Stephen Harper’s decision to send a long list of questions on Senate reform to the Supreme Court of Canada — all the stories say six questions, but two are multiple-choice, so I count 14 — reflects an advanced state of uncertainty about how to handle Parliament’s upper house.
Since Harper campaigned for his job seven years ago on a promise to elect senators, and since he has had his majority for nearly two years but is only now asking the top court questions that must surely have preoccupied Justice Department lawyers since at least 2006, his decision indicates he is still improvising on a non-trivial constitutional file.
Actually, I have always kind of liked this dishevelled approach to the Senate-reform task. After the 1992 Charlottetown referendum, Jean Chrétien had a ready-made answer on the Senate: I was all in favour of a Senate reform that would have given the West more clout, but the people rejected it, he’d say. Chrétien and Stéphane Dion and, after the customary vague period, Paul Martin all said a piecemeal reform would freeze a dysfunctional upper house in place. Only wholesale reform would fix anything. And since that was impossible, why bother?
From where Harper sat, that line of argument was repulsive. He always heard it as Let’s do nothing to reform an unelected patronage house that drives a lot of resentment in much of the country. So his most consistent position has been that anything would be better than the Senate we’ve got. “This party’s preference is to see a reformed and elected Senate, but the Senate must change,” he said in 2007. “If the Senate cannot be elected, then it should be abolished. Those are the choices.” This has the advantages of being the opposite of what Liberals say; of sounding impatient rather than complacent; and of sounding flexible about outcomes. You’re welcome to debate the two sides’ relative moral superiority in the comment boards, but to me, between the team with a clear plan to do nothing and the team with a vague plan to do something, it’s hardly an easy pick.
The prime minister’s hope seems to have been that he could make some small change to Senate composition, blow the system’s equilibrium, and seek advantage in the resulting free-for-all. (Meanwhile, of course, since 2009 he’s appointed an army of senators under the old rules, with many of the old results.) His problem is that he hasn’t managed to shake the system up at all. All he’s done is get Quebec’s government to challenge his reform project in court. The Quebec Liberal justice minister who launched that case used to be Michael Ignatieff’s principal secretary, so of course Christian Paradis was quick to badmouth him as out of touch with Quebec popular opinion. But that’s fixed. Now the new Parti Québécois government has inherited the Quebec court challenge, and nobody there worked for Ignatieff, and now parties representing 104 of Quebec’s 125 provincial ridings have joint ownership of this legal challenge, so Christian Paradis is outnumbered.
Harper has gotten very far depending more on endurance and his gut than on extensive planning. Muddling through is an underrated way to go about the job of running a government. It’s almost the only way that works, as Harold Macmillan knew. But some challenges are more suited to incremental improvement than others.
If the court even accepts all of the 14-part reference, and reports in a timely manner, and indicates any way the feds can unilaterally change the nomination process and term length of senators — even if all of those variables break Harper’s way, it’ll still be hard to get far by treating the senate as an issue Harper can nudge forward on slow days and ignore on busy days.