“If you have an elected Upper House there is more potential than there already is for disagreement between the two Chambers, and that’s what you see in Australia, for example, which has an elected Senate and occasionally there is really grid-lock between the two Chambers,” said Jonathan Malloy, a professor of political science at Carleton University, and a Parliamentary expert.
David Smith, a University of Saskatchewan professor and a leading authority on constitutional governance, said having two elected Chambers could result in different party control, and said “if not gridlock, you’d get a lot more resistance” from an elected Senate.
But there are many questions about Bill C-7, the Senate Reform Act, which has received second reading in the House. The bill will bring in nine-year terms and establish the framework for provinces to voluntarily hold Senate elections. The are still concerns about its constitutionality, its use of retroactively-imposed term limits, its potential to create gridlock between Parliament’s two Chambers, and there are no concrete guarantees there will ever be an entirely elected Senate. The Conservative government’s proposed Senate reforms “will certainly make things more complicated,” said Prof. Malloy.
Benoit Pelletier, a law professor at the University of Ottawa who also served as minister of democratic reform in the first term of Quebec Premier Jean Charest’s government, agreed, saying the bill, if passed, “is going to cause different problems.”
Prof. Malloy said he doesn’t have strong feelings one way or the other when it comes to Bill C-7: “I’m simply saying it makes everything more complex, and that’s what I think anyone can agree with on the government’s senate proposals,” at least during the transition period, said Prof. Malloy.
As it stands today, Bill C-7 would retroactively impose a non-renewable, nine-year term limit on all Senators appointed after Oct. 14, 2008, a countdown that would begin on the date the bill receives royal assent.
Of the 46 Senators who have been appointed by Prime Minister Stephen Harper (Calgary Southwest, Alta.), 42 are currently sitting in the House and all but one of them are set to be affected by the proposed term limits if Bill C-7 passes. Alberta Senator Bert Brown, the second elected Senator to reach the Red Chamber, was appointed in 2007, but due to his age he’s already set to retire in March 2013.
With only 41 of the currently sitting Senators set to be affected by tenure limits, the remaining 64 Senators will continue on as usual, remaining in the House until they resign or retire at the age of 75.
If the bill is passed by Parliament and given royal assent some time this year, Prime Minister Harper’s 41 post-2008 Senators would be forced, under the Constitution, to step down from their seats in 2021.
All Senate appointment announcements since October 2008 have included at least a line stating that the appointee has pledged their support to the government’s Senate reform efforts.
“All Senators appointed after October 2008 have known that the Government’s objective was to implement term limits for new Senators,” said Kate Davis, spokesperson for Minister Uppal, in an email to The Hill Times.
The Hill Times took a look at the retirement dates of the 64 currently sitting Senators who will not be affected by Bill C-7’s tenure limits, and found that only 15 of them are set to retire after 2021, with the last (New Brunswick Liberal Senator Pierrette Ringuette, appointed in 2002 by Jean Chrétien) not set to leave until 2030.
In terms of the selection process, currently only Alberta and Saskatchewan have passed legislation to hold Senatorial elections. Bill C-7 wouldn’t force Canada’s remaining provinces and territories to hold Senatorial elections—such a measure would require provincial referendum—but the legislation would provide a framework for provinces to use, should they choose to hold elections.
“Since the support necessary for a successful and broad constitutional amendment does not currently exist among the provinces, the government looked at what can be done within Parliament’s jurisdiction. The legislation provides a voluntary, flexible framework to act as an outline for provinces to implement Senate nominee selection processes,” said Ms. Davis, on behalf of Mr. Uppal, in an email to The Hill Times.
If Bill C-7 passes, it’s clear that there will be a two-fold transition period between nine-year-term Senators and Senators following the mandatory retirement age of 75 term rule, and moreover, between elected and unelected Senators.
Prof. Pelletier said having a mixture of Senators “for many, many years” won’t be an easy thing to live with, but Prof. Smith said he doesn’t think such a transition period would pose “an insuperable problem.”
But opposition MPs see it differently.
“It’s going to be unequal Senators. Some who have an electoral mandate and some who don’t, some who stay until they’re 75, and others who are supposed to leave after nine years — that’s why I’m calling it a bar scene from Star Wars; it’s just a Parliamentary procedural nightmare that’s being created and the government is sleep-walking Canadians right into it,” said NDP MP David Christopherson (Hamilton Centre, Ont.), his party’s democratic reform critic.
While a transition period is inevitable, what isn’t clear is how long that transition period will last, as Bill C-7 does not guarantee there will ever be an entirely elected Senate in Canada.
Mr. Christopherson said because provincial participation in Senatorial elections is voluntary, any transitional period “could last we don’t know how long, perhaps decades.”
Moreover, Mr. Christopherson told The Hill Times: “At the end of the day, there’s no guarantee under this bill that elected Senators would take their seat because, at the end of the day, the Prime Minister still reserves the right to make the recommendation, ultimately the appointment…[Mr. Harper] violated his own fixed date election law…I don’t think he would have any compunction about violating his own Senate election law.”
But Ms. Davis said Prime Minister Harper’s appointment of Sen. Brown and Sen. Unger makes clear his commitment to appointing “democratically elected” Senators.
When asked about the possibility under Bill C-7 for there to never be an entirely elected Senate, Ms. Davis said: “I won’t speculate on hypotheticals. I’ll note that Alberta has been holding Senate elections since 1989, and Saskatchewan, British Columbia, and New Brunswick have all made positive steps towards holding similar consultation processes.”
“We understand and acknowledge that this process is going to take time, that the process is not going to be instantaneous, and that is why we are committed to working with our provincial and territorial partners on this initiative,” said Ms. Davis.
Meanwhile, Prof. Smith said while the potential under Bill C-7 for the Senate to never be entirely elected could be seen as a problem for some observers, he said, “I suppose the answer to that would be, ‘Well, yeah, but look at the system we have now. They’re not elected at all, is that not a problem?’ ”
But any issues or complexities that could arise during a transitional period, if Bill C-7 passes, are secondary to the larger problems posed by the bill, said Liberal MP Stéphane Dion (Saint-Laurent-Cartierville, Que.), his party’s democratic reform critic.
Mr. Dion said he sees two main problems with Bill C-7: first, that the bill doesn’t include a dispute settlement mechanism between the House and the Senate, and, second, that British Columbia and Alberta “will be terribly under-represented.”
Mr. Dion said representation of those two provinces is already a problem today, “but not a big one” because the Senate currently serves mostly as a “Sober Second Thought.” But if the Senate becomes elected, and therefore more powerful, “then the under-representation of Alberta and British Columbia will become something completely unfair,” said Mr. Dion.
Prof. Smith, Prof. Malloy and Prof. Pelletier all said that having an elected Senate would legitimatize the power of Senators, and would likely result in stronger resistance from the Senate towards the House.
“What we now have, and have had for a long time, is a Senate which pretty much pulls its punches usually on the understanding that they’re not elected, and the House of Commons is and the government sits there, so that ultimately, if there is a kind of showdown, then they have to fold because they don’t have that kind of legitimacy. Once they’re elected, it seems to me that kind of argument wouldn’t apply,” said Prof. Smith.
“If you have an elected Upper House there is more potential than there already is for disagreement between the two Chambers, and that’s what you see in Australia for example, which has an elected Senate and occasionally there is really grid-lock between the two Chambers,” said Prof. Malloy.
As the Senate becomes increasingly elected, the potential for the Upper House to cause grid-lock increases, said Prof. Pelletier.
“It might never be an entirely elected Senate because of the fact that some provinces will not have Senatorial elections. But some provinces will, and the case where there will be such elections, the Senators will have a political legitimacy that is lacking to everyone at this moment, and in my view, this might gradually…change the vocation of the Senate into an institution that will in fact invoke its political legitimacy more and more in the future if more and more provinces use the process of electing Senators,” said Prof. Pelletier.
Mr. Christopherson said having Senatorial elections would legitimize the authority of Senators, since Senators would—like MPs in the House—be elected on some sort of mandate.
“That then creates ultimately two power bases [in Parliament], and if you want to see how that looks, take a look at the states and look at the gridlock that exists between their House of Representatives and their Senate. We would be heading into that same process,” said Mr. Christopherson.
But nothing in Bill C-7 envisages the potential for gridlock, said Prof. Pelletier, “it’s like that won’t be a problem.”
“At the end of the day, we believe it’s a good thing for Canadians to have a democratic say in who represents them in the Upper Chamber, and we are confident that this process will evolve in the best interest of Canadians,” said Ms. Davis in an emailed statement.
Mr. Christopherson said the non-renewable element of the proposed term limits runs counter to the government’s argument that the reforms would give Canada a more democratic Senate.
“Someone who runs on a Senate ticket makes all the promises in the world, they get elected, they stay there for nine years doing whatever they want, and at the end of nine years they cannot be held accountable because they can’t run again. So where’s the accountability in this process?” said Mr. Christopherson. “People are just accepting that its democratic therefore its better. In this case, not necessarily so, especially when they’re leaving out the accountability part of an election, because without accountability you don’t have a healthy democracy, by definition.”
There has been much debate over the legality of the government unilaterally amending the Constitution to affect Senate tenure. Sec. 44 of the Constitution gives Parliament the exclusive authority to amend the Constitution “in relation to the executive government of Canada, the Senate and the House,” and while there are exceptions to this clause, Senate tenure is not one of them.
Others argue that provincial referenda are needed, and point to a 1980 Supreme Court of Canada judgment in the ‘Upper House Reference case’ which found that changes to the Senate that would affect “the fundamental features, or essential characteristics given to the Senate as a means of ensuring regional and provincial representation” could not be made solely by Parliament.
“Our government’s position is that these reforms are reasonable and clearly within the scope of Parliament’s jurisdiction. Our position has been supported by many of Canada’s leading constitutional authorities as well as the Senate Special Committee on Senate Reform,” wrote Ms. Davis in an email to The Hill Times.
Despite a subsequent Senate committee report from the Liberal-dominated Senate Standing Committee on Legal and Constitutional Affairs, which said the government should seek a Supreme Court reference because changing terms limits constitutes a “fundamental” change, the Conservatives have said they will not seek a reference from the Supreme Court on the constitutionality of Bill C-7.
Quebec has already pledged to mount a court case against the federal government if Bill C-7 passes, as the province feels the proposed Senate reforms affect its constitutional rights.
Original Article
Source: hill times
Author: LAURA RYCKEWAERT
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