The messy details of Senate reform

Paul Wells on C-7 and the political and legal storms bearing down on Ottawa
Chris Wattie / Reuters

They seem so far away now, the days when Pamela Wallin and Mike Duffy were just nice people on TV bringing you the news.

Now both of these former journalists are senators embroiled in an expense-account scandal that threatens to end their late-blooming political careers in disgrace. More important, the uproar over the Senate scandal threatens to bring down the entire upper house of Parliament, the stately red-lined chamber of what used to be called “sober second thought.”

Every new outrage fuels a growing sense that the Senate has run its course and is now engaged more or less full-time in self-parody: the personal cheque to Duffy from Nigel Wright, who promptly lost his job as Prime Minister Stephen Harper’s chief of staff for this odd gift to a man under intense public scrutiny; the lurid Deloitte audit into Wallin’s frequent, costly and mostly unexplained stopovers in Toronto on her trips between Ottawa and Saskatchewan; the questions over Mac Harb’s housing-expense claims, which got the Ottawa senator kicked out of the Liberal caucus.

The NDP, which has opposed the Senate’s existence for 50 years, spotted an opportunity in the uproar and has launched a “Roll up the red carpet” petition calling for the Senate’s abolition. The upper chamber has almost never figured so prominently in public debate about what it should do and how it should be composed.

That debate will only intensify, now that two high-profile court cases are about to delve into the messy details of Senate reform. It’s easy to wave one’s hands and say, “Shut the place down,” or, “Senators should be elected and equal,” or whatever other solution you might advocate. But abolishing, or even seriously reforming, the red chamber may be altogether more difficult than that. The Harper government has a bill before Parliament, C-7, designed to implement modest reform. Senators now serve until they turn 75; the bill would cut that to a single nine-year term. And where senators are now named by the Governor General on the Prime Minister’s advice—stripped of its constitutional niceties, that means they’re handpicked by the PM—the bill would seek to “consult” provinces by inviting them to hold elections to fill vacant Senate seats. Future prime ministers would be required to consider, though not necessarily appoint, the winners of such provincial elections.

That plan has met with widespread opposition from provincial governments and minority groups, who have long viewed the Senate as a place where allies might be found if they are few on the ground in the Commons.

Harper has long avoided a national debate on the function of the Senate. But he’s out of luck. A year ago, the Quebec government of then-premier Jean Charest challenged Bill C-7 with a “reference,” or a formal request for an opinion, to the Quebec Court of Appeals. Hoping to shut down Quebec’s reference, the federal Conservatives sent a reference of their own to the Supreme Court of Canada in February. But the Quebec court ignored a request from federal Justice Department lawyers to suspend their reference while the highest court considered similar questions. Both cases will go ahead, almost simultaneously.

That was only the first setback the Harper government faced. Federal lawyers asked the Supreme Court to skip oral arguments, claiming that everything that could possibly be said about the Senate has already been said. The Supremes laughed that claim out of court. There’ll be oral arguments up the wazoo—from every provincial government in Canada, as well as two sitting senators (Anne Cools and Serge Joyal) and a few special-interest groups, to boot.

That means the Senate will occupy all three rings of an unprecedented political and legal circus this autumn. In the centre ring will be the show you know, the continuing political drama in Parliament. In the second ring, a Quebec Appeals Court hearing room in Montreal on Sept. 10 and 11, when lawyers from Ottawa, Quebec City and several other jurisdictions will argue Quebec’s Senate reference. Finally, at the stately art-deco Supreme Court building on Wellington Street in Ottawa, from Nov. 12 to 14, many of the same legal characters will convene again to argue the federal reference before the ermine-clad justices of the country’s highest court.

Already, written legal arguments from the main protagonists are starting to arrive at the two courts in dozens of spiral-bound volumes. An examination of the arguments suggests almost every intervenor in both cases will be taking direct aim at Harper’s claim that he can substantially amend the Senate without consulting provincial governments. As for abolishing the Senate outright, several participants in the Supreme Court reference are arguing it cannot be done without the unanimous approval of every provincial government, as well as Ottawa.

The federal case, contained in a 60-page “factum” written by three Justice Department lawyers, of course argues that Bill C-7 is constitutional. Provincial votes to designate senators would be only “consultations,” the federal lawyers argue, not real elections that would bind a prime minister to appoint the person elected. And replacing senators-’til-75 with nine-year senators would be a minor change with no need for provincial input.

Not true, says just about anyone else involved in the cases. Ottawa’s main antagonist is Quebec. Though it is now led by Charest’s successor, Pauline Marois of the Parti Québécois, the province’s government is making precisely the same case it made when the provincial Liberals were in charge.

“The attorney general of Quebec considers that Bill C-7—by reducing the length of senators’ mandates and adding an electoral process—changes the Senate’s fundamental characteristics and its role,” Quebec’s written factum in the Court of Appeals reference says. “In fact, this bill considerably reduces the Senate’s independence and alters its ability to act as a counterweight to the House of Commons.” Because shorter terms and elected senators would represent such a big change, Quebec argues, Parliament alone can’t implement that change. Ottawa would need the approval of at least seven legislatures from provinces representing at least half of Canada’s population.

Ottawa’s lawyers say this is nonsense, that an elected and date-limited Senate will be close enough to the old one that provincial governments won’t need to trouble themselves with getting involved in the change. Quebec’s lawyers reply: Why, then, were such changes only ever discussed in full-blown federal-provincial conferences until Stephen Harper became Prime Minister?

Ottawa’s lawyers, continuing their attempt to low-bridge the whole exercise of Senate reform, argue that any Senate election would be merely a “consultation” that would not bind any prime minister in his advice to the governor general. Quebec’s lawyers blow this claim out of the water. Bill C-7’s own subtitle calls it “an Act respecting the selection of senators,” they note. And they list a stack of quotations from Harper and federal press releases stating that the government’s aim is to permit direct election of senators. So it’s a bit late for Ottawa to claim it has no intention of electing senators.

To back its claims, Quebec has filed expert opinions from four political scientists. (Perhaps ironically, given the sovereignist credentials of the Marois government, all four are Canadians from provinces outside Quebec.) David Smith, from the University of Saskatchewan, calls the Senate “a key feature of the political compromise on which the Canadian federation is founded.” Because electing senators for short terms would “affect fundamental features of the Canadian parliamentary system,” the changes “should not be allowed to be enacted unilaterally by the federal Parliament,” Smith says.

We could go on. Armies of lawyers certainly will, in Montreal in September and again in Ottawa in November. Harper’s relationship with Senate reform has been curiously distracted and on-again, off-again. Bill C-7 is the eighth attempt to change the composition of the Senate that the Conservatives have introduced since they were first elected seven years ago. Previous attempts went nowhere. Meanwhile, the Prime Minister has held only one formal meeting with all his provincial counterparts as a group, in November 2008. He has hoped he could either delay reform indefinitely, or get it done without having to listen to anyone else. This autumn’s assorted gathering of political and legal storms seems designed to give those hopes a rough ride.