Perils of Senate reform

If Canadians think federal-provincial wrangling is divisive and unproductive, wait until they experience routine parliamentary gridlock between the House of Commons and an elected and empowered Senate.

"Of all the bills being pushed forward by this government, C-7, the Senate election bill, is likely to be the most dangerous. Yet almost nobody is talking about it," former Liberal leader and intergovernmental affairs minister Stéphane Dion says.

Dion was in Winnipeg last week to speak to a University of Manitoba audience on the environment and climate change. But he set aside time to do an interview about the Harper government's bill to create an elected Senate; a proposal Dion warns will paralyze the national government and literally "overturn our federation... We face the possibility of major constitutional disputes."

The former constitutional law professor has just published a paper in the academic journal Inroads titled The Senate Reform Bill: A Constitutional Danger for Canada. He says an elected Senate will import all the paralysis and dysfunction currently being experienced between the two houses of the U.S. Congress and the White House but lacking any mechanism for resolution.

"Canada is a decentralized federation whose 14 member governments have huge powers and responsibilities," he writes. "In such a decentralized federation, it is important that federal institutions, common to all citizens, be able to work well and quickly when drafting legislation or making decisions. Federal institutions should not be constantly hampered by opposition between two elected chambers."

But that is only the first of the snares set by empowering provinces to elect federal senators in a constitutional, institutional and procedural vacuum. Unlike most other second chambers in parliaments around the world, the Canadian Senate enjoys co-equal power with the House of Commons, the chamber that selects the government, except it cannot originate money bills. The Senate may amend financial legislation but it cannot levy or increase taxation.

Because of their non-elected status, Canadian senators traditionally defer to the elected House of Commons. But, Dion warns, if senators are elected "they will be entitled -- and it may be argued, will have the duty -- to exercise their constitutional powers to their full extent."

Elected senators will be stronger and more powerful than MPs in many ways, he continues. Senators would represent larger constituencies than MPs (provinces rather than ridings), they would be elected for longer terms (nine years instead of four) and they would be fewer in number -- 105 senators compared with 308, rising to 338, MPs -- giving them more prestige and clout.

Nor is that the only way an elected Canadian Senate would eclipse the House of Commons, the house to which the government of the day is accountable and the only house able to defeat it.

"An elected Senate will not limit itself to complementing the House of Commons, but rather duplicate it and likely oppose it," Dion says. "How many bills passed by the House would an elected Senate reject?" he asks.

Although the western provinces, particularly Alberta and B.C, are the most keen for an elected Senate, Dion argues they will be the most disadvantaged. B.C., with a population of 4.6 million, has just six senators, only two more than Prince Edward Island, with a population of 146,000. That means there is one senator for every 685,581 British Columbians compared with one senator for every 33,962 islanders. The comparison with Alberta is almost as stark: Alberta's population is 3.8 million, meaning each of its six senators represents 548,391 people.

"This unbalanced distribution of Senate seats... is a problem for the two western provinces and an anomaly for our federation," Dion writes. "The government's reform would make the situation much worse."

Yet individual provinces are plunging ahead. Alberta has already elected four senators and B.C. and New Brunswick are planning senatorial elections.

David E. Smith, senior policy fellow at the University of Regina's Johnson Shoyama graduate school of public policy, seconds all of Dion's warnings about the Harper elected Senate legislation and adds more.

He finds it "puzzling and disturbing" that Canada, alone among the parliamentary democracies, is apparently prepared to have Parliament's second chamber elected not by federal law, but by the laws of 13 provinces and territories.

"I'm not a lawyer, but I don't see how the provinces can establish the laws by which individuals are elected to the upper chamber of Parliament. I don't quite understand that. You would have 13 different sets of laws, 13 different sets of rules... I just don't get it. How does this reflect selection of members of the upper chamber of the federal House?

"It's a provincial Trojan Horse," Smith continues. "I think this could be challenged on constitutional grounds. There needs to be more public debate."

Frances Russell is a Winnipeg

author and political commentator.

Republished from the Winnipeg Free Press print edition March 28, 2012 A11