Slaying the Senate

Stephen Harper has joined Tom Mulcair in calling for the abolition of the Senate, unless a program of substantial reform can be agreed with the provinces.

Up until last week’s announcement, Mulcair has enjoyed being the only leader to call for an end to an unloved institution.  He promises to put lots of effort into the topic, but does not address some awkward practical questions.

The Supreme Court has said that it requires the unanimous agreement of all the provinces. That is not going to happen. Quebec has said they will not support it. Nor will the Maritime provinces, which have only 5% of Canada’s population—but 24 out of 105 Senate seats. Cajoling is unlikely to change their position.

In the meantime, there are a large and growing number of empty seats in the Senate. None of the existing senators is instinctively friendly to NDP policies. If Mulcair makes no appointments, the Senate could make an NDP government’s parliamentary agenda much more difficult to accomplish. Eventually he, like Harper in 2009, would bow to the realities of the situation

Justin Trudeau’s position is in closer touch with constitutional realities. Acknowledging that substantive change is difficult, he promises to “put in place an open, transparent, non-partisan public process for appointing and confirming senators.”

If only life were that simple. Having been removed from the National Caucus of the Liberal party‎, the senators were faced with a choice. Under the Senate’s rules, senators can self-identify as independent or as members of a political party recognized by Elections Canada. They chose the latter and sit as a Liberal caucus.

Trudeau has decreed that his MPs must adhere to his position on abortion, on the grounds that anything else would violate the charter of rights. Suppose the non-partisan process he advocates produced a nominee with different views. Would he refuse the appointment and, if not, how would he explain the double-standard to his MPs?

Nevertheless, Trudeau’s ideas have more potential for achievable reform than the let’s-pretend-there-is-no-constitutional-problem position of Mulcair.

Until last week, the Conservative position was even less coherent than Mulcair’s.  Harper appointed enough senators to get a strong majority—and then stopped. Many of the appointments did not reflect well on his judgment.  He neither described a plan for abolition nor excluded the appointing partisans if re-elected.

Now, he says that he will put a moratorium on new Senate appointments, arguing that “It will force the provinces, over time… to either come up with a plan of comprehensive reform or to conclude that the only way to deal with the status quo is abolition.”

That is hardly providing leadership but, if he called a meeting to discuss the topic, the provinces would only want to talk about more money for health care, more money for education, more money for infrastructure, etc.

The moratorium on appointments strategy can operate for a long time—the senate only needs fifteen members to be present for a quorum.  But will the provinces be motivated to agree on proposals for reform?  Probably not. They have important things to worry about. Harper’s policy is more honest than Mulcair’s, but will not lead to a different outcome.

Given the constitutional straitjacket, there is no sure path by which reform or abolition can happen. The best chance would be to follow the recommendation of former Senator Hugh Segal. He argued for a “clear referendum on a clear question of abolition.”

If these words sound familiar, it is because they echo the judgment of the Supreme Court on the legitimacy of a referendum on Quebec separation. The court said that although such a referendum would not allow Quebec to separate unilaterally, it would require the rest of Canada to negotiate terms. 

Suppose there was a strong referendum vote in favour of Senate abolition—hardly as momentous a change as the separation of a province. The court would seem compelled by its own precedent to order the provinces to work something out with the federal government.

We are unlikely to hear a revival of Segal’s proposals during the election campaign. It is a complicated idea on a topic that is not a priority for many voters.

Mulcair can no longer claim to be the only one favouring abolition, and the hypocrisy of his position has become more obvious, so the issue may lose steam.  The parties will be positioning themselves to be able to talk about something else. If abolition or reform are to be seriously considered, it will not be during an election cycle.

As of August 1st, I have been appointed the inaugural chair of the Capital Markets Regulatory Authority, a cooperative effort of five provinces plus the Yukon and the federal government. It will provide an integrated structure to replace the patchwork of provincial and territorial securities commissions.

To become operational as planned in 2016 will require a great deal of preparatory work, as well as enabling legislation. It will occupy most of my time.

Writing these columns has added to my respect for those who do it for a living. It takes a long time to find a topic, do proper research, and compose a cogent text. Given the pressures of the new role, my columns will be less frequent for the next eight to twelve months.


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