Duffy, Wallin, Harb and Brazeau will be completed, or when a wider internal review of Senate administrative procedure will be done, but she vowed to act on all findings. “I am absolutely determined to ensure that these issues are resolved so the Senate can get the credit it deserves for the good work it does,” she said in the foyer of the red chamber. She pledged there will be no further doubt about the rules senators must follow in filing for expenses. “I can assure you from this moment on clarity will not be a problem.” Cowan touted the Senate’s transparency while “under siege.” “Rather than deal with [issues] internally,” he said, “where nobody would have found out about them, we sent them out to external auditors. I don’t think the House of Commons has done that.”

Even if the Senate cleans up its expenses act, critics say that’s not the real point. “It’s kind of changing the channel,” said NDP MP Craig Scott, a former law professor and his party’s leading advocate of abolition. “Who wouldn’t welcome a more ethical Senate? But the underlying issues will still be there.” Scott says he hopes the Supreme Court finds that just seven provinces with 50 per cent of the population would be needed to abolish the Senate. If the judges say unanimity is needed, that would make the quest far tougher.

Liberals argue any constitutional reform push would be futile. Justin Trudeau, the overwhelming favourite to win the party’s leadership race next month, says naming better senators is the answer. Cowan’s solution: reform the appointments process by having a committee of eminent Canadians recommend nominees, eliminating the perception that prime ministers “just name their cronies.”

As for Canadians unlikely to ever win the Senate lottery, polls show most favour electing senators. Even with the expense controversies raging early last month, Angus Reid found just one-third of Canadians surveyed favoured abolition, while two-thirds would prefer elections—proportions that have changed little in the firm’s polling in recent years. Still, Angus Reid vice-president Mario Canseco said public opinion holds perils for Harper: three in five Canadians consider him hypocritical for naming new senators despite his many assertions that he disapproves of an unreformed Senate. “When is that vision of reform going to materialize?” Canseco asks.

Not very soon. The Supreme Court has called for written arguments in the Senate reference case to be submitted by next summer, with a three-day hearing to follow next November. Several provinces, including Quebec and Nova Scotia, will be intervening.

No matter how the court rules, Ron Watts, after his long scholarly career studying federalism and Canada’s many bids to reform its version, argues the issue transcends province and party. The need to reform the Senate is a test of Canadian democracy’s maturity. Everybody can see now, maybe more vividly than ever, that it’s broken. But nobody is so sure it can be fixed, or even finished off. “We have to as Canadians face up to whether we can ever have a constitutional amendment,” Watts says. “If we can’t amend the Constitution ever, we’re in a bad way.” He means not just on Parliament Hill, but as a country.

EXPENSES PER DAY

This includes travel, living, hospitality and office expenses. The average per day for senators is $494.*

TOP 5 SPENDERS

1. Terry Mercer

$822 Liberal, N.S.

2. Nick Sibbeston

$815 Liberal, N.W.T.

3. Pamela Wallin

$786 Conservative, Sask.

4. James Cowan

$769 Liberal, N.S.

4. Bert Brown

$766 Conservative, Alta.

THE FRUGAL 5

1. Paul McIntyre

$90 Conservative, N.B.

2. Dianne Bellemare

$114 Conservative, Que.

3. Than Hai Ngo

$115 Conservative, Ont.

4. Thomas McInnis

$148 Conservative, N.S.

5. Paul Massicotte

$152 Liberal, Que.

* From Sept. 1, 2010 to Nov. 30, 2012. List excludes retired senators.

TRAVEL EXPENSES PER DAY

This includes “regular” travel (to residences outside of Ottawa) and “other” travel, elsewhere in Canada. The average per day for senators is $149.*

TOP 5 SPENDERS

1. Nick Sibbeston

$409 Liberal, N.W.T.

2. Terry Mercer

$400 Liberal, N.S.

3. Pamela Wallin

$383 Conservative, Sask.

4. Bert Brown

$345 Conservative, Alta.

3. James Cowan

$339 Liberal, N.S.

THE FRUGAL 5

1. Than Hai Ngo

$0 Conservative, Ont.

2. Dianne Bellemare

$13 Conservative, Que.

3. Serge Joyal

$14 Liberal, Que.

4. Paul Massicotte

$15 Liberal, Que.

5. Paul McIntyre

$16 Conservative, N.B.

* From Sept. 1, 2010 to Nov. 30, 2012. List excludes retired senators.