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.
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.
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