In the interest of full disclosure, I currently work as a policy advisor to the Senator for the Northwest Territories, who, until a week or so ago, was a member of the Liberal Caucus. He is happy to sit as an independent Liberal in the hopes of having a less partisan experience.

I also was, for many years, an active member of the NDP and ran for them federally in 1979 and 1980. I've never been a Conservative though I did vote for Joe Clark once, while living in Calgary.

I've been working for the Senator since 2001 and have seen a lot of Senators come and go, not to mention a few Prime Ministers and party leaders.

Reforming the Senate was a priority of the Reform party — in fact the Triple-E Senate was one of the defining characteristics of that party. The Canadian Alliance continued to support it and it is the avowed policy of the new Conservative Party — though they focus on a single-E, elected.

A Bill to limit the terms of Senators and create a consultative electoral system (consultative because the Prime Minister remains constitutionally empowered to appoint Senators) was introduced as early as 2006. At the time the Liberals and NDP (not to mention various experts and the Department of Justice) suggested that the government should test the constitutionality of such proposals through a Supreme Court reference.

The government demurred and the Conservative party frequently claimed that the opposition was preventing them from passing the Bill into law. The fact is: the opposition does not determine when a Bill will be debated; the government does. For five years, various iterations of the Bill sat on the order paper — un-debated because the government refused to proceed to second reading.

Why? The cynical explanation is, unfortunately, also the most logical. Senate Reform — and the supposed opposition of other parties — was a tremendous fundraising tool for the party. Over time, Stephen Harper eventually acknowledged there as a need for more Conservative Senators (mostly to make the Chamber operate properly — the Liberal majority in the Senate blocked no government bills, though it did amend a fair number, usually for the better. They did find other ways to annoy the PM. Once he got the hang of it, Harper appointed more Senators than any previous prime minister, including, as we well know, Senators Duffy, Brazeau and Wallin.

Perhaps, if he had used a blue ribbon panel to nominate Senators instead of his own poor judgement, the recent Senate scandal might not have happened — or been limited to former Liberal Mac Harb. I'm sure Mr. Harper would have enjoyed that.

Then we had the 2011 election and Harper's first majority. Passing Senate legislation should have been a piece of cake; he's used his majority to ram through far more contentious or outrageous legislation. But suddenly Mr. Harper was converted into a Supreme Court fan (remember he always claimed the courts were part of the opposition). Suddenly, he decided that a Senate reference was just the thing. It effectively delayed having to do anything (more fundraising opportunities) and gave him the out he was looking for — he can blame the Court when it quite rightly tells him he needs a constitutional amendment to make the changes he's proposing. Will he enter the lion's den of federal-provincial negotiations? Not likely, he won't meet with the Premiers at the best of times; I doubt if he has much stomach for the sausage factory of constitution making.

Whatever happened to the Conservatives forceful assertion that Senate Reform could be accomplished without an amendment to the Canada Act? Like all magical thinking it disappeared in the face of reality.

That brings us to the magical thinking of the NDP. They want to abolish the Senate. I've heard two approaches broached. The first is naive; the second silly.

The standard argument accepts that a constitutional amendment is necessary — though they insist that it will only require seven provinces with 50% of the population, when it is almost certain to require unanimous consent (the Supreme Court may prove me wrong but I doubt it). They argue that if they form a government they will have a mandate (with at most 40% of the vote) to abolish the Senate. Provinces would recognize the moral imperative and immediately sign on to the process without demanding other more difficult changes. Were they asleep during the Meech Lake and Charlottetown Accord processes?

A 7/50 agreement will be difficult — only Ontario, Saskatchewan and Manitoba currently support abolition. It is doubtful if any of the Atlantic Provinces would agree — it would impact their already diminished influence in Ottawa and, in the case of PEI, would actually reduce the number of MPs they have. As for Quebec, they are already suing the Conservative government over their more limited changes.

More magical thinking with respect to the Senate. It will be abolished because we wish it to be. Go ahead — close your eyes and click your heels together and see what happens.

At least that approach is grounded in some sort of reality. The other plan is simply crazy. Under this plan, the Prime Minister would cease to appoint Senators. When their numbers drop below 15, the Senate (under their rules, which they could amend), a quorum would no longer be possible and the Senate would, in effect, cease to exist. Never mind this would take until 2030 and require the NDP to be in power for 15 consecutive years (or persuade other parties to agree to their plan), what about the constitutional requirement to have all legislation passed by both the House of Commons and the Senate?

No worries: the Governor General would never refuse to give Royal Assent to an bill passed by the peoples' representatives. Maybe, maybe not — I suppose an NDP PM could appoint a compliant a Vice-Regal representative.

The courts are a more difficult proposition. Judges are required to uphold the constitution and would be hard pressed to agree to recognize laws that break the supreme law of the land. At the very least, enterprising defense lawyers would use constitutional arguments to defend any client charged under such laws. It could tie up the civil and criminal justice system for years.

As for me, I do believe in Senate Reform. An elected Senate is only appropriate in a modern democracy. However, every country with two houses (there are over 60 including every single Federal state) uses a different method of (s)election for the two houses. Different terms, different voting systems, and so on. In Australia, they use preferential ballots for MPs and proportional representation for the Senate; as a result the two houses have quite different compositions. Most assign different powers or responsibilities as well.

[NOTE: Abolitionists often point to New Zealand and, more recently, Ireland as places that abolished their Senates. Neither is a federation with the need to represent provinces or regions.]

This kind of reform will require a 7/50 constitutional amendment and maybe Canadian politicians will someday have the courage to enter that arena again (polls suggest Canadian citizens want them to).

In the meantime, what about Mr. Trudeau's proposal? It is more show than substance, no doubt, but it is not without substance either. A more non-partisan Senate where groups of independent Senators sit in loose caucuses of the like-minded could be quite effective as a house of second sober thought or legislative revision. The traditions of the Senate make it extremely unlikely they would oppose the will of an elected government — as long as they weren't elected themselves. Over time — if future appointments were made through a process similar to the Order of Canada or, for that matter, the Supreme Court — the Senate might become quite non-partisan and more acceptable to the public.

And that might make actual constitutional reform more likely. Not quite magical thinking on my part — maybe just wishful thinking.

WARNING: This article is about reforming the Canadian Senate.  Reading it may result in narcolepsy, high blood pressure (if you’re from Alberta), contradiction of your preconceptions, and a rude awakening to the harsh reality of reforming anything at the Federal level.

For the last eight years I have worked as a policy advisor to the Senator of the Northwest Territories, the Hon. Nick Sibbeston.  He is a Liberal Senator appointed by Jean Chretien in 1999.  The views expressed in the following article are my views and do not necessarily reflect on his beliefs or opinions.

Working at the Senate was not the culmination of a life-long dream.  True, I do have a Masters in Political Economy, had worked in government for 12 years, including a stint as a Cabinet advisor, but I had been a New Democrat pretty much all my life.  My general view of the Senate, when I thought of it at all was that it was full of political hacks and should be abolished at the first opportunity.  So what happened?  The Senator in question had previously been the Premier of the Northwest Territories and I had been asked to be his executive assistant – plucked from the bureaucracy because of my analytical skills and writing ability.  For two years, I worked for and with him, writing speeches, travelling the North and attending numerous high level political and constitutional conferences.  These were heady times, including efforts to expand the constitutional rights of Aboriginal people (since left to the courts) followed immediately by the proposed Meech Lake Accord.  After our two years together, Senator Sibbeston and I went our separate ways.  I returned to the bureaucracy for four years and eventually left government to try my hand as an actor and playwright.  He left politics and went into private business.  But we stayed in touch and after he was appointed to the Senate in 1999, even discussed briefly the idea of me working for him.  But neither of us pursued it.

Then on September 13, 2001, I was sitting at home in Calgary, the Edmonton SF conference I was to have attended having been cancelled (Allen Steele was the guest of honour, I think).  I was talking to my wife about the events of the last few days.  By then I was working as the program director in an artists in schools program.  Although I thought the work I was doing was valuable, I suggested that maybe it was time to return to government and work on bigger issues.  At that moment the phone rang.  Senator Sibbeston wanted me to come to Ottawa to work for him.  What could I say?

At the time, I thought I’d work in the Senate for two or three years and then move into a policy shop in a Federal department.  As it turned out, I enjoyed the work, found it challenging and interesting and generally felt I was doing more good where I was than by moving somewhere else.  The hours were long when the Senate was sitting but flexible when it wasn’t.  I got to travel the country, met many interesting people, and worked on some very interesting files in Aboriginal policy, the environment and natural resources.  The money isn’t as good as I might make in the public service but overall the benefits outweigh the liabilities.

There, now you know why I think I have something to say about Senate reform.

Senate reform has been the mantra of western conservatives for more than twenty years.  The idea of the Triple-E Senate (equal, elected, effective) has many fierce adherents, especially in Alberta.  One of them even sits in the Senate.  I won’t try to do their arguments justice but generally they think Senators should be elected for fixed terms, that each province should have the same number of Senators (usually 10), and that the Senate should play a significant role in the Federal Parliament.  There seems to be some debate as to whether the current powers of the Senate should be retained or modified.  This is a significant issue – and probably the most contentious.

The current Prime Minister, the Rt. Hon. Stephen Harper, has proposed two pieces of legislation to amend the Senate.  With prorogation, both of these Bills will need to be introduced again.  That doesn’t matter though – neither had got past First Reading.  And not because the Liberal-dominated Senate had stopped them.  But I’ll get back to that.

The first Bill would limit Senators to a renewable eight-year term.  This is a significant change.  Currently Senators are appointed and stay in office until they reach age 75.  Theoretically, that means a Senator could sit for 45 years (you have to be 30 to be a Senator) though in fact terms of 10 to 20 years are most common, as Senators are often in their late-fifties to mid-sixties when appointed.  But the length of office is not what is most significant about the change.  It is the potential renewability of the term.

This bill would not create an elected Senate.  The Governor General on the advice of the Prime Minister (which she would never refuse) would still make the appointments and re-appointments.  It is the second Bill that deals with elections, though it doesn’t create an elected Senate either – at least not in the way most people think of elections, i.e. the people vote, the politician takes office.  The proposed Bill would establish advisory elections at the provincial level.  These would be similar to the elections now held in Alberta that led to the appointment of Senator Bert Brown – except it would be the Federal government holding and presumably paying for the elections.  Popular votes would create a list of possible appointees from which the Prime minister could, if he so chose, make recommendations to the GG for appointment.  I say could because he also could recommend someone completely different.  And if you think that would be political suicide, imagine the impact of a federalist Prime Minister appointing an avowed and open separatist from Quebec (or Alberta for that matter) to the Senate.

Still, the two Bills together would create a quasi-elected Senate with reasonable terms of office.  Who could object to that?  As it turns out, lots of people.  But so what?  Why shouldn’t the democratically-elected (albeit minority) government at least make an effort at piecemeal reform.  After all, that’s sort of how the American people got to elect their Senators directly – a process that took nearly 70 years to accomplish.  Direct Senate elections only became universal in the USA with the 17th amendment in 1913. 

Here’s the difficulty.  Any attempt to change the Senate through legislative means is almost certainly going to meet with a constitutional challenge.  Even if a province agrees with the proposed changes, they might well challenge it to prevent a constitutional precedent being set.  Several provinces have already served notice they will go to court if either of these Bills are passed.  And, the general view of constitutional experts is they will probably win on the term limits and almost certainly win on the elections.

Why would the government propose something that would almost certainly be struck down by the courts as unconstitutional?  Far be it for me to impute motive, but if I were a gambling man, I’d bet it’s because promising Senate Reform is far more politically beneficial than actually delivering on it. 

So what is the problem with these proposals?  The government argues it has the power to change the term of Senators.  They point to the amendment in 1965 that changed “life appointment” to one to age 75.  This was done by the Federal parliament acting alone and was considered constitutional at the time.  However, in a 1979 Supreme Court ruling, the judges determined that change was about as far as the federal government could go.  On a reference from Pierre Trudeau's government, the court said 9-0 that Ottawa could unilaterally do almost nothing to the Senate. In particular, Ottawa could not unilaterally abolish the Senate, change the powers of the Senate, alter the number of senators from each province or fiddle with the method of selecting senators.   The key element of that ruling was that the Senate was an integral part of the federal system (not just the federal government) and therefore changing it required a change to the constitution. 

But what about the change in terms?  Surely we could do that much.  But central to permitting the change from life to 75 was that it did not alter the fundamental character of the Senate.  Senators’ terms were long and they were non-renewable and so once appointed they were, at least in theory, independent of the Prime Minister who appointed them.  Because, he or she might still be in power when the time for reappointment came up.  Whether you think that is a good thing or a bad one, it does change the fundamental character of the Senate.  And that requires the agreement of seven provinces representing fifty percent of the population (See Part V of Constitution).  As for abolition, which the Prime Minister likes to threaten, many experts think that would change the Royal prerogative.  And that requires unanimous consent of the provinces.

Good luck with that.

That deals with the elected part of the Triple E.  Next time I’ll look briefly at Equal and Effective before throwing out some ideas for a really radical reform of the Senate.  And yes, they do include elections.  And they will have just as much chance of being implemented as Prime Minister Harper’s proposals.  That is, next to none.