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              What Should Ontario Do If Senate Reform Lite Really Is 

                       “A Constitutional Crisis Waiting To Happen”?

 

By Randall White

Former Premier Dalton McGuinty has noted in his memoirs “no other Canadians feel less attachment to their province than Ontarians...” 

And Ontarians who put Canada first may want to start wondering a little about what has been called the transition to a more independent Senate, now well underway in Ottawa.

Peter Harder, for instance, is a former federal deputy minister, appointed to the Senate of Canada by Prime Minister Justin Trudeau in March 2016.

He is also the Government Representative in the Senate. And he published a short progress report late this past December called “A Year of Change for Canada’s Senate.”

According to this report “Canadians ... are eager for an Upper Chamber free from blind partisanship, and with the independence to fulfil its duty as a chamber of sober second thought ... This is the course we are taking.” 

The obvious limited objective is to clear up the immediate Senate conundrum left by former Prime Minister Stephen Harper and the Supreme Court of Canada. 

From this standpoint, PM Trudeau’s Senate reform lite can claim some early success. He has now appointed 27 so-called “Non-affiliated” senators. That more than covers the 22 vacancies left by Mr. Harper.

To strengthen public faith in an institution that has traditionally lent itself to political manipulation, the prime minister has been assisted by an avowedly non-partisan Independent Advisory Board for Senate Appointments. 

The board has regional representation, and is chaired by former federal civil servant Huguette Labelle. It also takes applications from individual Canadians.

Justin Trudeau, as a mere party leader, began to set the stage for a more independent Senate in late January 2014, when he expelled Liberal senators from his parliamentary caucus.

Subsequently some old Senate Liberals have rejected a Non-affiliated designation. And some Non-affiliated senators have chosen not to join a new Independent Senators Group (ISG).  

Yet all 27 of the senators appointed in 2016 are listed as “Non-affiliated (ISG)” on the Senate website. It also reports the current “standings” as: Conservative Party of Canada — 40; Non-affiliated (Independent Senators Group) — 35; Liberal Party of Canada — 19; Non-affiliated — 7; Vacant seats — 4. 

Not everyone is pleased, of course. Some have complained that, despite the advisory board and the Non-affiliated appointments, the practical result remains a “Liberal Senate in all but name” on the old discredited model.

Other, deeper critics have suggested that the initial success of the Senate reform lite agenda could finally prove its undoing. 

Gordon Gibson, a former BC Liberal leader who has been pondering the subject for decades, argues that the transition to a more independent Senate is starting to look like “a constitutional crisis waiting to happen.”

On this argument, progress towards a less politically manipulated institution has already begun to make senators think their extensive theoretical powers under the old Constitution Act, 1867 can be more vigorously exercised than in the past.

Peter O’Neil in the Vancouver Sun notes, “The Senate last year temporarily blocked the government’s assisted death bill, and more recently forced Finance Minister Bill Morneau to remove a consumer-protection component of his budget-implementation bill.”

The more such things happen, the more a crucial flaw in the original Senate design will be cast in bold relief — especially in BC and Alberta (which together now account for a greater share of the Canada-wide population than Quebec).

This is the obsolete and unfair current constitutional allocation of Senate seats by province — a genuine relic of the 19th century: Quebec 24, Ontario 24, Nova Scotia 10, New Brunswick 10, and then six each for Newfoundland, Manitoba, Saskatchewan, Alberta, and British Columbia, followed by four for Prince Edward Island, and one each for the three territories.  

The debate of the past 30 years has made clear as well that the equal provincial representation proposed by the old Alberta Triple E formula (borrowed from the United States and Australia) will not work in Canada. 

Just what allocation of seats among provinces would make sense for the 21st century is in fact the most fundamental problem of serious Senate reform in Canada. 

The focus on the current transition to a more independent Senate just evades the problem. But already there are noises that suggest this may not work very much longer.

And Dalton McGuinty’s memoirs include another intriguing observation, if and when Canadians and their leaders screw up the courage to reopen the Constitution and seriously reform what a classic study of the 1920s called The Unreformed Senate of Canada, at last. 

Sometimes, Mr. McGuinty felt, the other premiers “expected Ontario to play the honest broker among the provinces, even at the expense of its own interests.”

But this might actually be a sensible strategy for a province that really wanted to put Canada first, if and when the Senate reform lite agenda does precipitate a constitutional crisis waiting to happen.  

 

 

 

 

 

 

 

 

 

 

 

About Randall White

Randall White is a former senior policy advisor with the Ontario Ministry of Finance, and a former economist with the Ontario Ministry of Municipal Affairs and Housing. He is the author of Ontario 1610-1985: A Political and Economic History and Ontario Since 1985. He writes frequently about Ontario politics.
Posted date : February 02, 2017

View all of Randall White's columns
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