The Senate reform bill: a constitutional danger for Canada.

Author:Dion, Stephane

"I look at the problems in other countries like the United States and Europe, where political gridlock, over deficit crises and debt crises, is leading to a real economic uncertainty and political instability. We're very fortunate we don't have that ... We have to make sure here that we continue to be able to make decisions and stay focused."

Who said this? The Conservative Leader, Peter Van Loan, on December 8, House 2011, while trying to justify his government's record use of time allocation. (1)

So why does the Conservative government now propose a Senate reform that is sure to create exactly what Mr. Van Loan decried, political gridlock, at the heart of our federal institutions? Why do Prime Minister Stephen Harper and Democratic Reform Minister Tim Uppal promote Bill C-7, "An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits"? Of all the bills currently in discussion in the Parliament of Canada, this could well be the most dangerous for the future of our country. Whatever our partisan orientation, we need to realize the danger and stop this bill.

It is a well-known law in political science that the problems of tomorrow are often the result of the ill-conceived institutional reforms of today. That is exactly what is at stake with C-7.

If the bill becomes the law of the land, the result will be either a new constitutional dispute or a harmful burdening of our federal decision-making process--or a combination of both. These scenarios are particularly unwelcome when we should be combining our efforts to face the economic, social and environmental challenges of our time.

Technically, the bill would grant the prime minister the power to limit a senator's mandate to nine years and appoint senators through a patchwork of voluntary provincial senatorial elections. The problem with this plan is that it would create a system with two elected chambers duplicating each other, creating delays and roadblocks in Parliament. It would bring to Canada the same paralysis we see in the United States or Mexico.

Canada is a decentralized federation whose 14 member governments (including the territories) have huge powers and responsibilities. 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.

A recipe for gridlock

We need to keep in mind that the nominal constitutional powers of our Senate are the same as those of the House of Commons, except for two restrictions:

* First, financial legislation must be introduced in the House; the Senate may amend financial legislation but not increase taxation.

* Second, the Senate has only a suspensive veto of 180 days on constitutional amendments.

Our Senate almost always gives the last word to the House; it reviews the House's legislative work and can suggest amendments, but almost never vetoes House decisions. As an unelected body, the Senate leaves the final word to the only chamber that is elected by the Canadian people.

But if senators are elected, on the basis of political platforms and commitments to voters, they will be entitled--and, it may be argued, will have the duty--to exercise their nominal constitutional powers to their full extent. No longer will they have any reason to let their House colleagues have the final word. In some ways, C-7 would make them stronger than MPs: 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 have a smaller number of peers, which is in itself a source of prestige and clout (105 senators compared to 308 MPs, or 338 after Stephen Harper's House reform).

An elected Senate will not limit itself to complementing the House of Commons, but will rather duplicate it and, very likely, oppose it on numerous occasions. We need to take full measure of the impacts such a departure from current practice would have.

A 2009 study shows that between 1994 and 2008 the Senate amended 9 per cent of the bills passed by the House and explicitly rejected only two of 465. (2) If we had an elected Senate, how many bills would it reject? A quarter? Half? We need only look at the U.S. Congress to figure out how frequent and lengthy the blockages would become. In fact, the situation could be even worse here than in the United States, because Canada does not have a constitutional mechanism to resolve disagreements between two elected chambers claiming the same legitimacy to speak for the people.

Queen's University Professor Ron Watts looked at 25 democratic federations. (3) In each and every one, Professor Watts found the existence of deadlock-breaking mechanisms. These may consist of mediation by conference committees (United States), giving the second chamber a suspensive veto only (India), limiting the absolute veto of the second chamber to matters under state jurisdiction (Germany) or a double dissolution followed by a joint sitting (Australia). Every federation with two elected chambers has found it indispensable to establish a dispute-settlement mechanism. What Mr. Harper wants to impose on Canada is an irresponsible and dangerous precedent.

In addition to these deadlock-breaking mechanisms, every federation with a parliamentary system such as Canada's made sure that the second chamber would be less powerful than its equivalent of our House of Commons. In only one of these federations, Australia, is the second chamber directly elected, but deadlocks there are broken through joint sittings where senators are vastly outnumbered by MPs. (4) It should be noted that Australia is a more homogeneous and centralized federation than Canada. The largest Australian state is only 12 times more populous than the smallest, compared with 70 times in Canada. The three...

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