The long, uncertain path to Senate reform

The PM has touted updating the scandal-plagued Senate for years. In 2014, he may score a partial victory


Pawel Dwulit/Toronto Star/Getty Images

Two of the most controversial cases heard by the Supreme Court of Canada recently both happen to involve lines of work not always held in high repute. There was the prostitution case, in which the court ruled last month that laws around the sale of sex violate the Charter of Rights and Freedoms by exposing prostitutes to grave danger and gave the federal government a year to reform the laws. And then there’s the matter of the Senate. Prime Minister Stephen Harper has asked the judges, in what is called a “reference,” to give their opinion on his plan to set term limits for senators and appoint them based on the results of elections. The key question is: Can the federal government make these reforms unilaterally, or does it need most, or even all, of the provinces to agree?

Although the prostitution case was fraught with moral and law-enforcement issues, the political stakes in the Senate reference are far higher. For years, Harper has touted updating the upper chamber as a core element of his party’s “democratic reform” agenda. Public attention to the issue was heightened by 2013’s prolonged controversy over senators’ expense claims and the bungled efforts of Harper’s own office to manage—critics would say cover up—the most politically damaging elements of what turned into a full-blown scandal. So the dream outcome for Harper in the reference case would be for the court to give him an unequivocal green light, allowing him to claim success, after many previous bids at Senate reform, going back many decades, failed utterly. Few experts, though, predict the judges will grant him anywhere near all that he’s asking.

But it’s possible Harper will secure a partial victory. During the court’s hearings on the reference last month, federal government lawyers argued that Ottawa has the constitutional power to act alone in setting a term limit of nine years for senators. A key bit of history: In 1965, the federal government imposed mandatory retirement at 75 for senators, who previously enjoyed lifetime appointments, without seeking provincial agreement. University of Ottawa law professor Adam Dodek calls that a “strong precedent.” And the judges seemed interested, Dodek notes, in the fact that most senators now serve about a dozen years, not so much longer than the proposed limit. Still, the court also heard compelling points against term limits, including Sen. Serge Joyal’s argument that quick turnover would allow any long-serving prime minister filling the vacancies to appoint virtually the entire upper chamber.

If Harper stands a decent chance of getting the answer he wants on term limits, some expert observers say the odds are against him on elections. Currently, senators are appointed by the Governor General on the Prime Minister’s advice, although the choice is really, of course, entirely the PM’s. Harper’s legislation would encourage provinces to hold Senate elections and require prime ministers to consider nominating the winners, though no future PM would be bound to do so. Federal lawyer Robert Frater said there’s a world of difference between instituting binding Senate elections, which would require provincial approval, and non-binding votes, which he said Ottawa can do on its own. “This is our whole point,” Frater told the court. “It is a change to the Prime Minister’s decision-making process, which he is free to make.” But Justice Rosalie Abella snapped back: “It is a change to the method of appointing senators … a fundamentally different type of consultation.”

McGill University law professor Robert Leckey detected little indication that the judges were persuaded by the federal government’s claim for its power to take this partial step toward democratically legitimized senators. “My hunch, based on the hearings,” Leckey says, “is the government is not going to get the non-binding elections.” He predicts the court will say that changing the way senators are chosen requires a constitutional amendment approved by at least seven provinces representing half Canada’s population or more. On the more radical idea of abolishing the Senate entirely—which is not Harper’s first choice, but his reference asks the court’s opinion on it anyway—Leckey and Dodek both expect the judges to say unanimous provincial approval would be required.

Overall, the outlook for the Conservatives in the case is not terribly promising. They might be allowed to set term limits, although that’s far from assured, but it will be surprising if they are allowed to press ahead with elections, unless they’re willing to first coax most provinces onside. In the past, Harper has shown absolutely no appetite for that sort of constitutional wrangling with the premiers. As for the nuclear option of abolition, it is an even less likely project, given that securing unanimous provincial consent would be dauntingly difficult. Given all the obstacles, some of Harper’s sharper critics are amazed he has tried to pursue this reform path at all. “There is just such a lack of constitutional sensitivity in this that it is almost mind-boggling,” says David Smith, distinguished visiting scholar in politics and public administration at Ryerson University in Toronto.

Some critics of Harper’s Senate strategy suspect that political calculations, not a genuine expectation of winning, underpin it. Matthew Mendelsohn, director of the Mowat Centre at the University of Toronto’s public policy school, predicts that, after the court issues its reference decision, the Conservatives are most likely to admit defeat and blame others, perhaps including judges, some provinces and recalcitrant Liberal senators. “They had a commitment to do [Senate reform],” Mendelsohn says. “They are playing out the final period knowing the outcome of the game. Then they will look for villains, point the finger and say they tried their best.”

Another possible tack that’s less likely but Mendelsohn says can’t be ruled out, is that Harper will attempt what he calls a “Hail Mary on abolition.” This politically risky play might see the federal Tories allying themselves with premiers who want the Senate scrapped, notably Saskatchewan’s Brad Wall, whose government recently repealed legislation that would have allowed for election of Senate nominees and instead passed a motion calling for getting rid of the upper chamber. Some prominent federal Tories are already in the abolition camp, including Finance Minister Jim Flaherty. Others are staunchly against abolition, including Employment Minister Jason Kenney, who stresses how hard it would be to persuade the provinces to agree, and touts the benefits of a reformed Senate better representing regional interests.

Nobody can be sure when the court will deliver its opinions on the Senate reference, although most observers expect it sometime in 2014. (Leckey said there’s no guarantee the judges, if they are having trouble coming to a consensus, wouldn’t let their deliberations stretch into 2015.) This sort of reference case is rare. There was the 1981 patriation reference, in which the court ruled that convention required Pierre Trudeau’s government to secure substantial consent from provinces to bring the Constitution home from Britain and amend it; and the 1998 secession reference, in which the court said Ottawa would be obliged to negotiate Quebec’s exit from Canada only if “a clear majority” of Quebecers voted to separate on “a clear question” in a referendum.

Dodek says the Senate reference is potentially at least as important as those previous landmarks. “The secession reference was about how you go about making a change to the Constitution that absolutely nobody envisioned and the Constitution doesn’t speak to at all,” he says. “This case is about how you make changes to the Constitution about things that we do envision.” During last month’s hearings, several judges suggested those wider implications by raising what sounded like outlandish scenarios. If the Senate can be abolished, what about the House of Commons? If consultative elections on Senate appointments are not such a big leap, why not the same sort of votes for federally appointed judges?

All these exchanges, Dodek says, showed the country’s top judges fully testing the arguments about reforming the Senate. Even if the conclusions they reach effectively halt the current bid for reform, their reasoning might well establish clearer rules for any future attempt to alter Canada’s key governing institutions. “This is the first big opportunity,” Dodek says, “to set out how you go about making fundamental changes to the Constitution.” The immediate reaction is bound to be all about the messy, divisive, frustrating politics of the Senate. The lasting impact, however, could be about how Canadians go about reforming the way they are governed from here on in.


The long, uncertain path to Senate reform

  1. I truly hope/wish the Supreme Court will allow CANADA to have an elected senate. It is time for this country to move forward.

    • They won’t stand in the way of CANADA (as you type it). But htey may point out that it will take more than Stephen Harper’s say-so to do it.

  2. Why should the provinces invest resources in holding Senate elections? There’s not much in it for them, particularly as we’ve learned that chamber has been transformed into a branch office of the PMO.

    • Well, we will never know unless the Conservatives start a discussion. Many of the current appointments are people with strong federal political connections and the provinces might well be interested in having more people with provincial ties. Depending on how the elections are set up that could be the result.

    • Elections would prevent the chamber from becoming a branch office of the PMO.

      • Not necessarily. The PM isn’t committed to appointing those elected.

      • You mean like how those elected MP’s don’t take orders from the PMO?

        • But the PM is not likely to control an elected Senator who is not a member of their party. Elections could even go so far as to create the heretofore unheard of problem of a PM losing control of a house of Parliament in the midst of their mandate.

    • Well, the useless senate does do their job, consume our money and do nothing tangibly useful for it. Fits in right with Ottawa that has a GA (government administration cost on building, salaries, pensions, MP/senate) of a whopping 29.5% of revenue.

      Even CRA doesn’t do 1/2 of what a credit card company does for 2-3%, but CRA that does no credit, does no vendor collection, doesn’t provide anything more than grab cash gets over 3.5% of each tax dollar.

      If it were a business, the GA costs are typically lower than 5%. Makes Ottawa the most inefficiently run organization in Canada. All on the backs of tax slaves 67 for less while gov-union gets 55 with more and perks.

      But hey, we don’t have better choices on the statism rigged ballot. We have been conditioned since grade one not to question big governemtn managing us like chickens, to be herd and not heard.

    • possibly because provincially elected senators might put provincial interests before federal policy.

  3. Another issue I think likely to soon come before the Supreme Court will be mandatory minimum sentences. It seems to me that Prime Minister Harper has little appetite for constitutional debates, or debates of any kind for that matter. This government likes to pass laws as quickly and with as little debate as possible, and no amendments, and move on. But the older this government gets the less nimble they seem to be. It is becoming increasingly clear to me that Mr. Harper’s desire to change the nature of Canadian society to suit his vision will require aptitudes and attitudes that he and his caucus do not possess. It will be up to future governments to do those things.

    • If Harper were to win another majority, i wonder if he would test equalization

    • And others like to debate ad infinity with nothing accomplished.

  4. I’m not sure you want to fall into the trap of reading too much into the questions or comments particular Justices make when they’re hearing a reference. Frankly, just because they give something a rough ride doesn’t mean they aren’t going to find merit in it – in fact, one could even say it makes sense to test the arguments you prefer to see how well they hold up to scrutiny.
    I actually think there’s some merit to the argument re: elections as long as it only binds the conscience of a given prime minister. Frankly, if Harper decided he was going to choose his next senate appointment by lottery I don’t think anyone could challenge him legally (provided the ultimate appointee fulfilled the constitutional requirements to be a Senator). The only fallout would be political – though I’m sure there are some who would say we couldn’t do much worse than the current system in which the PM uses his best judgment.

    • On the face of it , choosing senators seems off the wall . It does have its merits though such as
      (1) no costly elections
      (2) the selected senators would not be bound by party politics
      (3) the selected senators could decide what they think is best for the country
      We allready elect MP’s and bemoan the fact that they , the MP’s reflect the party’s view to us , not our view to Ottawa .
      Electing senators would be more of the same old , same old
      Limit the senators to two 5-6 year terms with half the senators selected every 5-6 years thus providing continuity and renewal
      Citizens sit on complex jury trials so the scope of legislation is not that difficult to understand and the Supreme court is the ultimate decision maker in laws anyway .
      As some of the recent appointees have shown , being better than them is not a hard goal .

    • Having electins for Senators, does introduce a constraint of future PMs.

      Also, incrementailism is Harper’s preferred way

  5. It need not take long to eliminate the useless senate. Just that Ottawa always finds the least efficient most wasteful ways to get around doing anything. Elimination of the sentate is so simple that even Ottawa might get it right.

    But that depends on a $370k+++/year judge that is likely cloistered and out of touch with reality. Reality being is Canadians can’t afford this Ottawa bloat for waste.

    • Elimination of the Senate requires Constitutional reform… and that means at minimum getting seven provinces with a combined 50% of the population – and I believe the court will determine the stricter all-provinces rule is the one that actually applies – so I’m rather confused as to how you think this would be “simple”. Please elucidate.

  6. My Proposal for Senate Reform

    Appoint Senators accordingly to the popular vote and let the party leaders select. There are presently 106 Senators.

    As of last election May 2011 The Senate would be:

    Conservatives received 39.6% of the vote – appoint 40 Senators
    New Democrats received 30.6% of the vote – appoint 31 Senators
    Liberals received 18.9% of the vote – appoint 19 Senators
    Bloc received 6% of the vote – appoint 6 Senators
    Greens received 3.9% of the vote – appoint 4 Senators
    Allow 2 Independent Senators chosen by the Governor General, may have a need to fill provincial requirements or elected at large.
    Aboriginal population as of latest census – 4.3% allow 4 Senators (1 from West, 1 from Central, 1 from Atlantic Provinces, 1 from north, should be Inuit)

    Depending on the popular vote, last appointed first out. Senators serve a term of not more than 16 years.

    With this appointment system it would take a majority vote to have a majority Senate.