As the Mike Duffy saga reaches its sad denouement, the more important issue remains: The federal government's efforts to reform the Senate are dead.
The Prime Minister can continue to chide opposition parties and provincial governments all he likes but the federal government's Senate reform legislation has always been ill-conceived. Provincial and opposition refusal to go along with the plan has been the only sensible response. Hopefully the Supreme Court will tell the Prime Minister as much when it renders judgement on the proposed legislation.
But we should not despair. There is a viable path to Senate reform. It begins by introducing a constitutional amendment to considerably limit the powers of the Senate, which legally are almost equal to those of the House of Commons.
Most Canadians understand the core problem: an un-elected Senate has no place in a modern democratic country. But many Canadians do not fully understand the related problem: Reforming the Senate through terms limits, elections or changes to the number of seats per province is almost impossible because of the need to secure widespread provincial agreement on constitutional reforms. Provinces' interests are too divergent on these issues to realistically expect provincial consent.
Federal parties all approach the conundrum of an apparently un-fixable illegitimate house of parliament differently. The NDP says we should just abolish the Senate, but this of course requires provincial consent that is unlikely to materialize. So the NDP's stance may be a useful communications position, but it does not represent a viable policy option.
The Liberals have called for reforms to the appointments process, which is certainly a credible position and would represent an improvement. An independent, merit-based process – like we have to some extent with judicial appointments – could be used to appoint Senators. This is a relatively easy fix that could be adopted today, but it would still do nothing about the problem of an appointed body at the heart of our democratic parliament.
The Conservatives' position – now articulated in Bill C-7 – is the least coherent. It would create a process for appointing elected senators, but does so through the backdoor because the federal government does not have the consent of the provinces.
A Senate composed largely of democratically elected Senators would fundamentally change the character of Canada's Parliament and the method of selecting senators. It therefore requires provincial consent.
That consent will not materialize. Today, the Senate does not really matter for decision-making. It does not exercise its considerable powers because it is understood that the House of Commons is the democratically legitimate house of parliament. So the fact that New Brunswick has ten seats in the Senate and British Columbia has only six is an oddity but not a big concern. It doesn't really matter because the Senate doesn't really matter.
But if the federal government empowers the Senate through elections, without changing other provisions, the Senate would start to matter. And why would New Brunswick ever give up any of its seats and its newly acquired power? And why would B.C. ever consent to a process leading to an empowered Senate where it is so significantly under-represented?
A half-reformed Senate is the worst of all possible options: Elected Senators claiming democratic legitimacy jostling with the House of Commons for power, as well as with the provincial governments over who speaks for provincial interests. And of course jostling with the Mike Duffys of the world who would continue in the same Senate.
A 'reformed Senate' with Atlantic Canada having more seats than Western Canada and with no mechanism to break deadlocks between the House and the Senate is truly a crisis-in-waiting.
But there is another path. Instead of empowering the Senate through elections – which renders subsequent change more high-stakes and contentious – why not do the opposite? Begin by limiting the Senate's considerable powers.
The federal government should consult with provinces and canvass whether there could be support for a constitutional amendment that would remove many of the Senate's powers, replacing them with a suspensive veto only. This would allow the Senate to delay but not block legislation.
The federal government could introduce this option as a constitutional amendment and invite the provinces to support it. If sufficient provincial consent could be secured, other issues – like elections, terms limits and the number of seats per province – would immediately become far less contentious and could be pursued at a later date. This path could also be undertaken with other non-constitutional reforms, such as a more independent, merit-based appointment process or the elimination of partisan caucuses in the Senate.
If further reforms proved impossible, the Senate would become even less relevant, with perhaps salaries, staffing budgets and resources reduced to reflect its constitutionalized subordinate status.
Federal efforts to reform the Senate have stalled. But there is a legitimate, transparent, constitutional path available. Let's reduce the Senate's powers. Who could object to that?
Matthew Mendelsohn is the director of the Mowat Centre at the University of Toronto and a former Ontario deputy minister of Intergovernmental Affairs. He recently released a paper, A Viable Path to Senate Reform?