When Stephen Harper became the Prime Minister of Canada, I was not what you'd call thrilled. I favour policies considerably left of the Conservative Party's. However, alternating into and out of power is part of Canadian politics, just as a constant bubbling up of new parties is. Also, he didn't seem stupid, and he had a minority government, so how much harm could he do?
That was before he created an entirely unnecessary
constitutional crisis, of course. That event will be taught in Social Studies classes forevermore, just as the
Rebellion Losses Bill and the
King-Byng Crisis are taught. And Harper's crisis had no excuse except to financially harm his political opponents in advance of the next election. I lost all respect for him then, and gained none back in subsequent years.
Another short-sighted decision of his relates to the Senate. But first, let's have a little background to the problem posed by the Senate.
Now, of course, the Senate has been a controversial issue in Canada for many years. I remember when a number of premiers agitated to transform it into a
Triple-E Senate, meaning equal, elected, and effective. The impetus for this idea is that such a Senate could have defeated Pierre Trudeau's National Energy Program, which was hated by Albertans and, to a lesser extent, by other Western Canadians. Unfortunately, it is difficult to pitch an idea to the federal government that is designed to thwart the federal government.
I suppose that the federal government might have allowed a Triple-E Senate in exchange for something else in one of Prime Minister Mulroney's constitutional conferences. Inevitably, though, the idea foundered on the dangerous shoal of constitutional change. As I sometimes note, the federal government and the provinces have not agreed unanimously to
any constitutional change since 1867, when Canada's constitution was first adopted.
Then, I recall, some provinces (OK, just Alberta) decided to run "elections" for the province's senators and propose the winner of these contests to the federal government for appointment. They could run such popularity contests without a constitutional change and still get senators who could consider themselves, in a sense, to be elected.
The federal government, however, is under no obligation to appoint someone who has the provincial government's blessing, or a provincial population's. In fact, if the "winner" of the "election" belongs to a different party than the government of Canada, then there's slim to no chance he'll be appointed.
Stephen Harper is himself an Albertan, and fully in favour of changing the Senate along the lines of the Triple-E. Of course, his power to enact such sweeping changes was challenged in court. In 2014,
the Supreme Court blocked him from unilaterally imposing term limits on Senate appointments and filling the empty Senate seats through "consultative elections." That would require, the court said, a constitutional change requiring
support from at least seven provinces representing 50 per cent of the population.
His fall-back solution, getting rid of the Senate entirely, would require unanimous support from the provinces. It would not, therefore, happen.
Almost exactly a year ago (July 24, 2015), he announced a short-sighted solution to the Senate problem: he made it
a matter of policy to not appoint any new senators to replace those who die or retire. Eventually, there would be no senators and, without senators, no Senate. The Supreme Court had earlier ruled that this was policy would be a constitutional change through the back door, and was therefore unconstitutional. Harper didn't care.
After all, the Senate was an embarrassment. There were all sorts of scandals about expense reports being wrong, senators not maintaining a residence in the province they represent, and even about a prominent member of the Prime Minister's Office cutting a personal $50,000 cheque to a senator to make a problem go away. One could argue, though, that the problems of the Senate were, at least in part, made worse by
Harper's own actions:
But then, on the very day he became Prime Minister, Harper decided he wanted Michael Fortier
in his cabinet. And then, a few years after, there arrived Mike Duffy,
Pamela Wallin and Patrick Brazeau. And, later, Don Meredith. Not to
mention defeated Conservative candidates,
the Conservative party’s top fundraiser, the Conservative party’s
campaign manager, and the Prime Minister’s former press secretary. And
then the Prime Minister’s chief of staff cut a cheque for Sen. Duffy.
And the Prime Minister’s Office was apparently found to have managed the
rewriting of a Senate committee’s report on Sen. Duffy. And then
charges started getting laid. And then the auditor general was called
in.
To be clear, Mike Duffy and Pamela Wallin were the most prominent senators being investigated for expense report fraud. Patrick Brazeau was kicked out of the Conservative caucus and then out of the Senate after being arrested for domestic assault and sexual assault. Don Meredith was kicked out of the Conservative caucus because of a police investigation into statutory rape. A suspicious man would suspect that Harper deliberately seeded people into the Senate in order to discredit it. More likely, however, he simply saw no legitimate function for the Senate and, so, spent little time or effort in finding senators who were qualified to exercise their constitutional functions.
What would have happened if the Conservative Party had been re-elected in November 2015? We'd have another constitutional crisis as the number of senators declined. Fortunately, his party was defeated by the Liberals. Their leader, Justin Trudeau, has taken another path to Senate Reform.
First he removed the senators who are affiliated with the Liberal Party from the Liberal Caucus. They would no longer meet with their House of Commons colleagues to formulate policy. They were on their own.
Second, he put Senate appointments at one remove from his own personal judgement. That is, he set up an impartial tribunal that would sort out applicants from the public and send the most qualified to him.
Third, he committed himself to respecting the Senate's constitutional role as the chamber of sober second thought. (He accepted two changes to assisted suicide bill, and said that those changes made the bill better; he disagreed with one change, which the Senate then decided to withdraw. The bill then passed quickly, before a deadline set by the Supreme Court).
As a result of these changes, the Senate, even though it was fresh off of a series of scandals, has suddenly started to get praise from many unexpected quarters for doing its job, and doing it properly.
Trudeau's changes are not written into constitutional or statute law. They could be undone by the will of any subsequent Prime Minister. However, they have already shown that we can get a better Senate, one that works the way that the Fathers of Confederation visualized it working, just by treating it better: making appointments according to merit and considering the amendments suggested by the second chamber seriously and respectfully, whether or not they are all accepted in the end.
