Senate reform is imperative – and a practical impossibility

<spanlang=”EN-US”>Senate reform is imperative – and a practical impossibility

<spanlang=”EN-US”>By Nelson Peters

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<spanlang=”EN-US”> “We are certain to have ample time to discuss the question, but there is one thing that I do believe, and that is that it will not be found possible for the existing method to continue very long, and that we will do well to set our House in order, and as fast as we possibly can.”<spanlang=”EN-US”>
<spanlang=”EN-US”>- Senator Richard Cartwright, from an address concerning the Reform of the Senate, Ottawa, May 17, 1906

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<spanlang=”EN-US”>Why hasn’t Stephen Harper reformed the Senate?

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<spanlang=”EN-US”>For one thing, the current minority status of his government poses an obstacle. The Conservatives stand alone in their proposal to reform the Senate; the Bloc and NDP favour complete abolishment of our Upper House, while the Liberals desire the status quo. However, even with a majority Tory government, the chance to substantially effect Senate reform is practically impossible.

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<spanlang=”EN-US”>Historically the Senate has always been awkwardly positioned atop Parliament Hill. The Canadian founding fathers compromised by assigning the Senate the role of “regional representation.” In this way each of the three founding regions (Ontario, Quebec, and the “Maritime provinces”) were assigned an equal number of seats. However, as Canada grew into its nationhood, seats were added on an ad hoc basis, resulting in a grossly lopsided representation. According to the current setup, a Senator from New Brunswick represents roughly 73,000 citizens, whereas an Ontario Senator represents around 500,000, and a British Columbian a staggering 685,000. In proportionate terms, a citizen in Nova Scotia has about six times as many Senators to represent their interests compared to an Albertan. Clearly, something is amiss.

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<spanlang=”EN-US”>Despite a general recognition that this is unreasonable, the Senate has resisted change since its inception. Although many reasons exist, the current impasse can be mostly attributed to the strict requirements of the formula for Constitutional amendments. There have only been two bona fide attempts to use this formula, namely the Meech and Charlottetown Accords, both of which serve to illustrate the complexities involved with this process.

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<spanlang=”EN-US”>In 1984 Prime Minister Brian Mulroney was elected with the largest majority in Canadian history, including a solid majority of seats in Quebec. Mulroney made large gains by courting Quebec nationalists such as Lucien Bouchard with the promise to “bring Quebec back into the family of Canada” by obtaining the province’s approval for the Canadian Constitution.

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<spanlang=”EN-US”>According to the Constitution and its “7/50” rule, an act to amend the Constitution, including any change to the powers of the Senate, requires the approval of the House of Commons as well as two-thirds of the provinces that comprise at least 50% of the country’s population. However, an amendment regarding subjects such as the role of the Queen and the amending formula itself require the unanimous consent of the House of Commons as well as every single provincial legislative assembly.

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<spanlang=”EN-US”>With this in mind, Prime Minister Mulroney gathered the ten premiers together at an exclusive resort at Meech Lake; they hammered out a deal that included a constitutional veto for Quebec, increased provincial power over immigration, financial compensation for provinces that opt out of federal programs, a guarantee for three judges from the Quebec Bar on the Supreme Court of Canada, as well as the infamous “distinct society” clause.

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<spanlang=”EN-US”>Since implementation of these demands included changes to the composition of the Supreme Court, section 41 was invoked—the clause that required unanimous support of all provincial governments. Still, Mulroney was able to get the signatures he needed.

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<spanlang=”EN-US”>So how did it fail?

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<spanlang=”EN-US”>According to the constitution, at least one year (but no more than three) must pass after the amending resolution is initiated and when it can enter into law. During the year that followed, questions arose regarding the circumstances of the Accord, which had largely been a closed-doors affair. Canadians were uncomfortable with having such fundamental constitutional change made without democratic public consultation. Of more consequence, several of the provincial governments that had agreed to Meech lost elections and were replaced with new governments that were less receptive to its terms.

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<spanlang=”EN-US”>With these concerns and others in mind, New Brunswick Premier Frank McKenna revoked the consent of his province, as did Newfoundland Premier Clyde Wells soon after. Only days before the deadline Mulroney again assembled all ten Ministers for another try. Although an agreement was reached in principle, including a timetable for reforming the Senate, this time it was the Manitoba legislative assembly that refused to ratify the new Accord; readers may recall Elijah Harper’s waving an eagle feather as a sign of dissent on behalf of Native people and their lack of participation in the amendment process. The government of Newfoundland subsequently cancelled a free vote in their legislature, which likely would have led to the same result. A few weeks later, Meech officially died.

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<spanlang=”EN-US”>Prime Minister Mulroney returned to the drawing board and penned a new agreement that took into consideration some of the concerns raised during the debate over Meech, in particular involving public consultation and providing better representation for minorities. Chief among the new proposals was a plan for Senate reform.

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<spanlang=”EN-US”>The Charlottetown Accord proposed that each province receive equal representation in the Senate (six seats each and one for each territory), with provisions for the future election of Native Senators. Furthermore, it gave the power of control of the selection of Senators to the provinces, which allowed for the possibility of elections.

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<spanlang=”EN-US”>In a bid for democratic legitimacy, Mulroney submitted the Accord to a national referendum. In the meantime, Saskatchewan and British Columbia passed laws requiring a referendum on any future Constitutional amendments. The Charlottetown Accord received support from many notable persons, almost every newspaper, and intellectuals as well as interest groups. However, in October 1992, a majority of Canadians voted against it.

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<spanlang=”EN-US”>The Charlottetown Accord remains a controversial subject. Admittedly it would have constitutionalized an inordinate amount of political influence for Quebec, most significantly through a guarantee of at least 25% of the seats in the House of Commons. Furthermore, the “distinct society” clause and provisions for Native rights to self-government threatened to balkanize Canada along ethnic or cultural lines, and offended the egalitarian ideals of Western Canadians.

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<spanlang=”EN-US”>Still, Charlottetown included many interesting propositions that could have reinvigorated the state of the Canadian federation. In addition to a reformed Senate it included proposals to address the fiscal imbalance between the federal and provincial governments, exclusive provincial jurisdiction over matters such as natural resources, mining, and cultural matters, as well as new criteria for interpreting the Charter of Rights and Freedoms. Indeed, many of the issues that Charlottetown addressed, for better or for worse, continue to dominate our political agenda. In many ways Canadians are still living in the political half-life of its failure.

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<spanlang=”EN-US”>In the wake of the subsequent political revolt, which included the formation of the Bloc Quebecois, Prime Minister Jean Chretien’s Liberal government passed the Act Concerning Constitutional Amendments, better known as the “Regional Vetos act”. This law gave the power of veto for any future constitutional amendments to each of the following regional groups: British Columbia, the Prairie provinces, Ontario, Quebec, and the Atlantic provinces. In practical terms, this only complicated the process. The new powers of veto meant that the “7/50” rule became more like “7/90”. Combined with the additional requirement for referendums as a result of provincial laws and precedent, any proposal for a constitutional amendment is regarded as political suicide.

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<spanlang=”EN-US”>In light of these concerns, Prime Minister Harper’s government has pursued a policy of incrementalism through proposed age and term limits for Senators. However, with each attempt he moves closer to the crevasse that descends into the political quagmire of the amendment formulas.

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<spanlang=”EN-US”>Ultimately any modification to Canada’s Constitution has to conform to a standard for consensus that would require the approval of provinces and regions that stand to lose political influence, in addition to unprecedented levels of public approval, which simply is not feasible at present.

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<spanlang=”EN-US”>Although Harper has demonstrated continued support for Senate reform, the sad truth is that any substantial proposal to do so would be, for all practical purposes, impossible—without or even with a majority in Parliament.

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