“By my count, that’s at least four provinces that seem to see some value in the Senate: Ontario, Quebec, Nova Scotia and Prince Edward Island. Only two provinces—Saskatchewan and Manitoba—are resolutely in support of abolition. Alberta, the only province to ever conduct Senate elections, is ambiguous.”
- Where the provinces stand on Senate reform, By Aaron Wherry, Maclean’s, June 12, 2015
After the suspension of three senators, the laying of criminal charges against one of those three and an Auditor General Report that questions the spending of 30 more senators, I think the Liberal Party needs to do more than just throw our Senators to the wind. I think we need to search for another answer. I think that the Alberta Liberals – both Federal and Provincial – need to push for Constitutional Reform.
Justin Trudeau has rightly pointed out that a part of the problem comes from the quality of Senators. Stephen Harper – unlike Mulroney, Martin, Chretien, Clark, Trudeau and virtually every previous Prime Minister – tried to turn the Senate into more than just a political weapon. Or put differently, most Prime Ministers used the Senate as it was intended: as a political shield. For, between 1864 and 1867, colonial negotiators, the British Privy Council and the British Colonial Office, talked about creating a Senate that would be both conservative in action and aligned with the long-term interests of the Government in Power. Consequently, the Senate was designed to be a short term brake against the House of Commons.
The Rt. Hon. Stephen Harper, though, tried to change that. Unlike, Mulroney – who accepted the Senate’s decision to stop any new abortion law from coming into force – or Chretien – who amended his terror legislation because of Senatorial oversight decided –, Prime Minister Harper decided to go one step further. For, unlike Mulroney or Martin, Mr. Harper tried to make the Upper Chamber a partisan chamber. Duffy, Wallin and Brazeau were appointed more for their ability to directly shape the political outcomes than as a partisan resource or a legislator. While, the Senate blocking climate change legislation or watering down bills might be seen as being in the tradition of the Canadian Constitutional History, the appointment of former candidates, so that they can build a political base, clearly is not. Neither was the appointment of Senators to create the conditions for an express Constitutional outcome or the attempts to break the committee system in the Senate. It was Prime Minister Harper that alleged that former appointments were tainted and ineffectual and that he alone could clean up and reform this Institution of Parliament. However, the outcome has been quite different because all he has left behind is a mess. Auditor General Michael Ferguson is calling for “transformational change” and I say that we take up that challenge.
Now to be clear, simply keeping to Justin Trudeau’s promise of appointing new and better Senators is not sufficient because regulatory or legislative reform will not bring about the transformative change that is needed. I could turn to a bunch of quotes, at this point, but I won’t. All we need to do is think about it.
Prime Minister Harper, for example, through a simple bill changed the way that Canadian bodies of water are managed. In 2012, “introduced as part of a 443-page budget implementation bill”, the Harper Government replaced the “Navigable Waters Protection Act, first introduced in 1882, with a new Navigation Protection Act covering a list of 97 lakes, 62 rivers and the three oceans on Canada’s coast.”
(Feds remove water protection from historic law, Canada.com by Mike De Souza, Published: October 18, 2012, 4:39 pm) Or put differently, according to NDP.ca, instead of covering 2.5 million rivers and lakes, the laws of Canada now just protect 159. Given that the Parliament of Canada gave permission to the Government to make such a radical change without much question, one could see a future Prime Minister reversing legislative change to get their own political desires met. For, this reason regulatory or legislative reform will not do.
Additionally, if we were to use “notable Canadians alone”, one would see that politics would taint those great people and the process used to determine their greatness. Think about the Order of Canada. If we were only to appoint recipients of those awards, there is a great likelihood that those awards would become political. Think of Sheldon Kennedy. He was a great hockey player who has won many awards including the capture of the 1989 Memorial Cup, the World Junior Championships in 1988 and 1989.
However, in Canada, a place where hockey is akin to a religion, Mr. Kennedy became a member of the Order of Canada because of “his courageous leadership in raising awareness of childhood sexual abuse and his continued efforts to prevent abuse in schools, sports and communities”. Or put differently, Canadians – from coast, to coast, to coast – celebrate Mr. Kennedy because he came forward with allegation of sexual abuse in hockey.
Let us imagine for a second, a future Prime Minister decided that it would be in his best interest to appeal to his political base and decided to award Mr. Kennedy an Order of Canada just because of his hockey skill. If that were the case, whole hockey teams could find themselves to be members of the Order of Canada for their hockey playing skills. In a country with many great hockey players, our greatest civilian honour would be cheapened and become just a titular prize; while great and brave men or women like Mr. Kennedy would not be honoured for their achievements. Consequently, to keep the Order of Canada – and other awards – pure and to prevent the ambitions of future Prime Ministers, the changes to the Senate must be Constitutional and not legislative or regulatory in nature.
If one accepts my premise of Constitutional Change, the ultimate question should be what changes could be proposed that we could all live with. My proposal is simple:
- Equality of Regions
- Nomination by 10% of the population of any province
While, I will not bore anyone with the Constitutional History, our Senate was never intended to stay as it was. The Fathers of our Confederation understood that the composition of our Senate would have to change as other provinces were admitted or as the relative strength of provinces changed. Right now, most provinces have 6 seats. Ontario and Quebec have 24 each. PEI has four. Each of Territories have one; while New Brunswick and Nova Scotia have ten.
By accepting my proposal, PEI would move to get two seats and New Brunswick and Nova Scotia would lose four. Consequently, eight provinces and all the Territories in this Confederation – including Alberta – would be strengthened; and consequently, Quebec and Ontario might sign on to the agreement.
Now for those who argue that this is not a Triple E seat, I would agree but these changes are radical.
For a part of the calculation for seats in the House of Commons is directly related to the amount of Senators a Province has. Or put differently, without Constitutional protections, PEI, New Brunswick and Nova Scotia would likely drop seats in the House of Commons tomorrow; while Newfoundland could be on the cusp of that situation soon. Consequently, my proposal would likely see the way that we calculate seats in the lower house change. With that being said, the proposal is a workable one for now.
For example, if ten percent of a province has to nominate any Senatorial Candidate, it would be easy to conclude that any future Senator would have to be above political shenanigans. Or put differently, Margaret Radon – in writing for Samara’s blog (samaracanada.com) – pointed out that the generally accepted percentage of Canadians with membership registration is estimated at less than 2% of the population”. While, “Who Donates to Canada’s Political Parties?” (an academic paper written by Harold J. Jansen, Melanee Thomas and Lisa Young) points out that the current crop of political donations comes from less than 10% of the population and only 17% of Canadians have ever donated to parties. If they are right, then the five major federal political parties in Canada alone could not get one senator to work together. Or put differently, any Senatorial Nominee would have to work across party lines and would have to make common cause with members of a variety of civil society partners, entities and political parties to win. That’s right any Senatorial Nominee would have to court members from all political parties as well as members of churches, mosques, synagogues, temples and atheists. Future Senatorial Nominees would have to go to the poor and the rich, corporations and small businesses and others just to have a chance to run. Such a high bar would ensure that Senatorial Nominees are political and non-partisan.
Now, before we start down the path of Constitutional Reform, I can hear some friends and colleagues asking a simple question: why not abolition the Senate? I have two simple answers. Firstly, do you trust any Prime Minister with the power to determine criminal law in this country; while also controlling, at a minimum, the Canada Border Services Agency, Canadian Securities Intelligence Services, Communications Security Establishment (CSE), the RCMP, Canadian Armed Forces, the Canadian Coast Guard, the postal service, of Marine Hospitals, the appointment of Lieutenant Governors, Senior Provincial Court Judges and all Federal Judges, including the Judges of the Supreme Court of Canada, the legislation and regulations of all banks, the definitions of marriage and divorce, the unemployment insurance programme, coastlines navigation and inland fisheries, shipping, quarantines and the establishment and maintenance, currency, bills of exchange, promissory notes, interest, bankruptcy and insolvency, the patents and immigration? If you do, I don’t. If one adds up all the costs of the Senate including Senators, guards, cleaners, administrative assistants and everything else, one will come up with a number of about $427 million. Given that the in 2013, Government revenues were $276.3 billion and the expenditures were $279.2 billion, we can say that Senate made up just over 0.15% of the federal budget. Or put differently, the Senate makes up just over one percent of one percent of our budget. I am willing to pay that for a review of legislation.
Secondly, to get rid of the Senate, one would require constitutional unanimity and further amendments to make the House of Commons work without Senatorial input. We know that changing the Constitution to nominate and elect Senators, as I propose, would only require seven provinces who hold 50% of the population of the country (likely with the acceptance of Nova Scotia and New Brunswick). So the question is can we get seven provinces with 50% of the population to agree or are we going to search for an answer that gets us to unanimity. Considering no Constitution Amendment – including the Constitution Act, 1867 – has ever had unanimity, why start to search for it now? Consequently, with a possible proposal at the ready, I do think that Alberta Liberals need to think about serious constitutional reform. For the outcome would be highly beneficial providing the largest benefit for us all. So why shouldn’t we do the right thing just as Pierre Elliot Trudeau did in 1982?