Advice to the Minister of Democratic Reform
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Advice to the Minister of Democratic Reform Senate Reform, Constitutional Amendments, Fixed Election Dates, and a Cabinet Manual Bruce M. Hicks* The Conservative Party of Canada ran in 2006 from provinces that have enacted legislation as on an agenda of democratic reform that was to prescribed by the bill and held “consultative” include election dates for the Commons fixed elections.3 at four years and Senate elections with fixed eight-year terms. After assuming power, its The prescribed provincial legislation is con- legislation for quadrennial fixed election dates tained in a schedule to the bill, and uses mul- was abrogated within two years of its passage tiple-member plurality voting to identify who and again two years later. Its Senate reform “wins” the right to be on a list of provincial sen- bills have never gotten beyond second reading atorial nominees. The number of senators on the and, in most cases, only made it to first. And list, according to the proposed legislation, is up the prime minister has twice convinced the Governor General to use her reserve powers to the provincial government, and once placed to protect the government from parliamentary on the list these “senators-in-waiting” remain accountability. This paper outlines possible on the list for six years, unless they resign from ways to rehabilitate the government’s reform the list, swear allegiance to a foreign power, are agenda. convicted of treason, are adjudicated bankrupt, or are a senator, Member of Parliament (MP), or On February 10, 2012, I met with the Honourable member of a provincial legislature.4 Tim Uppal, Minister of State (Democratic Reform), as part of his outreach to academics The purpose of this legislation is to make with respect to the federal Conservative the Senate elected without amending the Con- Government’s “Senate reform” legislation. stitution Act, 1867. Currently before the Parliament of Canada Pursuant to section 42(b) of the Constitution is Bill C-7, An Act Respecting the Selection of Act, 1982, “the method of selecting Senators” can Senators and Amending the Constitution Act, only be altered by a constitutional amendment 1867 in respect of Senate Term Limits.1 This that has been agreed to by a resolution adopted bill proposes reducing the term of all senators by both chambers of Parliament and seven appointed after October 14, 2008, from age provincial legislatures that together represent seventy-five to a single nine-year term.2 more than 50 percent of Canada’s population (s. Additionally, the bill states that the prime 38(1)). 5 minister “must consider names from the most current list of Senate nominees selected for that The federal government’s claim that this province or territory” in recommending to the legislation does not change the method of se- Governor General appointment to the Senate lecting senators rests on the fact that the prime minister is only being instructed to “consider” Constitutional Forum constitutionnel 23 the names on this list, leaving the method of ap- tion surrounding the holding of these consulta- pointment the same as it was before the adop- tive “elections” to each province is less uncon- tion of this law. Currently, the Governor Gen- stitutional (if such a thing were possible) than eral summons the person to the Senate that previous incarnations of this legislation that has been recommended by the prime minister would have established a federal election law through an “instrument of advice.” governing “consultations with electors on their preferences for appointments to the Senate.”8 The precedent for a province holding a vote on a list of potential nominees goes back I told the Minister that Quebec will likely to the Meech Lake Constitutional Accord, challenge the constitutionality of the legislation which would have amended the Constitution in court as the political leaders in this province to require the prime minister (PM) to choose correctly see the Senate’s arrangements as one nominees to the Senate from a list provided by of the key agreements between the French and the relevant province. During the ratification the English that made Confederation possible. period for this accord, Prime Minister Brian The statement by Father of Confederation and Mulroney had agreed to operate as if the accord Ontario Leader George Brown to this effect in was in place. This allowed the Alberta govern- the Confederation debates was cited by the Su- ment, long an advocate of an elected Senate, to preme Court in the 1980 reference on the legal- enact provincial legislation to determine its list ity of altering the Senate to allow the provinces through province-wide election and then dare to appoint half of its members (or alternately al- the PM not to appoint the winner.6 When the lowing for direct election of senators). The cita- accord was defeated, Mulroney stopped obtain- tion is as follows:9 ing provincial lists of potential nominees, and Jean Chrétien made a point of publicly reject- But the very essence of our compact is that the union shall be federal and not legislative. ing on principle the appointment of any person 7 Our Lower Canada friends have agreed to give “elected” in an Alberta senatorial election. us representation by population in the Lower Alberta has continued periodically to hold House, on the express condition that they shall have equality in the Upper House. On Senate consultative elections and Prime Minister no other condition could we have advanced a Harper has chosen the appointees for that step; and, for my part, I am quite willing they province from this list. The hope of the federal should have it. In maintaining the existing government is that more provinces will follow sectional boundaries and handing over the the Alberta example and that this would create control of local matters to local bodies, we rec- sufficient pressure on future prime ministers ognize, to a certain extent, a diversity of inter- to respect these elections—and encourage the ests; and it is quite natural that the protection public in other provinces to demand the same for those interests, by equality in the Upper right to elect their senators. Chamber, should be demanded by the less nu- merous provinces. This paper reports the advice and concerns I raised with the Minister. The first section dis- The ruling of the Supreme Court in this case cusses the Senate reform bill and outlines my underlies the amending formula adopted in the critiques of the plan contained in that legisla- Constitution Act, 1982. tion. The following sections detail the four rec- Additionally, Quebec politicians correctly ommendations I made to the Minister on the surmise that the creation of elected senators government’s larger democratic reform agenda. will not just alter the institutional dynamics of Parliament, but will shift political influence in Critique of the Senate Reform Bill the federation. Senators, elected with mandates from an entire province, will come to rival pre- It is likely that the clever sleight of hand offered miers, who are not directly elected province- by this bill will not survive a constitutional wide, in moral suasion and public influence. challenge, but the decision to leave the legisla- 24 Volume 21, Number 2, 2013 The Minister expressed his willingness to legislatures or through plebiscite. And the PM show flexibility with the provinces. For exam- would retain the right to choose who to nomi- ple, he has told New Brunswick that the federal nate. Otherwise, if the government imposes a government will let it use single-member rid- singular method of consultation on the prov- ings, rather than a province-wide vote, for its inces, namely the holding of elections using ten Senate positions, so that the Acadians in the multimember plurality balloting, then this is north and the English in the south of the prov- not about consultation, it is about changing the ince will be represented. “method of selection.” In that spirit, my advice was to let the Que- The federal government’s strategy to transi- bec National Assembly recommend that prov- tion the upper chamber to election, as I told the ince’s nominees. This has long been a demand Minister, is based on a naive understanding of of Quebec’s and, I suggested, just might prevent the way the 17th Amendment to the Constitu- it from launching a court challenge on the con- tion of the United States unfolded. This amend- stitutionality of the law. [Quebec subsequently ment made its Senate elected. filed a reference, on April 30, 2012, with the Court of Appeal of Quebec, challenging the The US Constitution provided for the selec- 10 constitutionality of Bill C-7.] tion of senators by the legislature of each state. There is a belief that once Oregon adopted leg- Having senators appointed by a province islation in 1908 to hold consultative elections, will by no means undermine the legitimacy of it created a domino effect, with state after state the upper chamber. In fact, the Bundesrat mod- following suit, and then proceeding to ratify the el (from Germany) has long been considered by requisite constitutional amendment to make Canadian federal and provincial governments the Senate elected by 1913. as a useful model for Canada precisely because intrastate institutions are legitimate and even There is no doubt that this did occur and thought necessary in so many federal countries. that the change was in response to a populist groundswell in favour of making the upper Of course, allowing Quebec to appoint its chamber more directly accountable to the vot- province’s senators will not recreate that model, ers. But it was a much longer developmental tra- as other provinces will be using election.