Some of the heaviest hitters in the decades-long crusade for reform of Canada’s unelected Senate have given up hope that the much-maligned upper house can ever be changed.
Their pessimism suggests all the sound and fury over the Senate during the past year – and the tempest to come in the new year as the red chamber continues to grapple with the most serious, protracted scandal in its history – may well wind up signifying nothing.
That, at least, was the consensus of constitutional experts at a one-day symposium last October, hosted by the Manning Centre. It posed the question “whither the Senate?” to a room full of stalwart Senate reform advocates.
Their answer was: Nowhere.
“The outcome of that (discussion) was that reform is impossible, abolition is impossible, change is impossible,” sums up participant Roger Gibbins, past president of the Canada West Foundation and longtime champion of an elected Senate.
“You can’t move in any direction.”
That glum conclusion was based on the belief that the constitutional obstacles to serious reform are simply too high, Gibbins said in an interview. There’s no consensus among the provinces and no stomach among political leaders for a new round of constitutional haggling that would, almost certainly, get bogged down in a host of other intractable, divisive issues like aboriginal rights or Quebec’s distinctiveness.
Prime Minister Stephen Harper thought he’d found a way around those hurdles when he proposed imposing term limits and creating a “consultative election” process for Senate nominees, measures he believed could be done unilaterally without a formal constitutional amendment requiring provincial approval.
But provincial opposition was so stiff – Quebec even took the matter to court and won – that Harper eventually asked the Supreme Court to advise on how the Senate can be reformed or eliminated.
The top court is expected to rule on the matter sometime in 2014. If the vast majority of provinces get their way, the court will rule that even Harper’s modest reform proposals would require the approval of at least seven provinces representing half the country’s population (the so-called 7-50 formula), while outright abolition would require unanimous consent.
Few constitutional experts expect the court to side with Ottawa’s argument that it can act alone on term limits and consultative elections or that abolition would require just 7-50 approval.
Constitutional hurdles won’t stop political posturing on the Senate, however – not when the inferno raging over improper housing and travel expense claims is bound to get worse in the new year with more juicy revelations from the RCMP investigation and possible criminal charges against four senators: Mike Duffy, Pamela Wallin, Patrick Brazeau and Mac Harb, as well as Harper’s former chief of staff, Nigel Wright, who gave Duffy $90,000 to repay his disputed expenses.
The scandal has added fuel to NDP Leader Tom Mulcair’s campaign to abolish what he calls the “unelected, unaccountable and under indictment” Senate. His campaign has picked up support from Saskatchewan Premier Brad Wall, an erstwhile champion of Senate reform, and Manitoba’s NDP government.
Even Harper, himself a longtime Senate reform advocate, is threatening to abolish the chamber if his reforms are stymied.
Just how Harper would go about winning provincial support for abolition if he can’t get a consensus on reform, he hasn’t said. But as he told Postmedia in a year-end interview, he won’t “hold a bunch of constitutional conventions and meetings because nobody wants to go back to that era.”
Some of Harper’s ministers have mused about holding a national referendum on abolition, hoping that public pressure would force recalcitrant provinces to acquiesce.
But a recent Harris-Decima survey conducted for The Canadian Press suggests a referendum would be no sure thing.
While just five per cent of respondents favoured maintaining the status quo, the poll found no consensus on what should be done: 37 per cent said abolish the Senate, 28 per cent said elect senators and 15 per cent said impose nine-year term limits.
Moreover, while a majority said it would be worthwhile to enter into constitutional negotiations to set term limits or create an elected Senate (72 per cent and 65 per cent respectively), there was far less appetite for constitutional talks on abolition – just 46 per cent.
The telephone survey of 1,032 Canadians was conducted Dec. 5-10 and is considered accurate to within plus or minus 3.1 percentage points, 19 times in 20.
While support for abolition was up five points since February, when the expenses scandal really began to catch fire, Gibbins found it still surprisingly low given all the bombshell revelations that have dragged the Senate’s reputation through the mud this fall.
“If anything, it may suggest this issue is not gripping people the way we thought.”
Manitoba Attorney General Andrew Swan predicts support for abolition will grow as people realize reform is not in the cards. Still, he doesn’t believe a referendum is necessary; what’s needed is federal leadership to muster the unanimous provincial consent Manitoba told the Supreme Court is necessary to abolish the chamber.
“Frankly, I think any provincial government that wants to maintain the Senate will have to answer to their own public,” Swan said in an interview.
For his part, Mulcair said Senate abolition will be a key plank in the NDP platform for the 2015 election. Should the NDP win, it will have a clear mandate to pursue constitutional negotiations with the provinces, which would “give us a certain amount of sway.”
“These are meddlesome questions,” Mulcair allowed in an interview.
“But if we just cross our arms and say, ‘Oh, you know, it’s been difficult, nobody’s ever been able to get it done,’ then we’re going to continue to have a place that’s filled with party hacks, bagmen, defeated candidates who are an insult to Canadians’ intelligence and an insult to democracy.”
For Liberal Leader Justin Trudeau, promises to reform or abolish the Senate are disingenuous.
“I don’t think either of those positions are realistic because there isn’t a single Canadian out there who wants 10 years’ of protracted constitutional negotiations with the provinces,” he said in an interview.
Instead, Trudeau advocates what he terms practical changes that can be accomplished without reopening the Constitution – ideas like creating an independent body to advise on Senate appointments, less partisanship, televised proceedings and more transparency on expenses.
As it happens, Gibbins said the notion of an independent appointments commission was a “middle ground option” that found favour at the Manning Centre symposium among those who’ve given up on more dramatic constitutional reforms.
“I’m not convinced that 25 years down the road that Canadians would be happy having ... any sort of appointed body making fundamental decisions in terms of public policy,” Gibbins said. “But it might get us through the next 15 to 20 years as kind of an interim step and that’s attractive in itself.”
As for some of the other incremental changes Trudeau touts, senators may beat him to the punch as they struggle to salvage their institution’s reputation.
Stricter rules on expenses have already been adopted and many senators are already voluntarily being more open about their spending. At the Senate’s invitation, auditor general Michael Ferguson is currently conducting a comprehensive audit of each senator’s expenses.
The Senate is examining the best way to televise proceedings and cameras are expected to be installed in the august chamber as early as April.
Ironically, the expenses scandal may also end up returning senators to their intended role as practitioners of independent, sober second thought. Some Conservative senators are pushing back against undue partisanship after discovering, courtesy of RCMP documents filed in court, the degree to which the Prime Minister’s Office attempted to control the Senate, including interfering in an audit of Duffy’s expenses and whitewashing a Senate committee report on Duffy.
“There are young people in the PMO who thought that when the PM becomes PM, he becomes ... the big boss of the House of Commons and the big boss of the Senate,” groused Conservative Sen. Pierre-Claude Nolin after a recent caucus meeting.
“I think they have discovered that is not how things worked.”
Contact between the Senate leadership and the PMO has slowed down, Nolin said, “if not (come to) a full stop.”
Such relatively small steps may not be the kind of wholesale reform or outright abolition many Canadians want, but if the experts are right, it may be all there is.