As the trial of Senator Mike Duffy continues and as the Senate reels from the revelations of a broader pattern of misuse of public funds by its members, Canadians will eventually have to confront the question of what to do with our chamber of sober second thought.
For its part, the Supreme Court has made it abundantly clear that abolition requires the unanimous consent of the federal and provincial governments and any significant change to the Senate’s powers or structure must be done through a constitutional amendment. Furthermore a court case that would compel the prime minister to fill vacancies in a reasonable time continues to work itself through the system.
It would appear that Canada has two options when it comes to the Senate. We can keep it as it is and hope that we can clean it up such that it is less of a national embarrassment. Or, we can actually think about what an effective and useful Senate might look like and amend the constitution accordingly.
Any model for a reformed Senate should focus on the Senate’s original purpose. First, it was supposed to provide provincial representation in Parliament, something upper houses do in every federation in the world. This is, I believe, crucial in a country as large and as diverse as Canada where majority governments in the House can be quite regionally unbalanced. The second is the oft-mocked idea of providing “sober second thought” on legislation passed by the House. Unlike other upper houses, the Senate was not conceived as a competitor to the House but as a place where legislation could be given another examination, with perspectives perhaps not heard in the House brought to bear. Again, this is an important principle worth reinforcing in a reformed Senate.
As a caveat on those roles I would argue that a reformed Senate should not wind up replacing the legitimate role played by the premiers in national politics. Canada has had a strong tradition of ministerial and first minister intergovernmentalism that has served us generally pretty well. The direct election of senators could usurp that role and create competition between the House and the Senate that is best avoided.
To provide voice for the provinces, I would start with the idea that a province’s Senate representation should reflect the politics of that province, not the politics of the prime minister. Thus, a province’s Senate delegation should change as the politics of the province change, not as the occupant of 24 Sussex changes. In short, a provincial Senate delegation should look something like the provincial legislature. For example, as of May 24th, Alberta’s senators should be mostly New Democrats, not entirely Liberals and Conservatives.
We could achieve this by tying Senate appointments to provincial election results. Following an election the province’s Senate delegation would be divided between the parties relative to their representation in the provincial legislature. Assuming six senators (as is currently the case), Alberta’s Senate delegation would be three New Democrats, two Wildrose and one Conservative. Those senators would serve until the next provincial election when their distribution could well change.
This would give different political parties within each province some voice in Ottawa relative to their political strength. And those senators would owe their position to both their provincial party and, indirectly, to the voters of the province. In this way, the crucial role of the premiers in federal-provincial relations would not be undercut as it might be if senators were elected.
Senators could caucus however they wished. Conservative-minded or progressive-minded senators might flock together on many issues, but they would owe their position to their provincial government or party, not to the prime minister in the House. And that’s a very different and, in my view, positive dynamic to have in the upper house.
Thus, the alliances in the Senate could well be far more fluid and flexible than they are currently. It would be incumbent on the government in the House of Commons to pay some significant attention to how legislation will play in the Senate in order to ensure a bill’s passage.
And given the likely fluidity of the alliances in the Senate and the fact that it would remain an unelected body, it would be crucial to limit the powers of the Senate relative to the House. It should be able to amend, delay and advise, but ultimately it should not be able to permanently block legislation. It could actually provide sober second thought on legislation without the risk of the kind of deadlock we see in the current U.S. Congress.
Such a model, or some variant of it, would certainly require constitutional change to put into effect. But any reform of any real significance likely will also require us to open the constitution for amendment. To pretend there is a non-constitutional path to real Senate reform is disingenuous at best.
In the end, such a Senate would actually reflect the provinces as they are, not as the federal government would like them to be. The provincial delegations would themselves reflect at least some of the different voices in their province. And the public would have the opportunity to express some views about the appropriateness of those selected to serve and to hold their provincial party accountable for their choices.
National Post
Tom McIntosh is head of the department of politics and international studies at the University of Regina.