This article was originally published in Maclean's Magazine on November 26, 2007
Harper and Layton Discuss Senate Reform
There have been 13 attempts to reform the Canadian SENATE since 1900, all failures. It remains a haven for lucky partisan appointees. Even Senator Serge Joyal - who once edited a whole book advancing the startling proposition that the Senate is really a pillar of democracy - calls it the country's "least admired" national institution. Stephen HARPER had been pursuing a strategy of incrementally improving the upper chamber, proposing first to limit senators' terms to eight years, and establish, if not direct election of senators, then at least a mechanism for consulting voters on who the prime minister appoints.
But Harper has now opened up the possibility of a more sweeping overhaul. In a typical case of his reading the chessboard of parliamentary possibilities, he saw a chance for a surprise tactical stroke after harmless-looking moves by Tory Senator Hugh Segal and NDP Leader Jack LAYTON. Segal started the ball rolling last month by independently proposing a referendum on abolishing the Senate, his way of trying to draw attention to the need for real reform by putting the ultimate alternative on the table. Layton echoed Segal's proposal, except the NDP really does want the Senate scrapped. Harper connected the dots, phoning Layton to offer his unexpected support for an NDP motion in the House calling for such a referendum.
Of course, Harper doesn't suddenly want the Senate eliminated. He hopes a referendum would offer Canadians a chance to vote for reform. Layton and Segal, though, both suggest a stark question on abolition to garner a clear expression of popular will. It's not obvious how both options can be offered on the same ballot: federal referendum law requires a yes-or-no question, and doesn't allow multiple-choice plebiscites.
Given the confusion over what sort of question would be asked, it's not clear exactly what the Prime Minister is up to. Some Liberals suggest his real goal is to again isolate their leader, Stéphane DION, who came out opposing a referendum as an empty ploy, since Senate reform would still require provincial approval. Layton dismissed the notion that embarrassing Dion was Harper's aim as "Conspiracy Theory 101."
Dion is quite right, though, that a referendum would be non-binding. To turn its result into action, Ottawa would have to plunge into negotiations with the provinces to amend the Constitution. Harper had been careful, up to now, not to raise the prospect of another round of bargaining along the lines of the Meech Lake accord. Yet that would seem to be the most likely endgame of his latest gambit. "If a referendum builds any momentum for changing the Senate," says Patrick Monahan, dean of York University's Osgoode Hall Law School, "it is likely to give rise to other constitutional agendas."
Here's how it might play out. Ottawa would ask Canadians about the Senate in a referendum held in conjunction with the next federal election. Depending on the question, Canadians might vote for abolition, or for an elected, updated Senate. Either way, some provinces would object, or ask for concessions in exchange for agreeing to the change. Monahan says Ottawa would likely follow the regional veto formula set out in a 1996 law, under which British Columbia, Quebec and Ontario would all have to be onside, along with Alberta and at least one of Saskatchewan and Manitoba, and at least two Atlantic provinces. It's an even tougher standard than the basic amending formula of seven provinces with 50 per cent of the population. "In fact," Monahan says, "it raises the requirement to 92 per cent of the population."
Few who lived through Meech Lake or Charlottetown would bet on this test being met in constitutional horse-trading, even if Canadians had signalled an overwhelming preference. In fact, there's no guarantee a referendum would produce such a decisive result. A poll this week by Ipsos Reid Public Affairs found 45 per cent would abolish the Senate if the alternative was the status quo, but 41 per cent would keep it. (The other 14 per cent didn't know or wouldn't answer.) If the choice is between turning the Senate into an elected body or disbanding it, 54 per cent favoured reform, but 24 per cent would still get rid of it.
Uncertain popular opinion, conflicting goals among those pushing for a referendum, constitutional rules that make big changes very difficult - it all adds up to long odds against this latest bid for Senate reform succeeding. And that would be 14 tries since 1900, and counting.
Maclean's November 26, 2007