Electoral Reform (Senate, Commons, & Gov Gen)

[Brad Sallows]

>2) The PM, should he lose the election is giving up 20+ seats in the senate to the incoming government.

Calculated risk.  It moves the spotlight onto the other parties before the election.  Now - assuming anyone cares to interrogate them - they will have to answer for what they will really do with Senate appointments, instead of waving their hands and making empty promises.

 

[Privateer]

Here is a point that I made in this thread last year:

"...the constitution consists of more than just the Constitution Act, 1867 and the Constitution Act, 1982.  For example, the Newfoundland Act, 12-13 Geo. VI, c. 22, an act of the United Kingdom, contains the Terms of Union between Newfoundland and Canada, which provide that Newfoundland is entitled to be represented in the Senate by six members.  Presumably, if the Governor General failed to make the necessary appointments to fill this constitutional requirement, Newfoundland could take legal action to compel the GG to do so."

And there is now a proceeding in Federal Court, brought by a citizen, not a province, seeking a declaration that the Governor General cannot refuse to appoint Senators as this would violate the constitution.  Of course, this is actually aimed at the Prime Minister, who instructs the GG to make the appointments.  A recent article on the legal proceedings:  http://www.theglobeandmail.com/news/politics/stephen-harpers-game-of-senate-appointment-make-believe-will-end/article24559164/

Excerpt:

Stephen Harper is playing at pre-election make-believe with Senate appointments. We have a Vancouver lawyer to thank for calling us back to reality.

The Prime Minister’s game of pretend is in declaring he won’t appoint senators. The unloved, disrespected Red Chamber has caused him a spot of bother, notably because of ill-advised appointees such as Mike Duffy and Patrick Brazeau. So Mr. Harper stopped appointing new senators back in 2013. There are now 20 vacant seats.

It is, for Mr. Harper, a way to avoid uncomfortable optics and deflect uncomfortable questions about the Senate. But the catch is that it’s Mr. Harper’s job to appoint senators. And one day, he will have to appoint lots of senators – at least if he’s re-elected in October.

Nonetheless, Mr. Harper has said publicly that he won’t. Then along came Vancouver lawyer Aniz Alani, who asked the Federal Court of Canada to declare that the PM (technically the Governor-General) must appoint senators within a reasonable time. He felt Mr. Harper was refusing to do what the Constitution requires. “For me, it’s really a rule-of-law issue,” Mr. Alani said in a phone interview.

Government lawyers tried to get the case dismissed, on the grounds that Mr. Alani’s court action has no hope of success. But on Thursday, Federal Court judge Sean Harrington disagreed. He noted that the Senate is sometimes “a source of embarrassment” to the government, but that doesn’t mean it has no duty to appoint senators.

 

[Brad Sallows]

Undoubtedly the people opposed to Harper would like to be able to attack Harper for some Senate appointments before the election, but he isn't required to oblige them.  Either there is a time within which a vacant position must be filled, or there is not.  Right now the latter looks to be true.

[Add: another possibility is that Harper is practicing briar patch politics.  "I don't want to recommend 20 Senate appointments.  Please don't make me recommend 20 Senate appointments."]

 

[Harrigan]

The PM was never going to appoint any senators right before an election, so this "announcement" is nothing new at all.  As Mr.Campbell has correctly pointed out, there is a "right answer", and attriting the Senate in this manner is not it.  Yet another case where he is announcing something which he knows is unconstitutional - in other words, against the law - and yet so many want to overlook that.  Why is abiding by the laws of the land so difficult? 

I support the reform and/or abolition of the Senate, but it has to be done legally otherwise it is illegitimate.

 

[ModlrMike]

We can blame Mr Harper all we want, but the truth of the matter is that reform starts with the Provinces. The Senate is the representative body of the provinces, and with the exception of Alberta, none have stepped forward to assist in any reform. Until the public, and the federal parties put pressure on the provinces, no meaningful reform will be possible.

 

[Harrigan]

We can blame Mr Harper all we want, but the truth of the matter is that reform starts with the Provinces. The Senate is the representative body of the provinces, and with the exception of Alberta, none have stepped forward to assist in any reform. Until the public, and the federal parties put pressure on the provinces, no meaningful reform will be possible.

I am not sure it is written anywhere that the provinces have to initiate the discussion - that's just a deflection from a federal government that wants this particular issue to go away.  However, no matter who initiates the process, it doesn't remove that requirement for it to be done legally - and therefore legitimately.  And that path is not a mystery (well, to most).

 

[a_majoor]

Harrigan, you are being deliberately obtuse.

The formula for changing the Senate, and anything else constitutional is spelled out in the Constitution Act of 1982, and Edward has commented extensively, so there is no "mystery" as to how to go about changing or abolishing the Senate. The Government may propose, but the Provinces dispose, and the Prime Minister's earlier efforts to allow for an evolutionary change (by not appointing Senators unless the Provinces elected them) obviously was not supported by the Provinces: how many Senatorial elections were held since 2006?

Attritting the Senate isn't at all strange or unusual, the PM is clearing the decks the way he did last time to provide room for Senators to be appointed with a changed or evolved "custom". Maybe Senate reform will become an issue in the election, and he can point to having room to bring in Senators elected/selected under some new convention or custom (since the BNA and Constitution Acts are rather inflexible this way).

 

[Oldgateboatdriver]

It is simply bull to say that the senate represents the provinces. It would be just as wrong a statement to claim that federally appointed judges represent their province of origin. Both are the full and sole purview of the GG-in-council and therefore purely national (in the sense of  Federal) animals.

First of all, not all provinces have a set number of senators that must originate from their midst set by the constitution. Quebec and Ontario do, PEI has a "minimum" number set, but within the senators that come from the "maritimes", so they could have more, if Ottawa wanted. Newfoundland has a set number, as do some of the territories. In the West, there has been a tradition that has developed on which province should have so many senators out of the "western" overall number allocated. However, as we know in Quebec, constitutional traditions are non-binding on the government, which can discard them as it wishes - hence no western province could complain if, for instance, all the "western" senators were selected from, say, Manitoba.

Unlike the US, where the senators are elected from given states, and therefore are required to do that state's biding (I remind you that when a US senator dies in office, it is the State Governor who appoints a replacement until the next election), the idea in Canada was to have an upper chamber that would be free of the influence of  any political party or specific geographically located power base.

The main reason for appointing senators coming from specific provinces or regions, as the case may be, was to ensure that, in their "sober second thought", the upper chamber would be able to have people in a position to speak to how any piece of legislation would affect a given province or region, and thus ensure that they could return to the commons for "re-work" any bill that would have an unwarranted disproportionate impact on a specific province or region.

So its not up to the province to start the process and in my view, the PM is using a very bad tactic here in pressuring the provinces. In fact, I would say he is shooting himself in the foot.

Let's face it, other than some provinces in the west, where the "elect" your senator movement started (and I remind you that Harper was one of the leaders of that movement before he even entered federal politics), most provinces don't even have senate reform on their scope even today. So what does not appointing senators do to these provinces? Nothing. The provincial governments don't need federal senators to carry out their business. Those provincial governments are not even consulted on appointment of senators, who are normally appointed because of their participation in federal politics, not provincial politics. If for any reason this policy of the PM leads to the senate not being able to function and thus the federal parliament not functioning, do you think that the people will blame their provincial governments and pressure them to act? No, they will blame the proper party: the PM and the federal politicians.

On top of that, I believe that you won't have to wait until quorum is lost to see problems. First, the committee work will slow down because a lack of senators means that the current ones will have to become members of more committees , and agenda coordination will delay things. If the senate slows down, legislation in general will slow down. Second, as you approach ever closer to not achieving quorum, there will be more and more times where a committee or the full senate will not be able to transact business because of illnesses, or other valid reasons for senators to be absent, thus leading to a temporary lack of quorum,etc. You could also see a revolt of the senators, by the way: They could slow any senate business to a crawl by studying legislation one article at a time, ordering full unrestricted public consultations in committee of all legislation, etc. bringing business to a crawl (imagine such scenario with Mr. Harper's favourite five hundred pages omnibus bills adopted under closure in the lower chamber. He has no power to bring closure in the senate. Such bills could be there for years).

Also, imagine the following scenario: Harper is reelected. He fails to appoint senators. He tries to pass legislation that is really offensive to the Libs. The liberal senators quit "en masse" leading to no quorum. The business of the nation is at a standstill. If he appoints just enough senators to have quorum, he breaks his own policy and look crass at the same time. And then, you can be sure that the province from which he did not appoint the few extra senators will cry foul. 

 

[Edward Campbell]

I think most of you are at least partially wrong:

The Senate was created, in 1867, to prevent unbridled popular democracy, which was still highly suspect in Britain. Our Senate was, indeed, intended to provide "sober second thought," because the officials in London believed that the people, left to their own devices, would choose "beer and popcorn"* over good public policy. Thus, it was agreed, the elites should have a voice. Our constitution was, in its way, the second draft of federalism: the US Constitution being the first, and we copied and adapted some ideas/models from Westminster and some others from America.

In a federal state one needs a bicameral legislature because a federation is a bargain, and the partners in the bargain, the provinces, still retain some (considerable) degree of sovereignty and they need a properly constituted legislative forum in which to guard their interests.

Prime Minister Harper is, in my opinion, doing the wrong thing, and I suspect he's doing that wrong thing wrong, too. The Supremes have given him very narrow arcs of fire: there are only a few proper course of action available ~ they all involve (re)opening the Constitution, with all that implies. That is the most political of all things, and the SSC recognized that. It would be political (and policy) madness to do anything before the election, even to appoint senators. I do not believe there is a crisis of any sort until about 2025 ~ plenty of time for someone to think of something legal and proper. Plus, I think that the prospect of a full scale Constitutional Congrees should bring Dr Johnson's quip about hanging to mind: "When a man knows he is to be hanged...it concentrates his mind wonderfully."

_____
* Remember Scott Reid's unfortunate quip on television about 10 years ago? Some people still don't trust the "people."

 

[Brad Sallows]

>Yet another case where he is announcing something which he knows is unconstitutional - in other words, against the law

Harper's position right now is that he will recommend no appointments up to a specific point in time.  Have we a ruling on that yet?

For those that want Harper to move on Senate reform, this is a move.

 

[Harrigan]

I think most of you are at least partially wrong:

The Senate was created, in 1867, to prevent unbridled popular democracy, which was still highly suspect in Britain. Our Senate was, indeed, intended to provide "sober second thought," because the officials in London believed that the people, left to their own devices, would choose "beer and popcorn"* over good public policy. Thus, it was agreed, the elites should have a voice. Our constitution was, in its way, the second draft of federalism: the US Constitution being the first, and we copied and adapted some ideas/models from Westminster and some others from America.

In a federal state one needs a bicameral legislature because a federation is a bargain, and the partners in the bargain, the provinces, still retain some (considerable) degree of sovereignty and they need a properly constituted legislative forum in which to guard their interests.

Prime Minister Harper is, in my opinion, doing the wrong thing, and I suspect he's doing that wrong thing wrong, too. The Supremes have given him very narrow arcs of fire: there are only a few proper course of action available ~ they all involve (re)opening the Constitution, with all that implies. That is the most political of all things, and the SSC recognized that. It would be political (and policy) madness to do anything before the election, even to appoint senators. I do not believe there is a crisis of any sort until about 2025 ~ plenty of time for someone to think of something legal and proper. Plus, I think that the prospect of a full scale Constitutional Congrees should bring Dr Johnson's quip about hanging to mind: "When a man knows he is to be hanged...it concentrates his mind wonderfully."

_____
* Remember Scott Reid's unfortunate quip on television about 10 years ago? Some people still don't trust the "people."

Agree 100% with Oldgateboatdriver and Mr.Campbell. 

Here's another article that presents a similar case: 

http://www.theglobeandmail.com/news/politics/stephen-harper-needs-to-get-serious-about-senate-policy/article25676114/

Harrigan

 

[ModlrMike]

I am not sure it is written anywhere that the provinces have to initiate the discussion - that's just a deflection from a federal government that wants this particular issue to go away.  However, no matter who initiates the process, it doesn't remove that requirement for it to be done legally - and therefore legitimately.  And that path is not a mystery (well, to most).

I didn't say, nor imply that the provinces have to initiate the discussion. True senate reform flows through the provinces. Without their agreement nothing substantive can happen. If they won't agree to elections, perhaps the prospective senators can be recommended to the PM by the premiers for onward consideration by the GG. As I think about it, that might also remove some, if not most of the partisanship of the current upper house.

I will agree that a moratorium on appointments is the wrong way to go, but it's pretty obvious that those who would denounce Mr Harper for making appointments, are the first to condemn him for not making them. Lose-lose in my opinion.

 

[Harrigan]

I didn't say, nor imply that the provinces have to initiate the discussion. True senate reform flows through the provinces. Without their agreement nothing substantive can happen. If they won't agree to elections, perhaps the prospective senators can be recommended to the PM by the premiers for onward consideration by the GG. As I think about it, that might also remove some, if not most of the partisanship of the current upper house.

I will agree that a moratorium on appointments is the wrong way to go, but it's pretty obvious that those who would denounce Mr Harper for making appointments, are the first to condemn him for not making them. Lose-lose in my opinion.

Apologies if I misinterpreted.  When I read......

We can blame Mr Harper all we want, but the truth of the matter is that reform starts with the Provinces

....I assumed you meant that the reform process must be initiated by the Provinces. 

I agree that there probably are ways to make it less partisan, but only if the PM wants it to be less partisan.  This PM doesn't show any inclination to make it less partisan, and nor have any of the Liberal or Conservatives before him. 
*historical note - PM's Martin (5), Mulroney (1), Trudeau (8), St.Laurent (1), Borden (3), Thompson (1), Macdonald (9) are the only PM's that appointed opposition members to the Senate.  In Martin's case, almost 30% of the appointees on his watch.

 

[Oldgateboatdriver]

First of all, just out of curiosity, I went to the official Senate site to see how many compulsory retirements are coming up in the next five years. The number is 33. That would draw the Senate down to 50 Senators, which is well below half of the number of seats.

Second, ModlrMike, the PM has not been denounced for making appointments. Like ALL PM's, he has been denounced for the bad appointments he may have made. Considering he has made fifty such appointments to date, some of which have already had at the time to serve and retire, the fact that a few of those turned out to be bad apples, means that by and large, his appointees have been reasonable choices. He has not been blamed for those and his record to date would suggest that he makes good choices in general, something which should not make him fearful of making further appointments.

 

[Infanteer]

I believe that our, Westminster, system of responsible, parliamentary government is superior to e.g. the US model of representative government, but our, Canadian, implementation needs some work.

    First: we need to reform our legislative structure so that the House of Commons is much, much more equitable in its levels of representation and so that our Senate (which I believe is necessary) more adequately
    reflects a 21st century liberal-democratic country.

    Second: the sovereign's residual powers are important and we should not be afraid to allow her/him to use them when the time is right. Because of the nature of power on our parliamentary system, the sovereign's powers act as a needed check on the elected executive.

    Third: the sovereign needs to be be patriated.

    Fourth: party leaders must be accountable to and selected by their parliamentary caucuses. Allowing parties to select leaders, in the name of "grassroots democracy" simply hands political office over to special interests and partisans.

    Fifth our constitution needs to be abolished ... repealed, cancelled, annulled, whatever. Written constitutions, even the best (and ours is not the best by any stench of the imagination) are always problematical because they cannot help but reflect the issues and attitudes of
    their time. An unwritten constitution "lives" and "grows" in step with the society it serves. (Israel, New Zealand and the United Kingdom are examples of successful, sophisticated, modern, liberal democracies that do not have written constitutions.) Admittedly Canada, being
    a federal state (and likely, being "two nations" within a state, needing to remain a federation) needs a "Basic Law" to define the division of powers, at least, but such a basic law can be thorough and clear and very limited in its scope. Rights (and duties) and even principles
    need not be written down.

(1)  Agreed.  I am not adverse to having an appointed Senate, as quite frankly appointing people to secure tenure can provide a stronger batch of officials if the appointment process is rigorous.  Thus, I think it should be a separate appointing body (a "Canada Council?") perhaps headed by the Chief Clerk or the Chief Justice or someone that isn't trying to get a few votes out of every decision.  Perhaps there is a process for nominating oneself or another Canadian for review by such a body.  I'm just winging it here; any better ideas?

(2)  Yes.  And strengthening the appointment process for this office would be useful as well (although I think we've done quite well to date).

(3)  Yes.  It can still be a crown, but one that resides in Canada and is "held" (vice worn) by the GG.

(4)  Yes.

(5)  Good luck.  You may have a better case if you keep Parts 1 (Charter) and 2 (Aboriginal Rights) enshrined as "constitutional" with the same amendment criteria while allowing the other sections pertaining to the structure of government to be amended through a far less ornery (and rigorous) formula.  We'd probably have a functional Senate by now if we weren't locked down to 1867 rules with 1982 amendment criteria.  Things change, and governments should too.

 

[dapaterson]

My preference for the Senate would see senators appointed for two terms of the provincial legislature, based on popular vote in the province.

So, if Manitoba were to have six senators, then every time there's a provincial election in Manitoba three senators would be elected at large for the province.  They would stay in office for two terms of the provincial legislature (however long those terms may be).  That turns the Senate into an elected house of the provinces, but provides some degree of continuity with the extended terms of office (up to ten years).

Devil is in the details of course: how do you divvy up the senate seats?

 

[Brad Sallows]

Harper caught plenty of stick for his batch appointments in 2008.  Undoubtedly some of the people who screamed then are screaming now because of the moratorium.  If he appointed another batch, they'd scream opportunism - especially in the context of recent polls.

 

[a_majoor]

Determining the number of senators per province and the means of electing/selecting/appointing them is such a can of worms because each choice reflects a fundamentally different conception of the role and nature of the Senate, its place in government and the balance of power(s) between the provinces.

If we think back to the historical US Senate, its membership was selected by State legislators to represent the State's interests to the Federal government in Washington. A "Triple E" Senate would resemble that model, and equalize the powers of the provinces in the upper house (the same reason every US State only has two Senators, so a small State like Delaware has the same "voice" as Texas).

Now the lay down of senators in the current Canadian system isn't bound by common sense considerations like that. The relative number of Senators may have been set by a series of historical accidents, but the Upper Chamber reflects a sort of power structure that the Laurentian Elites are fighting to retain (the essential dominance of central Canada as the political and economic hub of Canada), while the greater world outside has long since bypassed that notion. People are not going to give up acquired perques and power easily (and generally won't unless forced to), so until you find the solution to that conundrum, or build sufficient force or incentives to make the other parties deliver up their piece of the pie, we will never get anywhere.

 

[Brad Sallows]

Senate reform isn't going anywhere until the provinces decide it needs to.  Meanwhile, all we need is enough senators to maintain quorum, preferably appointed from the subset of people who are sharp on policy and common sense - diversity be damned, if necessary.

 

[Harrigan]

Senate reform isn't going anywhere until the provinces decide it needs to.  Meanwhile, all we need is enough senators to maintain quorum, preferably appointed from the subset of people who are sharp on policy and common sense - diversity be damned, if necessary.

So if Trudeau wins the election, reduces the Senate to a quorum filled with his appointees, you'd be fine with it?

Harrigan