Harper’s Gitmo: The Sisyphean Task of Senate Reform

One of Barack Obama’s first official acts as President of the United States was to order the detention facility at Guantanamo Bay closed by the end of 2009. Closing “Gitmo” had been more than just a campaign promise for Candidate Obama. It was the essence of his moral case against the Bush Administration. The prison was a symbol of everything that American progressives hated about the Global War on Terror. Rendition, torture and waterboarding all connected back to Gitmo, a relic of American imperialism where people could be detained indefinitely, beyond the reach of American habeas corpus. Closing it, said President Obama, would “restore the standards of due process and the core constitutional values that have made this country great even in the midst of war, even in dealing with terrorism.”

More than six years later, Gitmo remains stubbornly open.  The headcount is down only slightly as a handful of detainees have been released to other countries.  The US courts and the US Senate have erected insurmountable roadblocks to shrinking let alone shuttering the facility.  The 2008 economic crisis, day to day events and the pressures of national security pushed Gitmo further and further down his governing agenda.  Today the President must feel frustrated.  His moral case is in ruins, and his progressive base is deeply disappointed.

Prime Minister Stephen Harper must have similar frustrations about the Canadian Senate. He came to office in 2006 with just as strong a commitment to reforming it as Obama did to closing Gitmo. It was an article of faith for his western political base. But his reform efforts have been frustrated at every turn, by Parliament and the courts. Will he give it one more try before his time is up, or will Senate reform defeat him as it has so many of his predecessors?

The Senate has long been a symbol of all that alienated westerners from central Canada.  It was a by-word for patronage, backroom dealing, and Ottawa’s insensitivity to regional interests.  The call for an elected, equal and effective “Triple E” Senate was prominent in the Reform Party’s first policy book. Nearly 20 years later, in the 2006 election, the Conservative Party of Canada led by Stephen Harper promised a two-part effort at repairing the Senate, beginning by “creating a national process [to choose] elected Senators from each province and territory” and then continuing with “further reforms to make the Senate an effective, independent, and democratically elected body that equitably represents all regions.”

Then came the hard part.

As Prime Minister, Harper has carefully avoided the enervating federal-provincial high wire acts of Brian Mulroney (the Meech Lake and the Charlottetown Constitutional  Accords) and Paul Martin (“transformative accords” to fix things for a generation).  But by taking incremental steps that are within the power of Parliament acting alone, he has successfully neutralized some of the most difficult issues on the constitutional agenda.  In the fall of 2006, Harper deftly co-opted a Bloc Quebecois invitation to have the House of Commons define the role of the Quebecois in Canada and presented a motion recognizing that the Quebecois form a nation within a united Canada.  It passed easily and closed a sore that had been festering since the “distinct society” debate of the Meech Lake era.  On another issue left open since Meech, the Harper government has repeatedly committed itself to limiting the federal spending power.  The 2007 budget put an end to the “fiscal imbalance” debate with a comprehensive reform to federal-provincial transfer payments. In 2008 Harper shuttered the popular Millennium Scholarship program. And in 2011, he resisted pressure to impose new conditions on federal transfer payments for healthcare. Canada’s reward for this quiet activity has been a historic decline of separatism in Quebec.

Harper’s approach to Senate reform started out with the same incrementalism.  A few weeks into its first Parliament, the new Conservative government introduced Bill S-4, a proposal to shorten the tenure of new Senators to a fixed eight years. It had already been shortened once before, in 1965, to age 75, and the plain text of the 1982 constitutional amending formula allowed Parliament to make this change without involving the provinces.  Bill S-4 was introduced in the Liberal-controlled Senate, challenging Liberal parliamentarians either to cooperate or vote down any hope of reform.  The Liberals handed the bill to a special Senate committee chaired by their Senate leader and noted reform moderate, Albertan Dan Hays.  Harper responded to this overture by asking to appear as a witness before Hays and his colleagues.  He would become the first sitting prime minister to testify at a Senate committee.

Harper opened his remarks by telling senators that appearing before the Committee in person “underlines my interest in Senate reform.”  What followed was in some ways prophetic:

“It has become a rite of passage for aspiring leaders and prime ministers to promise Senate reform on their way to the top … These statements of intent are usually warmly received by party activists, editorial writers and ordinary people but, once elected, Senate reform quickly falls to the bottom of the government’s agenda, nothing ever gets done and the status quo goes on…”

Next, he argued that the unreformed Senate was not acceptable to either his government or the Canadian public.  “Years of delay in Senate reform must come to an end, and it will.  The Senate must change and we intend to make it happen.”  Canadians “as we all know, are not satisfied with the status quo.”  Then, he argued the case for bicameralism.  “I believe in the ideas behind an upper house.”  Canada needs a Senate that provides “sober and effective second thought … gives voice to our diverse regions … with democratic legitimacy.”  Fourthly, he said he was flexible about the details of Bill S-4. He indicated he would consider amendments to set the tenure for senators at six years, as recommended by the Beaudoin-Dobbie Report, or nine years as proposed by the Senate’s own Molgat-Cosgrove report. But neither he nor the Canadian people, he said, would continue to tolerate terms lasting as long as 15, 30 or even 45 years.

The key to Bill S-4, in his view, was that it “go[es] somewhere, somewhere reasonable and somewhere achievable.”  Proceeding with S-4 would unblock the reform agenda and set the stage for a second bill, to be introduced in the House, that would  “create a process to choose elected senators.”  The Hays Committee went on to hear from a wide range of legal and constitutional experts.  In October, 2006, it reported that, in the view of most committee members, Bill S-4 was clearly constitutional and that a defined limit to the tenure of senators would be an improvement over the status quo.

Hays’ careful language probably papered over divisions in the Liberal caucus.  But when Hays put his name to supporting Bill S-4 in principle, he opened room for Harper and the Liberals to reach a compromise once the Liberals elected their new leader.  And only a few days after Stephane Dion prevailed on the fourth ballot, Harper made his next move.  The government introduced Bill C-43, a bill to allow a prime minister to call an election before appointing senators.  C-43 was carefully crafted to avoid amending the text of the Constitution.  Nothing in the bill tied any prime minister’s hands – a vote was not required before appointing senators and the prime minister could ignore the results of a vote.  The constitutional legitimacy of advisory elections had been established when Mulroney appointed Stan Waters, winner of Alberta’s inaugural Senate election in 1989. But the fate of the bill was in the hands of the House of Commons, where the Liberals, NDP and Bloc together held a majority of seats.

Dion was no stranger to the issues at stake.  He had spent a dozen years as a political scientist and seven as minister of federal-provincial relations before becoming Liberal leader.  In early 2007, he spoke out on Bill S-4, criticizing it in harsh terms, but also indicating he would support the bill if it limited senators to a term of 12 or 15 years instead of just eight.  Harper was already on record rejecting a 15-year term, and a 12-year term was not supported by any of Parliament’s previous reports on the subject.  Conservatives didn’t know what to make of Dion’s mixed message, and decided to see if he was flexible.  After all, an early compromise on Senate reform would have helped Dion neutralize any suggestion that the Liberals were wedded to patronage or old-style politics.

Harper immediately engaged in high level negotiations but they fell apart as quickly as they began.  Conservatives concluded that Dion’s olive branch was insincere, especially after the Liberals referred Bill S-4 to the Senate Committee on Legal and Constitutional Affairs. Dion had replaced Hays as Liberal leader in the Senate with the hardliner Celine Hervieux-Payette, and under her leadership the Committee renounced the Hays Committee’s report. Instead, Liberals now demanded that the constitutionality of Bill S-4 be referred to the Supreme Court before any further debate. The Liberals gave no quarter on Bill C-43 in the House, either.

The momentum behind Senate reform was waning. The economy started to wobble in mid-2007 and then, a year later, slid into a deep crisis. After the 2008 federal election, the Harper government’s agenda for democratic reform changed. Eliminating the quarterly per-vote subsidy to federal parties and improving representation by population in the House took priority over Senate reform.  Ending the vote subsidy so riled the opposition parties that it ended the possibility of compromise on any kind of democratic reform, and the government’s focus soon shifted to confronting the economic crisis.

Harper put Senate reform further behind him during the 2008-09 prorogation episode when he appointed 17 Conservative Senators. He would go on to appoint another nine over the course of 2009.  And he did not stop when the government had a majority in the Senate.  He kept appointing Conservatives and as of writing has appointed 59 Senators in total, including four elected ones.  Even with a majority in the Senate, Harper did not call S-4’s successor bills for a vote.

Most of Harper’s appointees were highly qualified Canadians from many walks of life. Many had little or no connection to the Conservative party. He appointed a university president, a retired police chief, and a famed hockey coach.  He appointed business leaders, philanthropists and former provincial and territorial politicians.  He appointed the first Canadian senator of Korean descent, a successful tradesman and an Olympic gold medalist.  And, of course, he appointed Pamela Wallin, Mike Duffy and Patrick Brazeau.  Each had merits as public figures, but when their failings as Senators (and human beings) were revealed, the Conservatives were doomed to own them. It hardly mattered that a prominent Liberal Senator was also at the centre of a scandal and criminal charges.  Harper had three.  He had appointed them, and he had to deal with the outrage over their actions.  The status quo in the Senate, which Harper correctly labeled “unacceptable” in the fall of 2006, was catching up to him.

In February, 2013, in the face of the Quebec government’s constitutional challenge to his Senate legislation, Harper did what the Hays Committee had said he did not need to do, and referred the question of Senate reform to the Supreme Court.  Harper had appeared before the Hays Committee in person, but six years later he did little to draw attention to the reference, and did not even send his Attorney General to argue the case. The Supreme Court put the case on a slow path, and did not come to a decision until April, 2014.

That decision ignored the plain language of the Constitution on who had the power to change the Senate.  The Court invented new rules out of whole cloth, arguing that changes to the tenure of senators would change its very essence as an upper house and require provincial consent.  Even giving the prime minister of the day the option of asking voters who should represent them in the Senate was beyond the powers of Parliament.  The Court gave Harper no room to proceed with even his first incremental reforms.

The decision was a rebuke not only to the government but to the majority of the Hays Committee and to other Senate committees on the topic since 1982.  The decision clearly implies that the appointments of Stan Waters, Bert Brown and other elected senators were unconstitutional.  It is not even clear whether the 1985 amendment to set the Senate’s retirement age at 75 could pass muster under the Court’s new rules.  Harper responded to the Court by announcing he would not propose any further constitutional amendments.  Instead, he would focus on minimizing the cost of the Senate.  Since then he has allowed the seats of retiring senators to sit vacant.

With Harper’s Senate reform agenda in limbo, Liberal leader Justin Trudeau stepped into the vacuum, ejecting Liberal senators from his party’s caucus and promising, if elected, to implement an “open, transparent and public process for appointing and confirming Senators.”  It’s hard to see how these reforms will really change the status quo in the Senate, but they will force Harper’s hand.  The Conservative leader cannot go into the next election ceding the issue of Senate reform to the Liberals.

What might a renewed Harper Senate reform agenda look like?  Abolition must surely be a temptation, given all the headaches it’s caused him. He first publicly broached the subject in a 2007 speech to a joint session of the Australian Parliament, saying that if the Canadian Senate could not be reformed, it must, like the old upper houses of the provinces, vanish.  But the Supreme Court ruled that the Senate cannot be abolished without the support of every province.

Still, he will have chances to make small changes. When the Auditor General reports on senators’ expenses in early 2015, Harper can take a hard line on whatever horrors come out. He could commit, ahead of its release, to forcing expense-abusers out of the Conservative caucus and, for the ones he appointed, call on them to resign after they have served the eight year term he envisaged anyway.  He could also use the report to slash the Senate’s budget, especially travel and housing expenses.  He could then formalize his de facto moratorium on Senate appointments and make it an issue in the next election.  He can hardly run the risk of appointing another profligate to the upper house, and formalizing the moratorium would draw a sharp distinction between his approach and Trudeau’s.  Some observers suggest that refusing to appoint senators would impair the Senate’s ability to function and raise the possibility of the Supreme Court or the Governor General forcing the matter. This wild speculation is silly, because even with anticipated retirements, the Senate will be able to function quite comfortably for at least four years after the next election.

Or he could take up the Supreme Court’s challenge. The election of constructive federalist Philippe Couillard as Premier of Quebec opens up new possibilities for constitutional reform.  They could use simple resolutions of the House, the Senate and the National Assembly to abolish the antiquated rules governing Senate appointments from Quebec in section 22 of the Constitution Act, 1867.  These require one of Quebec’s senators to be appointed for the 24 original electoral divisions of Lower Canada and thus prohibit the appointment of senators covering the northern portion of the province.  The Supreme Court would be hard-pressed to say that amendment would change the essence of the Senate.  The Court also opened the door to quick action to abolish the property qualification for Senators.  Harper could press the premiers to move quickly on that reform as well.

And then, if these amendments passed, Harper and Couillard could, together, propose a constitutional amendment that simultaneously recognized the Quebecois as a nation within a united Canada, shortened the tenure of senators and provided for Senate elections.  If that did not succeed, they could present an amendment to recognize the Quebecois nation and abolish the upper house.  These are obviously long-shot possibilities, but if they successfully pressed the other provinces to ratify either amendment, they would simultaneously achieve Senate reform and constitutional reconciliation with the Quebec, and go down in the history books as the greatest constitutional reformers since Confederation.

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Ian Brodie is a long-time Senate reformer and participated in some of the history outlined in this article.  He is now Research Director at the University of Calgary School of Public Policy.  The views expressed here are his alone and do not necessarily represent those of his employers, past or present.

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