This past year the great topic for debate in Canadian constitutional reform has been reforming the Senate, the upper chamber of Canada’s Parliament. Liberal Leader Justin Trudeau began to depoliticise the Senate unilaterally by kicking the 32 Liberal Senators out of the party’s Parliamentary caucus in late January. In April, however, some momentum on top-down Senate Reform was lost when the Supreme Court unanimously ruled in Reference re Senate Reform that the three most widely discussed options for Senate reform–term limits, consultative elections, and abolishment–were out of Parliament’s hands, and could only be changed with the consent of most, or all, of the Provinces. Nonetheless, in the context of the ongoing Senate expense scandals, and the upcoming trial of Mike Duffy, the discussion continues for how to best fix Canada’s broken upper house.
Senate reform proposals typically fall somewhere between small steps, like removing partisanship, to bold proposals such as abolishing the Senate altogether. The NDP is quite vocally in the latter camp: a petition at their website ‘Roll Up the Red Carpet’ has nearly 30,000 signatures thus far. The other major parties have been less clear with their ideas. Stephen Harper, a Reform Party founder who once called for an equal, elected, and effective ‘Triple-E’ Senate, has tempered his position since entering the Prime Minister’s office. The Conservatives still want some sort of reform that would incorporate term limits, elections, and other changes, but Harper’s hands are now tied by the Supreme Court’s aforementioned ruling (although Harper has allowed the Senate to ‘wither on the vine’ with 17 unfilled vacancies). The Liberal party has a similarly muddy vision of their ideal Senate: reformed, with a hope for less less patronage and greater ability to serve as a chamber of ‘sober second thought’, yet no official position on how best to achieve this.
The fact that all of the major parties call for change is unsurprising given that 94% of Canadians are unhappy with the status quo Senate. Yet most of these ideas face significant flaws. Abolishing the Senate would mean its crucial functions would go unperformed. Legislation would not get a second, deeper look from the Senate. There would be even less room in Parliament for representation of Canada’s regions and provinces. An elected Senate would have the democratic legitimacy so lacking in today’s appointed body, but two elected houses would compete for political power while performing essentially the same role. This would cause the Senate to become more partisan, adversarial and full of short term backbenchers. In short, it would become more like the House of Commons, and less like the independent legislative refining body is was meant to be. Additionally, an elected Senate would be less diverse than an appointed one because it is much easier to ensure diversity if you are absolutely certain who will fill each seat.
There are serious flaws with the status quo in the Senate, but the current proposals for reform are far from perfect. Clearly, some middle ground approach needs to be taken. But how should accountability, independence, legitimacy, diversity and the need for experienced policymakers be balanced?
There is an idea which fits this criteria that has been suggested before (most recently in the 1992 Charlottetown Accord), but is missing from the current discussion on Senate reform. Rather than having Senators appointed by the Prime Minister or voted in by the electorate, this proposal calls for indirectly electing Senators. That is, the Senator representing a particular province would be picked by the members of that provincial (or territorial) legislature. Interestingly, this is how members of United States’ Senate were selected until 1913 when the Progressive movement ushered in the 17th amendment and general elections for Senators.
Although this wouldn’t include term limits or other common reform proposals, having provincial legislatures select Senators would satisfy several motives underpinning the need for Senate reform. Senators would be accountable to their provincial legislatures and their constituents, yet they would still maintain some independence because Senators wouldn’t have to campaign on specific issues or stick to a party line in debates. Provincial legislatures could pick experienced policymakers to give bills a thorough second look. It would be easier to ensure diversity among Senators – critical for including minority voices in decision making – because only a smaller electorate of MLAs or MPPs would need to be convinced of diversity’s importance.
Yet the most significant change would be to the way regions and provinces are represented in Canada’s federalism framework. This reform would spell the end of today’s ‘executive federalism’, where federal-provincial government negotiations are between each side’s Cabinet. Instead, negotiations between Ottawa and the provinces would be openly debated in Senate. This transparency would surely be appreciated by provinces, given they are all competing over the same limited amount of federal funds. Furthermore, having the Senate serve as the centre of federalism would simplify federal-provincial and province-to-province relationships by designating all parties and negotiations within the confines of one space.
There are some unanswered questions in this proposal: including whether it empowers provincial governments at the expense of their constituents, if it addresses the patronage accusations cast against Senate, and what would happen to Senators once a Provincial government fell. However, to borrow Winston Churchill’s famous line, it is the worst reform idea except for all others that have been suggested. And it could be feasible: though the Supreme Court’s ruling makes any changes to appointment processes difficult, this reform could be informally instituted by the Prime Minister consulting provincial legislatures prior to appointing their Senate representatives (as sometimes occurs with Alberta’s consultative general elections, but at a fraction of the cost). At the very least, this proposal is a unique addition to a constitutional conversation that is desperately needed but has no foreseeable resolution.
– Jacob Greenspon