Government of the Kludge


You’d think that something so esoteric as senate reform wouldn’t raise such passions, but it has. Put Pamela Wallin and David Christopherson in a room together, and only one of them’s coming out (and, frankly, my money’s on Wallin).

Things got even more interesting when you hear that some Conservative senators — some of whom were appointed by Harper on the understanding that they’d only serve eight year terms (as opposed to serving until they’re 75, which is the current standard) — are now balking at the idea of resigning. The move reportedly has Stephen Harper upset, leading some in his circle to speculate that he might abolish the senate altogether.

If he did that, he’d have the support of the NDP, at least, who see no future in the upper chamber. The one problem with Harper’s brazen move is that abolishing the senate would require a constitutional amendment. The reason we are here, with senators who have been asked politely to give up their posts after eight years of service, is because Harper tried to institute senate reform without reopening the constitution.

The constitution is clear on how you change the make-up and powers of the senate. Section 42.1.b and c says that changes to “the powers of the Senate and the method of selecting Senators” as well as “the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators” can only be amended in accordance with subsection 38(1), which states:

“An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.


This means that altering the senate, or even eliminating it, requires the approval of both the House of Commons, the Senate, and at least seven provinces together representing fifty percent of the population of the country.

We can freely curse Trudeau for this. This is an excerpt from the Constitution Act that his government brought into law in 1982, with the approval of all the provinces, except Quebec. To me, the idea that the federal government should be allowed to set up elections for senators seems a no brainer, and it seems silly that such an amendment should be treated the same way as redistributing the senate seats among the provinces. The latter actually affects the provinces, the former doesn’t. Applying this amendment formula makes the prospect of constitutionally mandated senate elections dim.

This is probably why Harper has been slow to pursue real senate reform. It’s one thing to push a resolution through a minority parliament, but getting seven provincial legislatures to agree, especially when the senate you appointed is getting ornery, seems a daunting task. So, Harper has taken an incremental approach, asking his senators politely to resign after their eight year terms are up, encouraging the provinces to set up senate elections so that he can appoint the winning candidate to the upper chamber. And, so far, it’s come to naut.

My advice to Harper? Roll up your sleeves. If you believe senate reform is a priority, make it a priority, and don’t be afraid to call a constitutional conference on the matter.

Opposition leader Jack Layton seems willing to roll up his sleeves and make constitutional changes in terms of abolishing the Senate and revisiting Quebec’s place in Canada. He’s been criticized for his stance by Liberals like Warren Kinsella who remember the pain this country endured when we tried to change the constitution back in the early 90s. Admittedly, two big constitutional packages ended up failing spectacularly, and we spent the next four years staring down the barrel of a referendum on Quebec independence. That’s reason enough for caution, but it’s no excuse for timidity.

If Stephen Harper or Jack Layton believe — as do the people who elected them — that our country is flawed at the design level, then they need to fix the design flaws. Requesting that senators voluntarily resign after their non-constitutional eight-year-terms are up, asking that provinces run elections to produce a list of candidates for a prime minister to appoint, all amounts to papering over the flaws of the constitution. It’s kludge government; our democratic institutions maintained by bailing wire and spit. It does nothing to fix the problems at their root. Jack Layton believes in fixing problems at their root, and I respect that. If Harper were willing to follow through on his convictions and seek a constitutional amendment to reform or abolish the senate, I’d respect that as well.

The constitutional wrangles that we experienced in the late eighties and early nineties have been called Canada’s national toothache. It’s understandable that we don’t want to visit the dentist again. But toothaches can become abscesses, and abscesses can kill you. If we believe that there’s room for this country to improve, we must never be afraid to take whatever steps are necessary to improve it. Even if that means reopening the constitution.

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