Senate reform a bumpy ride - or road to nowhere?

"An unelected Senate is simply not acceptable in a modern democracy."

That's what the 2011 Conservative platform said, and next week Stephen Harper's majority government will move to make good on its campaign commitment by re-introducing legislation that died on the order paper in previous minority Parliaments.

But the road to a reformed Senate isn't one the Conservatives can travel alone, despite having a majority in both the House of Commons and the Senate itself. Even setting off down that road will cost Harper's government valuable political capital in federal-provincial relations.

Will the reforms be worth the grief their debate will provoke? What progress is even possible?

Reform vs. abolish

Longstanding federal NDP policy, and the position that continues to be expressed by its leader Jack Layton, is that the Senate should be abolished. And Canadians who no longer see the point of the Senate, even a reformed one, aren't limited to the New Democratic caucus. After all, several provincial legislatures had upper chambers of sober second thought at the time of their creation, but dispensed with them decades ago as redundant and outdated.

The Senate's sins and shortcomings are legendary, often congregating along predictable themes: spending without accountability to the electorate, reports without results or meaningful change, and the underperformance — or indeed, appalling performance — of appointees without real transparency. 

The Senate's composition represents a Canada of the previous century, not the future: skewed towards small Maritime provinces that joined Confederation early, at the expense of Canada's younger but now larger west.

Compelling arguments for an effective second chamber do exist.

First among them, the fact that the House of Commons itself isn't perfect, and historically the Senate has served as a check on its power, improving its bills at times, and blocking or at least delaying possibly ill-advised measures on occasion.

The Senate could also be an effective counter-balance against the House of Commons by giving smaller provinces a greater voice than they have in the elected House, where seats are allocated to represent Canada's population, albeit imperfectly. (The Harper government has another reform bill coming to address the House imbalance.)

While abolition has its proponents, Stephen Harper's government is focused on changing the Senate, not killing it off.

A simple history lesson is likely most instructive to understand why: from its origins in the Reform Party movement of the '80s, the kind of Conservative Harper represents is more likely to advocate a triple-E (equal between the provinces, elected, and effective) Senate, rather than no Senate at all.

Change, but how?

Previous attempts at Senate reform involved Constitutional change. (Meech Lake anyone? And how about that Charlottetown Accord?) They failed, rather spectacularly, and divided Canadians in the process. So conventional wisdom holds that another round of negotiations would be pure political folly.

A recent poll suggests Canadians' presumed aversion to Constitutional change may be overblown. But Stephen Harper's reform strategy suggests Conservatives still believe Constitutional talks are a political no-go.

So what changes are possible without re-opening the Constitution?

Previous legislation attempted to reform the Senate in two ways, and the government argues neither require a Constitutional change.

All signs point to the new legislation mirroring the previous strategy.

Term limits for Senators

A bill establishing fixed term limits for Senators is the less contentious of the two reforms. It's also the one where a modification from previous legislation is possible, namely in the length of the term itself.

More people accept that the Harper government has the jurisdiction to change Senators' term limits, because in 1965, legislation was used to change an appointment to the Senate from "a job for life" (serving until death or resignation) to one with a mandatory retirement age of 75.

The bill that died on the order paper in March called for term limits of eight years. But theoretically, that could allow a long-serving prime minister to appoint an entire Senate over the course of two or three Parliaments.

The Conservative election platform was mute on the exact length of the term limits a future government would propose, simply stating that there needed to be a fixed length of tenure.

If a future more-effective Senate is to be a sufficient check on the power of the House of Commons, a maximum term of eight years (two electoral mandates, according to fixed election dates) doesn't cut it. 

Liberal and even some Conservative Senators have noted this problem with previous legislation. A future bill has to pass both the House of Commons and the Senate to succeed, so watch for a longer term limit in the next incarnation of the bill: potentially nine years, although ten, or even 12 to 15 years, were suggested by Senators looking to compromise.

Elected Senators

The previous Parliament also failed to pass legislation enabling Senate elections in provinces across Canada.

Officially, the Harper government continues to encourage provinces to hold Senate elections, and the appointment of Senators "selected through democratic processes" was a 2011 campaign pledge.

Here's where the rough jurisdictional battle begins.

Senators are appointed to represent provinces, and in theory these appointments are meant to be consultative and representative of a provincial government's interests.

In practice, prime ministers are free to make their own appointments, and Stephen Harper has appointed his own supportive individuals to represent provinces where Senate elections have not been held.

Despite the failure of its previous Senate elections legislation, the Harper government's position continues to be that all provinces should hold Senate elections to nominate candidates for upcoming vacancies, and the best time to do that is during regularly-scheduled provincial elections.

Some provinces have held, or intend to hold, elections to nominate the candidates their citizens prefer to represent their interests. Some have cited concerns over the federal government expecting provinces to incur the cost of electing Senators to sit in a federal Parliament.

Other provinces have outright refused on principle. They believe the politicians elected to the federal House of Commons lack Constitutional jurisdiction over the Senate, and cannot reform the way it's chosen without the approval of the provinces.

Conservatives argue their previous legislation merely set out a framework in which elections to nominate Senators may occur. They intend to create a consultative process with the provinces, not something that prescribes actions outside of the Constitution.

Quebec is prepared to make its Constitutional argument in court. Other provinces have mused about court action to thwart the federal government's reform efforts too.

"The court is literally going to laugh at them," said Conservative Senator Bert Brown recently in Maclean's magazine.

But some constitutional scholars aren't laughing. They speak of a fundamental conflict between a future system of Senate elections and the text of the 1867 British North America Act calling on the governor general to "summon qualified persons to the Senate," and more specifically the line in 1982's Constitution Act that makes clear that an amendment to the Constitution, approved according to its specified formula, is required for any changes to "the powers of the Senate and the method of selecting Senators."

The most recent and relevant decision of the Supreme Court is 1980's Upper House Reference, a response to a Senate reform bill from the Trudeau government era that ruled Parliament alone cannot change the fundamental features of the Senate.

But in 1982, the Constitution itself changed. So it's not clear whether a test found in a 1980 ruling even applies.

Interim Liberal leader Bob Rae has said he'd support a Supreme Court reference case to sort out the jurisdictional issues inherent in Senate reform. (Longstanding federal Liberal policy has held that Senate reform cannot occur without negotiations with the provinces.) And constitutional scholars would no doubt relish the opporunity to hammer this one out once and for all.

It's not as if the Harper government isn't a fan of Supreme Court references: it's actively seeking the Supreme Court's advice on its jurisdiction related to establishing a single national securities regulator.

But notwithstanding these legal threats, no Supreme Court reference is planned for Senate reforms, according to Tim Uppal, Stephen Harper's minister of state for democratic reform. Uppal maintains his government's proposals are within the constitutional authority of Parliament.

Should the federal government lose the legal argument in court, its choice is stark: abandon Senate reform, or re-open the Constitution.

Are the Conservative reforms enough?

Reforming the Senate opens a Pandora's box: once these changes occur, new issues emerge. And once a reform process begins, it's difficult to contain.

Two major criticisms of the previously proposed Harper reforms have emerged.

First, while electing Senators makes the red chamber more legitimate, it also fundamentally alters the relationship between the always-elected House of Commons and the Senate.

Previously, it was always clear who had the upper hand in the case of a stalemate of opinion: the body that was elected by Canadians. If both bodies are elected someday, can the House of Commons still claim supremacy?

Liberal democratic reform critic Stéphane Dion calls this the Senate's "sense of reserve" — that after amending and returning a bill to the House with its suggested changes, eventually appointed Senators know they cannot stand in the way of the people's will as expressed by a House of Commons majority.

An elected, more legitimate Senate could feel empowered to exert itself. Painful stalemates could ensue, blocking legislative progress in all kinds of areas.

Dion argues that Senators cannot be elected, and consequently made more powerful, without also introducing some kind of a dispute resolution mechanism to mediate between two elected bodies.

The real elephant in the room is the Senate's regional representation. Currently, Senate equality is regional over Atlantic Canada, Quebec, Ontario and the West, so a huge province like British Columbia has six Senators, whereas smaller Atlantic provinces such as Nova Scotia and New Brunswick have 10 each. Its fundamental unfairness was a key driver of the west's triple-E Senate movement decades ago.

The Senate reform legislation expected from the Harper government won't fix this. Only a Constitutional amendment will.

Re-opening the Constitution: who's in?

What would it take to amend the Constitution to reform the Senate?

Constitutional amendments require the consent of two-thirds of Canada's provinces (at least seven), representing 50 per cent of the population.

Here's a summary of where each provincial government, and where relevant, its main opposition party, stand on Senate reform. Would enough of these provinces ever agree?

Newfoundland and Labrador:

Recent anger over Stephen Harper's decision to re-appoint Fabian Manning to the Senate despite his (second) election loss on May 2 stoked the fire for Senate reform advocates: Newfoundland and Labrador Liberals called for the province to hold Senate elections this fall, potentially when the province goes to the polls October 11. However, Progressive Conservative Premier Kathy Dunderdale isn't interested in holding Senate elections, and her government opposes the federal government acting unilaterally on Senate reform.  Polls suggest Dunderdale's government will be re-elected.

Prince Edward Island:

Liberal PEI Premier Robert Ghiz believes Senate reform is a distraction from other important issues, and thinks holding senate elections during provincial elections would divide voters' attention. If reform is on the table, the PEI government favours a true triple-E (equal, elected and effective) Senate, particularly in terms of both large and small provinces having the same number of Senate seats. PEI voters head to the polls October 3.

Nova Scotia:

NDP Premier Darrell Dexter favours abolishing the Senate. But if reform is on the table instead of abolition, his government insists change is only possible through a Constitutional amendment negotiated with the provinces. Nova Scotia's PC Party Leader Jamie Baillie does not believe reform requires Constitutional change, and would support Senate elections for Nova Scotia.

New Brunswick:

PC Premier David Alward has yet to go on the record about Senate reform. But the previous Liberal government under Shawn Graham was prepared to fight the federal government's plans for Senate reform in court. Before that, Bernard Lord's PC government was open to Senate elections.

Quebec:

Quebec Intergovernmental Affairs Minister Pierre Moreau said Quebec would pursue a legal challenge to the Harper government's Senate reform plans, and Premier Jean Charest reiterated this threat. There's no reason to expect any future Parti Québécois government to be any more willing to indulge a perceived jurisdictional intrusion than the current federalist Liberal government.

Ontario:

Ontario Premier Dalton McGuinty recently confirmed his government's position on the Senate: it needs to be abolished, not reformed. McGuinty believes that based on his coversations with other premiers, reform is not possible. Ontario's New Democrats agree, but the Progressive Conservative Opposition led by Tim Hudak favours Senate elections for Ontario. Ontarians go to the polls on October 6.

Manitoba:

The NDP government led by Greg Selinger also favours abolition. But in the meantime, Manitoba has put in place a plan forprovincial Senate elections, following the recommendations of an all-party committee on Senate reform created by former Premier Gary Doer. Manitobans head to the polls October 4, and current polls suggest a Harper-friendly Progressive Conservative government could be elected.

Saskatchewan:

Premier Brad Wall's government is onside with the Harper government on the principle of electing Senators. It passed legislation enabling provincial Senate elections in 2008, but as yet none have been held. Saskatchewan will have a Senate vacancy in 2012 and a provincial election is scheduled for November 2011, but no Senate elections are scheduled. Wall believes the federal government should pay for the provinces to hold Senate elections, and the Premier is concerned about voter confusion if too many things are on the ballot this fall.

Alberta:

Alberta's legislation enabling provincial elections to "nominate" senators for when vacancies arise dates back 1987, in the era of the Meech Lake Accord. The first Senate election was in 1989. Stan Waters, the winner, was appointed by then-Prime Minister Brian Mulroney. Alberta also held Senate elections in 2004. Former prime minister Paul Martin refused to appoint any of the province's choices on principle, but Stephen Harper appointed one of the winners, Bert Brown, at his first opportunity in 2007. The Conservatives intend to continue appointing senators from Alberta's elected list as future vacancies arise.

British Columbia:

New British Columbia Liberal Premier Christy Clark favours abolishing the Senate, because it no longer "plays a useful role." However, her government will back a current private member's bill to establish Senate elections. British Columbia's New Democrats support abolition.