Stephen Harper and the Senate: Not his problem?

After eight years of variously talking about and hoping for a different upper chamber, does the Prime Minister no longer see any role for himself in the pursuit of Senate reform? And, if so, how would an elected Senate be accomplished?

Back in the House yesterday for the first time since the Supreme Court’s ruling on the Senate reference, the Prime Minister was duly asked for a response and thus offered the following.

Mr. Speaker, as members would know, the Supreme Court has ruled in its wisdom that the federal government can neither abolish the Senate, nor in fact can the federal government actually propose significant reforms to the Senate. That is all now, according to the Supreme Court of Canada, within the purview of the provinces. Therefore, my position has not changed.

If the provinces believe, as I do, that there should be reform, they should bring forward those forthwith. If they do not believe that, they should bring forward amendments to abolish the Senate.

It’s not clear what the Prime Minister means when he says the federal government can’t propose significant reforms to the Senate. It can’t impose significant changes, but the Supreme Court has not told the Prime Minister that he must now sit quietly in the corner and wait for the day that the provinces figure it out for themselves. Although perhaps that’s what he’d like to do.

Undaunted, Conservative Senator Bob Runciman is trying to be optimistic: “I think it could happen fairly quickly if the provinces came on board.” That might be the most adorable thing anyone has ever said about Senate reform, but political scientist Bruce Hicks figures it could all be wrapped up in a year. Three provinces—British Columbia, Alberta and New Brunswick—have shown varying degrees of interest in Senate elections. Saskatchewan and Manitoba each used to be interested in elections, but have since come out in favour of abolition. If the Prairie provinces could be convinced to go back to their old positions, that would make five. Hicks posits that a new Ontario government—Progressive Conservative, presumably—could join them to make six and push the group over the 50% population threshold. Then they’d only need to find one other Atlantic province. And perhaps then endure whatever complaints would be raised by the other three provinces*. (What if the seven provinces wanted to play around with the seat distribution on the seats? Our friend Emmett Macfarlane tells me 7/50 would be enough to get that done so, if they could agree to a new allotment, those seven provinces could impose it.)

Royce Koop, meanwhile, says it’s time for provinces like Manitoba to simply proceed with Senate elections. But, in responding to the Supreme Court ruling, Alberta didn’t quite commit to holding future elections and neither now is New Brunswick so willing. And as our friend Emmett Macfarlane explained to the CBC in New Brunswick, it’s not clear that provinces can move forward individually.

“The court didn’t give us a list of all these possible alternatives and tell us which ones fall within the amending formula and which ones don’t,” he said. “If all provinces tomorrow enacted Senate elections, that would change the nature of the Senate. But if they enacted these elections informally, does that require or constitute a formal amendment to the Constitution? I’m not sure anyone is quite clear on that.”

MacFarlane says the Alward government could decide to go ahead and hope that its bill isn’t challenged in court. Or it could file its own reference case to the New Brunswick Court of Appeal, seeking a ruling on what the Supreme Court ruling means for its bill.

In other words, it might be a matter of seven or nothing—either seven provincial legislatures pass a new system of electing senators in concert with the House of Commons or nobody does anything.

So how committed is Stephen Harper to sitting back and letting the provinces sort it out? He has perhaps not shown much inclination for attempting cooperative federal leadership, but he does still, at least theoretically, have an intergovernmental affairs minister (last news release issued February 13, 2013) and he does have a minister of democratic reform and they might be given something to do. Otherwise, what are the odds that seven provinces get together of their own volition, either gradually over time or in one concerted effort, and decide to change the Senate? Will federal Conservatives be content to sit back and wait for that day to come?

*This factor probably shouldn’t be under-estimated. Particularly, as Sean Fine hinted after the ruling was released, if Quebec was one of the three provinces that was left out.