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Is there a 'least bad' option for a dysfunctional Senate?

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Photo: flickr/ Scazon

NDP and Official Opposition Leader Tom Mulcair told a CBC interviewer on Thursday that he has not met a single Senator who is "doing important parliamentary work."

That elicited tut-tuts from more than one Ottawa insider.

The Senate is not a complete waste of money, those insiders argue, and some Senators sometimes do good work.

It's true, historically, that a handful of Senators have taken on all kinds of complex and difficult issues that members of the House were loath to touch.

Manitoba Senator Sharon Carstairs' work on the right to die is one example.

Going back further in history, one could cite Senator David Croll's landmark special Senate committee on poverty.

Croll's report had a significant influence on public policy.

We are still, today, grappling with some of the Toronto Senator's key recommendations, including that of a guaranteed annual income. 

Nova Scotia Senator Kent Ogilvie is an eminent scientist, and, perhaps, Prime Minister Stephen Harper's best appointment to the upper house.  

The Senate committee he chairs, Science and Technology, did excellent work on clinical trials, a rare example in the current Senate of non-partisan policy development.

Still, it is noteworthy that the only prime minister in our history who has publicly and repeatedly committed himself to Senate reform -- our current prime minister -- has also arguably done the most damage to the upper house's capacity to effectively play any useful, independent role.

Prime Minister Harper has almost exclusively named (a record number of) fierce Conservative partisans to the upper house. And he has demanded that they follow the party line as slavishly as his House members.

Resistance to C-377, an anti-labour, private member's bill

There was one recent occasion when a handful of Conservative Senators balked. It was over the private member's bill, C-377, which would impose onerous, and probably unconstitutional, disclosure requirements on unions.

When he was still in the Senate, Conservative Hugh Segal led the fight against this one.

Segal managed to get enough Conservative colleagues to either abstain or support his amendments. The Senate then voted to send the bill back to the House of Commons, significantly amended.

At that point, Harper prorogued Parliament, causing all government legislation to die.

The arcane rules have it, though, that private members', as opposed to government bills survive. So C-377 arose from the ashes, not amended.

The House passed it quickly, and it is now once again before the Senate.

Just as C-377 was arriving at his door, Harper's handpicked Government Leader in the Senate, Claude Carignan, decided unilaterally to impose time allocation on all private members' bills, an unprecedented move.

There is still a tiny handful of Conservative Senators with principles, however, one of them being another rare, decent Harper appointee, Senator Diane Bellemare. She has moved that the returned Bill C-377 is out of order.

It is up to the Speaker Leo Housakos, another Harper's handpicked men, to rule on Bellemare's motion. 

Betting that Housakos would even consider defying Harper, who quite openly supports C-377, would be a foolhardy bet indeed.

Many labour leaders, while supporting the NDP's position that the Senate should be abolished, are also encouraging the Senate to do its due diligence on C-377, and amend it.

In this, some commentators detect inconsistency.

The NDP says the Senate should not overrule the elected House, but when it is in their interests, the NDP's labour friends want the Senate to do just that.

Well, the Senate exists, replies labour, so it should at least try to perform its sober second thought role.

If there were no Senate, one could argue, we might hope there would then be a more democratic and representative House of Commons, which would have the wisdom and the power to block such affronts to fairness as C-377.

The Senate as legislative back door

In any case, for every C-377, or serious Senate study of a touchy and difficult issue, there are a number of contrary examples, in which the Harper government has used the Senate as a sneaky way to circumvent the elected House of Commons.

The Conservatives have tactically introduced a number of highly contentious bills in the Senate, not in the House of Commons, as a way to deflect attention and criticism from them, and to expedite the process.

Bill S-4, to take one example, resuscitates an earlier failed Conservative legislative attack on Canadians' privacy rights, former Public Security Minister Vic Toews' infamous Bill C-30.

At the time he introduced C-30 in the House, you will remember Toews said of critics that they "supported child pornographers."

Unfortunately for the minister, some of those critics were Conservative party voters, and they made their dissatisfaction known.

The government was forced to pull C-30.

The Conservatives learned their lesson, though, and quietly introduced new legislation, S-4, which contains many of the objectionable measures of C-30, in the Senate.

The Harper government also used the Senate to push through a measure that will undo years of environmental cooperation involving the Yukon government, industry and First Nations: Bill S-6.

This bill will make it easier for the Yukon government to permit massive resource development in huge and very ecologically fragile tracts of wilderness, despite vociferous First Nations opposition.

The government found it easier to use the Senate for this nasty piece of business than to have the appropriate minister, Bernard Valcourt, introduce it in the House.

Not surprisingly, when the Senate dispatched S-6 to the House, the government immediately imposed time allocation, bringing it close to its record of 100 instances of imposing closure to kill debate.

The Senate as legislative back door: that is the way a prime minister who was once committed to an elected, effective and independent Senate views the upper house these days.

That, plus its role as a warm and comfy place to shelter key party operatives such as Senator Irving Gerstein (and once upon a time, Senator Mike Duffy).

The least bad option for the Senate...?

It is not a pretty picture.

When it comes to doing something about our dysfunctional and undemocratic Senate, however, Canadians seem to be faced with only bad options.

The question the country faces is: which is the least bad option?

Here are some of them.

1. Keep the Senate as it is, except institute a system of elections for Senators

This looks good, on paper, and Harper has, from time to time, favoured this approach.

However, when you consider that, once elected, Senators would be there until age 75, without ever having to face the voters again, it does not look so good.

2. Institute elections for Senators, with defined term limits

This looks more democratic, but, of course, would require a constitutional amendment with the support of seven provinces with at least half the Canadian population. Plus, following this course would open the question of the appropriate number of Senators per province, a dicey issue. Currently the Atlantic provinces are over-represented vis-à-vis their populations and the Western provinces under-represented. Quebec, with a much smaller population than Ontario, has an equal number of Senators, 24.

As well, having a fully elected upper house would also lend greater legitimacy to the Senate and open the equally difficult question of what the exact nature of its power should be.

Finally, since such a reform would entail a constitutional change, it would inevitably raise the unfinished business of recognition for First Nations self-government rights, not to mention Quebec's demand for status as a distinct society.

3. The status quo, tweaked

This is Liberal Leader Justin Trudeau's option -- leave the Senate as is, but make all appointments, in the future, on a non-partisan basis. It is a salutary idea, as far as it goes, which is not very far. Given the huge numbers of appointments Harper has made, many who are far from the retirement age of 75, it would take more than a generation before the Trudeau option transformed the Senate into a something that might resemble a non-partisan chamber of true "sober second thought."

Even then, the embarrassing matter of Senators being appointed rather than elected legislators, in a notional parliamentary democracy, would remain. And Trudeau's pledge would only bind him. Subsequent prime ministers could easily revert to the tradition of partisan appointments.

4. Abolition

The NDP, famously, has always wanted this. Totally abolishing the Senate would, however, require a constitutional amendment with the support of every single province. Only Saskatchewan is currently on record as favouring abolition. More to the point, Quebec's Philippe Couillard has said he thinks the fact that Quebec has the same number of seats in the Senate as Ontario is an important consideration for his province.

It is difficult to imagine what Mulcair could offer Quebec to compensate for the loss of those 24 Senators. If Mulcair, while abolishing the Senate, were to try to reform the House of Commons to give additional, guaranteed members for Quebec, in recognition of its distinct society status, he would face potential backlash from the rest of Canada.

All supporters of abolition might do, perhaps, is remind Couillard that those 24 Quebec Senators are all political partisans, appointed by federal prime ministers. One could hardly call them genuine defenders of Quebec's interests. The best-placed bodies to protect and defend Quebec and Quebeckers, abolitionists could argue, are the Quebec National Assembly and the federal House of Commons.

Still, abolishing or even merely reforming Canada's antiquated and costly upper house would mean opening the constitution, and, with that, all the bad memories of Meech and Charlottetown. 

Are Canadians ready for such an ordeal, much as they might have contempt for the non-democratic, unelected Senate?

Photo: flickr/ Scazon

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