What now for the Senate?

Will Stephen Harper ever appoint another senator?

Pawel Dwulit/Toronto Star/Getty Images

Pawel Dwulit/Toronto Star/Getty Images

James Cowan, the Liberal senator, takes the occasion of the Supreme Court’s Senate ruling to say, we told you so.

The Supreme Court of Canada today confirmed what Senate Liberals have been saying since 2007 about Mr Harper’s proposed changes to the Senate. At that time the Senate Standing Committee on Legal and Constitutional Affairs, after receiving the opinions of constitutional experts and provincial governments, recommended that the Government seek guidance from the Supreme Court to ensure that the provisions in the Constitution with respect to constitutional change were followed. The Government refused and did not do so until six years later, in 2013 – when Mr. Harper’s failure to deliver on his promise of Senate reform was becoming a political problem.

Stephen Harper has been in power for 8 years, and we are no further ahead on Senate reform than on the day he took office. I have said before and continue to believe that had the Government acted on our recommendation sooner, Senate reform could have been far advanced in this country by now.

(Said committee report is available here.)

Elizabeth May, meanwhile, suggests the government stop wasting Parliament’s time with bills of questionable constitutionality, Liberal MP Sean Casey cheers for a day in which the government was compelled to acknowledge those who disagree with it, Independent MP Brent Rathgeber argues that the focus now needs to be making the Senate an effective check on power and former Liberal MP Bob Rae tries to explain what the ruling really means.

The Harperites, and some others, are now busy saying the Court has endorsed the status quo and that changing the Senate is now “impossible.” This is another act of spin. The Court has no opinion about the Senate, its utility, or its value. It neither praises nor condemns the institution. It simply tells us all to give our heads a shake and understand the constitution of Canada. Senate reform, and other constitutional change can happen if there is enough strong desire for it to happen. It means the federal and provincial governments would have to start talking to each other, and that someone would have to exercise leadership. To say this is “impossible” is to take our current lethargy, backbiting, and political churlishness as normal for all time…

Mr. Harper could always make better appointments to the Senate. He could make it a place where contrary opinions were welcome. He could, by these appointments, encourage it to be less partisan, and more thoughtful. And he could, slowly, quietly, be encouraging some back channel conversations about how to make constitutional change possible.

So what are the odds Mr. Harper does any of that?

Over the weekend, Pierre Poilievre was asked if the government might even try to reform the Senate along the parameters set out by the Court and the minister retreated into talking points.

… the Canadian people are focussed on the economy. Our government is focused on jobs growth and lower taxes, and we don’t want to distract from that agenda by having a complicated constitutional wrangling with politicians at other levels of government.

So it is not merely that attempting to reform the Senate would involve negotiating with the provinces, but that those negotiations could imperil the government’s ability to create jobs and lower taxes. We can have an effort to bring about an elected Senate or we can have more jobs. We cannot have both.

(Would it be naive to wonder what might happen if the Conservatives simply now produced a proposal for a new Senate and submitted it to the provinces for response?)

The government’s new line seems to be that it will seek to “minimize cost” and “maximize accountability.” What precisely those phrases mean remains to be seen, but so far as minimizing the cost of the Senate, the Prime Minister seems at least to be in no hurry to fill any of the nine vacancies in the upper chamber. That was the Prime Minister’s position last August and again when I asked  last December and again when I asked the PMO yesterday: “We have no plans to appoint any new Senators at this time.”

If the Prime Minister maintains that position through to the next election, there will be at least 17 empty chairs in the Senate in the fall of 2015 (seven more senators will reach their mandatory retirements, while Hugh Segal has already announced he’ll retire this spring).

What then?

A re-elected Conservative government could conceivably carry on not appointing senators. But for how long? (The Senate seems to require 15 members to meet and conduct business, a number it could conceivably remain above until 2030 if all current senators stay until their mandatory retirement at 75.) What would a different Conservative prime minister do? Would the Conservative party simply adopt the practice of appointing senators or will some future Conservative leader have to make a go at negotiating with the provinces?

A Liberal government in 2015 would conceivably carry on with the caucus separation of MPs and senators and try to implement Justin Trudeau’s vague assertion of a new appointment process, though that might require another Supreme Court reference. If the Trudeau plan was successfully implemented, would the Conservatives adopt a similar approach?

A future NDP government would have the most obvious challenge—first dealing with a chamber dominated by Conservatives and Liberals and then having to negotiate the provincial unanimity required to abolish the Senate. Brian Topp dealt with this somewhat during the NDP leadership campaign in 2012, at least insofar as acknowledging the potential situation. So one big question: What would it take to get unanimity?

Lingering here is the notion of some kind of referendum—touted by Hugh Segal and Maxime Bernier, but also once championed by the NDP—but the value of such an exercise is debatable. For one, it would be non-binding. Even if you tried a straight question of whether a Senate of any kind should exist, a majority result in every province could only clarify public opinion. There’d still need to be negotiations. Second, as the Liberals have noted, it could just as easily produce an unclear result: with, say, a national majority going for abolition, but majorities in some number of provinces going the other way.

As for Alberta, the only province to have conducted Senate elections, the government apparently still believes in a democratic foundation for the upper chamber, but it’s unclear whether its legislation would withstand a legal challenge. Does Alberta want to keep conducting such elections? Would any other province want to try?

For all of this, Stephen Harper’s legacy ends up being a Senate reference that clarifies the options. But it is also ends up being the fact that it took him eight years to get that ruling. How far “advanced” Senate reform would be by now if the Prime Minister had moved earlier is a fun counterfactual to consider, but it couldn’t be any less advanced than it currently is.

Indeed, with Mr. Harper showing no interest in appointing anyone to the Senate, we’re actually back to 2006 and his promise to refrain from appointing any unelected senators. In between then and now, he managed to put 56 such individuals on the public payroll. Many of those senators were said to have pledged to support the government’s reform initiatives. But if anyone wants to observe a term-limit, they’ll now have to do so voluntarily. Otherwise 21 of Mr. Harper’s appointees could still be sitting in the Senate at the end of 2025.