A Double-E G-G?

By Colby Cosh - Saturday, January 7, 2012 at 2:57 PM - 0 Comments

In the journalism game, we call it “burying the lede”. Friday’s Postmedia papers have a column by Stephen Maher in which he waxes utopian about “modernizing” Canada’s monarchy by introducing an elected head of state. “Pfaugh,” I hear you say, “I’ve read it all before.” For the most part, you have. After all, most of the heavy lifting in the argument is done by the mere use of the loaded word “modernizing”; who’s against modernity? Maher chats admiringly about other countries (Jamaica and Ireland) for a few hundred words before letting fly with an easily-overlooked bomblet of originality:

If the prime minister is able to hold consultative elections to select senators—a question the Supreme Court may ultimately decide—then surely we could select our governor-general the same way.

My reaction to this idea was: “Good heavens, I suppose that’s right.” I’ve never heard anyone suggest it before, even in technical literature on the constitution. But like Senate elections, it would appear to be a natural consequence of responsible government: the prime minister can presumably use whatever process he likes—a reality show, a Ouija board, a lottery—to arrive at a candidate for recommendation to the Queen.

It’s hard even to count the things that would have to happen before it would be in some credible political leader’s interests to advocate an elected governor-general. But, then, it wasn’t political leadership that got the Senate-reform ball rolling in the first place.

A muddled Senate

By Aaron Wherry - Friday, October 7, 2011 at 2:16 PM - 15 Comments

Jeff Jedras notes Stephane Dion’s continued dissection of the Harper government’s Senate reforms, including the exclusion of federal parties from the proposed process. Meanwhile, an informal poll of academics in Alberta and British Columbia finds overwhelming opposition.

Professors contacted in the two provinces agreed by more than a 3-1 margin with the proposition that the reforms, aimed at ensuring senators are elected and limited to nine-year terms, are against their provinces’ interests. The legislation, being debated this week in the House of Commons, “scares me, to be honest,” said University of Calgary political scientist Tom Flanagan, a former senior Harper adviser.

John Geddes considers the massive questions left unanswered.

Senate reform: it’s Harper vs. the experts—again

By John Geddes - Friday, October 7, 2011 at 12:53 PM - 15 Comments

Peter O’Neil of the Vancouver Sun takes an enterprising approach in this story that bids to inject some life into the debate over the federal government’s Senate Reform Act. O’Neil surveyed professors at British Columbia and Alberta universities, and found that 18 of 25 who responded didn’t like the bill, which is now being debated in Parliament.

It’s telling, but not all that surprising, that political science and constitutional law profs don’t much like the government’s plan to limit Senate terms to nine years and set up an oddball system for non-binding elections (future prime ministers wouldn’t have to appoint the winners to the upper chamber, but would presumably face strong pressure to go along with the voters’ picks).

Continue…

Experts in B.C., Alberta don’t like Harper’s Senate reforms

By macleans.ca - Friday, October 7, 2011 at 12:30 PM - 7 Comments

An email survey of professors of political science, Canadian history and constitutional law at universities in British Columbia and Alberta found they stand opposed to the Conservative government’s plan to overhaul the federal Senate by a 3-1 margin. Of the 25 academics who got back to the Vancouver Sun on the issue, 18 said Harper’s legislation was against their provinces’ interests. The reform bill, which is being debated this week in Parliament, would limit senators’ terms to a nine years and set out a scheme for non-binding elections of future senators. Some professors objected to the possibility of the Senate becoming more powerful. Some protested against reforming the upper chamber without redistributing seats; based on their populations, BC and Alberta are grossly underrepresented in the Senate, whereas Ontario, Quebec and, especially, the Maritme provinces have many more senators per capita.

Vancouver Sun

The MP who has to talk about the Senate all summer

By Mitchel Raphael - Tuesday, August 23, 2011 at 9:20 AM - 2 Comments

Mitchel Raphael

Handy having an orthopaedic surgeon

Ontario Conservative MP Patrick Brown’s annual Hockey Night in Barrie continues to grow. Each year, the charity fundraiser for the Royal Victoria Hospital has MPs and NHL players sharing the ice for a game. This year (the fourth) raised almost $200,000 for the hospital’s cancer care centre. Current and retired NHL players this time included Ryan O’Reilly of the Colorado Avalanche, Bryan Little of the Winnipeg Jets, Luke Pither of the Philadelphia Flyers and Darcy Tucker. Also attending was Conservative MP Kellie Leitch (who beat Helena Guergis in the last election). The rookie MP would have been handy in an emergency: Leitch is an orthopaedic surgeon who has sports- injuries training going back to the days when she worked with the Toronto Argonauts.

Calgary Conservative MP Michelle Rempel (who took former cabinet minister Jim Prentice’s old seat in the last election) arrived at the game to support Brown and her fellow MPs. But when she got drafted as one of the coaches, she quickly rose to the challenge. (Last year, Stephen Harper put in an appearance and coached the same team.) Defence Minister Peter MacKay arrived with all his hockey gear but had to borrow one of Patrick Brown’s sticks. Most of the MPs present agreed that Brown is one the Conservatives’ best players.

Continue…

The U.S. debt-ceiling dance and Canadian Senate reform

By John Geddes - Wednesday, July 20, 2011 at 11:40 AM - 35 Comments

Much as I know it’s bad form to give away somebody else’s kicker, I can’t resist passing along the last paragraph of William Watson’s most recent (and typically excellent) column, which is about why Canadians (and Brits) shouldn’t feel all superior about their parliamentary system just because the U.S. way of government looks so dysfunctional during its current dance with debt default: Continue…

The Conservative in charge of fixing the Senate

By John Geddes - Monday, July 18, 2011 at 10:00 AM - 24 Comments

Adrian Wyld/CP

There’s no shortage of veteran politicians around Ottawa—not to mention party strategists, academic experts and even journalists—who can tell war stories about doomed efforts to reform the Senate. But Tim Uppal, a second-term Conservative MP from Edmonton, isn’t one of them. Before politics, he was a residential mortgage manager, community radio host, and coach of the traditional Punjabi sport kabaddi, which has been described as a combination of rugby, tag and wrestling. Maybe the last credential is what suggested to Stephen Harper that Uppal might have what it takes to be his secretary of state for democratic reform, the junior minister whose top priority would be to fight through inevitable resistance and finally make good on the promise to overhaul the Senate.

Uppal is spending his summer trying to build support for the Senate Reform Act, which was tabled in the House last month. The bill would limit senators, who can now serve until age 75, to nine-year terms. It would also encourage, but not compel, provinces and territories to hold elections that would produce lists of winners from which prime ministers would be expected to appoint senators. In an interview, Uppal took an upbeat, optimistic tone, and resisted being drawn into a detailed discussion of exactly how the revamped Senate would function. Pushed on just about any issue, he repeated his mantra: “The status quo is not acceptable.”

And Harper’s position does, in fact, boil down to saying something’s got to change—an unelected Senate, in which partisan appointees currently collect $132,300 a year, plus benefits, just can’t be allowed to stand. But the limited fix Uppal is assigned to promote is prompting predictable questions, the sort that have derailed many past bids at reform. If senators are to be elected, how will that change their relationship with the House? It stands to reason that they will feel emboldened to more often block legislation sent to them by MPs. And if democratic legitimacy makes the Senate more powerful, won’t that also make its regional imbalance a bigger problem? For instance, British Columbia and Alberta now have six senators each, while New Brunswick and Nova Scotia get 10 senators apiece.

Continue…

Canadians want Senate referendum

By macleans.ca - Wednesday, July 13, 2011 at 2:20 PM - 16 Comments

A large majority of Canadians support having a referendum that would decide the future of the Senate, according to an Angus Reid poll released this week. The poll found that 71 per cent of Canadians support having a nationwide referendum on the topic, while fewer than 10 per cent were against the idea. The rest were unsure. At the same time, 70 per cent of respondents indicated that they support eight-year term limits for senators, while 72 per cent said they support having an elected Chamber. Support for abolishing the Senate — something the Opposition NDP advocates — was less robust, with 34 per cent of respondents in favour of that idea. In June, the government introduced legislation that would implement nine-year terms for senators, and create an optional electoral framework for provinces to elect representatives to the chamber.

Montreal Gazette

A Senate if we must, but must we have a Senate?

By Aaron Wherry - Tuesday, July 12, 2011 at 12:37 PM - 6 Comments

It is obviously noteworthy that the Canadian public largely supports Stephen Harper’s proposed reforms to the Senate, but when the options are put side-by-side, the Canadian public is still relatively split.

Which of these statements comes closest to your own point of view?

Canada does not need a Senate, all legislation should be reviewed and authorized by the House of Commons 36%
Canada needs a Senate, but Canadians should be allowed to take part in the process to choose senators 40%
Canada needs a Senate, and the current guidelines that call for appointed senators should not be modified 5%
Not sure 19%

For that matter, as many Canadians support Stephen Harper’s calls for term limits and elections (70% and 72%) as support Jack Layton’s call for a national referendum (71%).

Dion positions Liberals with West on Senate

By macleans.ca - Tuesday, July 5, 2011 at 12:21 PM - 6 Comments

Former Liberal leader Stéphane Dion has waded into the debate on Senate reform, arguing that Prime Minister Stephen Harper’s plan to update the upper chamber is out of touch with his home province of Alberta and neighbouring British Columbia. In an op-ed article, Dion sides with B.C. Premier Christy Clark and former Alberta premier Don Getty, who have both voiced criticism of the federal Conservative plan. Harper wants to pass a law to limit Senators’ terms and encourage provinces to hold elections to fill their vacant Senate slots. Those votes would be voluntary and a prime minister would still have the final say on appointments. The Tory proposal does not tackle the current imbalance that favours smaller provinces, leaving Alberta and British Columbia with far fewer senators than their populations warrant. “Alberta has 9.1 per cent of members of Parliament, but only 5.7 per cent of the senators,” Dion writes. “The gap is even larger for B.C., with 11.7 per cent of MPs and only 5.7 per cent in the Senate.” The op-ed is written with the characteristic factual precision that first drew attention to Dion when he used cold, relentless logic as then-prime minister Jean Chrétien’s point-man on constitutional issues to become a constant annoyance to Quebec separatists. Now, as Liberal critic for democratic reform and intergovernmental affairs, he seems to be employing the same tone and technique to undermine Harper’s bid to overhaul the Senate.

Vancouver Sun

Our upper house of ill repute

By Andrew Coyne - Monday, July 4, 2011 at 9:30 AM - 40 Comments

Sean Kilpatrick/CP

The Senate is Confederation’s original sin, the great stain on the fathers’ handiwork, from which much greater evils have flowed. Structurally, it has contributed to the divisions and weaknesses that have bedevilled the federation. Without some constitutionally appropriate vehicle for expressing the concerns of the regions in federal politics, it has been left to the premiers, inappropriately, to do the job.

Worse, however, has been its corrosive effects, compounded over time, on our political ethics. It is of course intolerable that a free people should be governed, even in part, by those to whom they did not expressly grant such power. That would be true even if the Senate were filled with Solomons, and not the bizarre cargo of bagmen, strategists, failed candidates, criminals, cranks and other political problems that prime ministers have traditionally solved by the expedient of the Other Place.

Yes, some senators do good work. Committees of the Senate often produce thoughtful reports. But they have no more democratic right to translate their views into law, to move, amend, pass or reject bills and otherwise exercise the powers of legislators than I do. Though by convention the Senate’s powers are less than they appear on paper, they are still more than any patronage house should rightfully have, and have been exceeded on more than one occasion.

Continue…

Original sin

By Aaron Wherry - Wednesday, June 29, 2011 at 3:09 PM - 61 Comments

JJ McCullough blames the founding fathers for the Senate.

Canada is a living example of why constitution-writing is not a task to be taken lightly. The Harper government’s current efforts to carve a workable second chamber from the breathtakingly incompetent mess that the Fathers of Confederation devised nearly a century-and-a-half ago is a testament to just how intellectually uncurious and uncreative many of our nation’s supremely overrated founders were. Indeed, the entire Senate reform exercise really highlights the degree to which “Canada,” as a whole, is a fundamentally ungovernable creation under any political system except the uninspiring status quo. A country that cannot reform even its most universally reviled institution (only 5% of Canadians like the Senate as-is) is not a country that’s built on solid foundations.

Just say no, for various reasons

By Aaron Wherry - Tuesday, June 28, 2011 at 1:39 PM - 58 Comments

Stephane Dion explains why Alberta and British Columbia should rejected the Senate Reform Act.

This unbalanced distribution of Senate seats -a historical artifact -is a problem for the two western provinces and an anomaly of our federation; Stephen Harper’s reform would make the situation much worse. In the existing unelected Senate, this problem is mitigated by the fact that our senators play their constitutional role with moderation, letting the elected House of Commons have the final word most of the time. But in an elected Senate, with members able to invoke as much democratic legitimacy as their House counterparts -if not more, since they would represent provinces rather than ridings -the underrepresentation of British Columbia and Alberta would take its full scope and significance.

The case for leaving as is

By Aaron Wherry - Monday, June 27, 2011 at 1:15 PM - 0 Comments

Matthew P. Harrington argues against the currently proposed Senate reforms.

At present, the Senate is regarded as a deferential body, confining itself largely to amending or revising legislation passed by the Commons, largely because senators lack democratic legitimacy.

Once members of the Senate are themselves elected, however, there is little justification for their continued deference to the House. After all, a senator elected by an entire province arguably has a stronger mandate to govern than members of the Commons, who are sent to Ottawa by relatively small segments of the electorate. This would create increased opportunity for gridlock as members of the Senate and Commons disagree over legislation.

Saskatchewan Premier Brad Wall wonders about party discipline in an elected Senate. B.C. Premier Christy Clark says the Senate should be abolished, but if not, her province will need more seats.

This is the week that was

By Aaron Wherry - Sunday, June 26, 2011 at 4:18 PM - 0 Comments

The Conservatives were bashful. And mysterious. And succinct.

The House talked and talked and talked and talked and talked about sending Canada Post employees back to work. And then it stopped.

The government tabled the Afghan detainee documents. Which you can read more about here, here, here, here, here, here, here and here. Continue…

Harper facing mounting opposition on Senate reform

By macleans.ca - Wednesday, June 22, 2011 at 1:11 PM - 0 Comments

The Ontario government is speaking out against Prime Minister Stephen Harper’s Senate reform agenda, opening the door for a constitutional challenge of the newly tabled legislation. “We do believe it requires provincial consent to move forward,” Ontario Intergovernmental Affairs Minister Monique Smith told the Toronto Star on Tuesday. Québec has already served notice that it will issue a legal challenge of the reform bill, echoing Ontario in arguing that the provinces must be consulted in order for Senate reform to be legitimate. The federal NDP, as well as the governments of Ontario, Nova Scotia and Manitoba, feel the Senate should simply be abolished. Reports have also emerged that some Conservatives senators are opposing the reforms. Harper’s legislation would impose nine-year term limits on all senators appointed after 2008, and would create a voluntary framework for provinces to elect potential Senate appointees.

Toronto Star

Idea alert

By Aaron Wherry - Wednesday, June 22, 2011 at 12:03 PM - 0 Comments

The NDP’s Pat Martin wants to defund the Senate.

In the midst of a growing debate about the effectiveness of Canada’s Senate, New Democrat MP Pat Martin has moved that the nearly $60,000,000 in Senate program spending included in the budget’s Main Estimates to be voted on tonight be rejected. … “We might not be able to abolish the Senate without a constitutional amendment, but we can cut off its blood supply,” said Martin. “I’m sure Canadians would agree that this $59,490,350 could be put to better use than to offset the limited value of an unaccountable, unnecessary Senate.”

The reform party

By Aaron Wherry - Wednesday, June 22, 2011 at 10:40 AM - 35 Comments

Through Tim Harper, Progressive Consevative senator Lowell Murray explains his concerns with the current style of Senate reform.

Many otherwise productive senators of a certain age would likely do what he might have done, turn down a job that has only a nine-year lifespan, meaning he or she would have to search new work in their 50s. There would be the obvious tension of elected members working alongside appointed members, and, he says, the Senate becomes the elite body.

An Ontario senator would be elected province-wide and he or she would have a stronger mandate from more voters for a longer period of time than an MP from the province. Such province-wide votes would also be biased against northern and rural representatives and would favour candidates from large urban centres home to large media. It could also lead to U.S.-style gridlock.

Meanwhile, the Ontario government is thinking about joining a legal challenge.

That Senate reform bill: alive in the water

By Colby Cosh - Wednesday, June 22, 2011 at 5:25 AM - 0 Comments

In a recent dead-tree Maclean’s I gave a little preview of the constitutional issues that the government’s piecemeal Senate reform effort, now launched, will raise if it is brought before a court. Readers may not be aware that the nature of Senate elections was discussed very recently in the Senate itself—in March, when a Senatorial Selection Act (S-8) was briefly debated there. The provisions of that bill have now been incorporated into a schedule to House of Commons Bill C-7.

Today’s Star has a piece from Susan Delacourt in which scholarly all-rounder Ned Franks calls Senate elections “dead in the water” and “sure to get shot down by the Supreme Court”. I don’t want to call this a misrepresentation of the expert consensus, nor to challenge the stature of Ned Franks, but it seems to me that few other opponents of Senate elections are as confident as these quotes suggest. As I wrote, it is not clear exactly how much change Parliament is free to make to constitutional arrangements by statute alone. The Constitution Act text says that the 7/50 amending formula has to be followed before “the powers of the Senate and the method of selecting Senators” are changed. But under C-7, Senators are explicitly still appointed by the Governor-General as before. (“Senators to be appointed for a province or territory should be chosen from a list of Senate nominees submitted by the government of the province or territory.”)

Indeed, the flow of moral force through the text of the bill shows amusing evidence of judiciary-proofing. Look at section 2 of C-7:

2. The framework in the schedule sets out a basis for the selection of Senate nominees.

Key phrase, for the purpose of a future court test: “Senate nominees”, as opposed to Senators. The message to the courts is that we are not creating a formally elected Senate, but merely a means of bringing “nominees” to the attention of the Prime Minister. It’s an important distinction, also observed in s.3 of the bill:

3. If a province or territory has enacted legislation that is substantially in accordance with the framework set out in the schedule, the Prime Minister, in recommending Senate nominees to the Governor General, must consider names from the most current list of Senate nominees selected for that province or territory.

Key phrase: “must consider”, as opposed to “must accept” or “must recommend”. The bill is carefully keeping its toes within the boundaries set out by Peter Hogg in a discussion of a still earlier, failed Conservative reform bill:

…right now the Prime Minister could, if he wished, commission an informal poll as to the wishes of the electorate with respect to an appointment from a particular province. The Prime Minister could right now, and in fact has done, respect the choice of the electorate expressed in a provincial election, as we know has been done in respect of appointments from Alberta, where those elections have been held.

So all Bill C-20 does is make a formal consultation process available to the Prime Minister, should he choose to take advantage of it. As you will know, the Prime Minister does not need to take advantage of the consultation process if he doesn’t want to; the bill leaves that as a matter of discretion in the Governor in Council. If the Prime Minister does order the formal consultation process to take place, he does not have to respect the results in making recommendations for appointments.

I fully recognize… obviously a court would recognize that after Parliament has established the complicated process proposed by Bill C-20, no Prime Minister is likely to continue to make appointments in the old way. But I say that is a truth of politics, not a truth of law.

As crafty as those concluding words sound, I do not see how Hogg’s logic is assailable. I’m not an advocate of Senate elections per se. But Franks-style constitutional opposition to Senate reform requires acceptance of an absurdity: that otherwise qualified candidates for the upper house somehow become morally ineligible if they happen to have won a vote. The Constitution can and does stop people from entering the Senate solely by virtue of election. I don’t see how it can thwart a scheme for holding advisory elections that are binding only by virtue of the common regard in which we hold procedurally fair expressions of democratic sentiment.

Harper tables Senate Reform Act

By macleans.ca - Tuesday, June 21, 2011 at 3:36 PM - 4 Comments

The Conservative government has introduced its Senate reform legislation in the House of Commons, calling for nine-year term limits and detailing an optional election framework for the provinces. Under the Senate Reform Act, Senators appointed before 2008 will not be subject to the nine-year term limit. Instead, they will be able to remain in their seats until they turn 75. The bill includes a “voluntary framework,” where provinces can choose to elect senators when a vacancy is available. Prime Minister Stephen Harper reportedly wants to avoid a constitutional debate with the introduction of this legislation. Due to grumblings from the appointees in the red chamber, Harper compromised on his original proposal of an eight-year term limit, opting instead nine years.

The Globe and Mail

A non-binding, voluntary basis for encouragement to consider fundamental change

By Aaron Wherry - Tuesday, June 21, 2011 at 12:07 PM - 66 Comments

The government has now tabled its Senate Reform Act.

It would not require provinces and territories to implement consultation processes but would strongly encourage them to do so. It also demonstrates support for those provinces that have already undertaken legislation to establish such democratic processes. 

The Act includes a voluntary schedule, based on Alberta’s Senatorial Selection Act, which would set out a basis for provinces to enact democratic processes. 

The Act would not be binding on the Prime Minister or the Governor General when making appointments to the Senate.  However, it would require the Prime Minister to consider the recommended names from a list of elected Senate nominees when recommending Senate appointments. 

This is the week that was

By Aaron Wherry - Saturday, June 18, 2011 at 1:17 PM - 12 Comments

The House debated Libya and the meaning of regime change. The opposition demanded to hear from the President of the Treasury Board. Charlie Angus mocked Tony Clement. Then mocked him again. And again.

Jack Layton took his place in Twitter history. A former Liberal MP worried that Parliament wasn’t serving Canadians well. Ruth Ellen Brosseau was applauded. Elizabeth May dissented. Mr. Clement looked on the bright side and clarified what he meant by “anachronistic” and dismissed what he’d said about user fees. The ethics commissioner suggested a code of conduct for MPs. Peter Stoffer proposed a ban on floor crossing. The youngest MP in history made his maiden remarks. Continue…

Sober second thoughts

By Aaron Wherry - Thursday, June 16, 2011 at 9:15 AM - 9 Comments

Senators appointed by Stephen Harper with the expressed purpose of pushing through his reforms apparently aren’t entirely supportive of his proposals. And so Bert Brown, the nominally elected senator, steps in to remind his caucus mates to whom they should be absolutely loyal.

“Those of us who came to the red chamber were there to get a majority vote for reform. Those in the Senate before Harper became prime minister need to realize that, had he not made appointments, the Conservatives appointed by Mulroney would now be a very small group struggling to do anything!” Brown wrote in an email to all Conservative senators.

“Every senator in this caucus needs to decide where their loyalty should be and must be. The answer is simple; our loyalty is to the man who brought us here, the man who has wanted Senate reform since he entered politics, the Rt. Hon. Stephen Harper,” Brown wrote.

Senate reform goes centre stage

By Colby Cosh - Monday, June 13, 2011 at 10:35 AM - 12 Comments

Sean Kilpatrick/CP

Last week’s Throne Speech was expected to be bereft of surprises. As it happened, a cranky Senate page with a handmade sign ensured that the event wasn’t a complete bore. But there was another, subtler eyebrow-raiser in the works. Despite prior reports of Conservative caucus dissension over Senate reform, Governor General David Johnston’s scripted words expressed the Prime Minister’s determination to act fast on it. Reform “remains a priority for our government,” Johnston reported, promising to reintroduce legislation—thwarted by weighty Oppositions in the past—“to limit term lengths and to encourage provinces and territories to hold elections for Senate nominees.”

The Conservative plan to tweak the Senate without opening up a politically unthinkable Constitution-amending process seems about to take its long-awaited first step. And that implies a reignition of the debate over whether a prime minister can actually get away with such a thing. Quebec’s government is already threatening to haul the feds before the Supreme Court to block term-limit and Senate-election legislation. “If they try that, the Court is literally going to laugh at them,” says a confident Sen. Bert Brown, the Conservative reform advocate elected as an Alberta “senator-in-waiting” in 2004 and appointed to the upper house in 2007.

Constitutional scholars are unsure whether Brown is right. The government’s theory is that there is no “manifest conflict”—to use the phrase of Simon Fraser University political scientist Andrew Heard—between Senate elections and the text of the Constitution. The Constitution merely says that the governor general will “summon qualified persons to the Senate”; it does not say Parliament cannot invent new methods of making candidates available for his consideration.

Continue…