MASTHEAD-1While many are disenchanted with Parliament these days, Stanley H. Hartt writes that certain proposals to fix the ways Senators are appointed and MPs are elected will cause more problems than they will solve.

By Stanley H. Hartt, July 29, 2015

The continuing saga of Honourable Senators exposed as proboscis-in-the-trough, high-living exploiters of the public purse, entitled to their entitlements, generates a feeling of digestive unease among Canadians. Citizens expect their appointed legislators to labour in the trenches of public service for the annual salary that goes with the honour of elevation to the upper chamber of our Parliament. This is something Senators were presumably aware of at the time they accepted their gig.

So the Auditor General’s recent revelations of widespread abuse of expense claims, some justifying criminal investigation, make the shoulders sag. Thus we come to the “reform” initiatives that Opposition postulants for office present as instant fixes (sometimes even needing to open the Constitution Act for amendment, despite the fact that, as we have learned, constitutional tinkering has been a wasteland, inducing political annihilation for prior generations of great ideas).

We forget, because we are so focussed on the excesses of self-indulgence, the characterization in his retirement address by Hugh Segal, an eminent, highly-qualified former Senator, a Conservative appointed by a Liberal Prime Minister, of his colleagues in the Red Chamber as “academics, lawyers and physicians, researchers, nurses, teachers, provincial ministers, businessmen and women, First Nations leaders, mayors, police and military leaders, privy councillors, esteemed champion sports figures, including the best hockey coach in the history of the world, philanthropists, human rights advocates, former ministers, journalists and, yes, honourably serving politicians …”

Prime Minister Stephen Harper would have preferred early on to have a Senate that was elected, equal and effective. The “elected” would have given legitimacy to the power of the body of sober second thought to approve, amend or reject legislative measures whether originating with the House of Commons or in the Senate itself. The “equal” was a genuflexion to the role of the provinces to represent regional viewpoints without regard to weighting by population. The “effective” would derive from the first two, allowing the Senate to fulfill its role under Section 17 of the Constitution Act, 1867, as a vibrant part of the Parliament of Canada.

Since first being elected Prime Minister, his continued focus on Senate reform took on less ambitious, even if highly-desirable, goals such as term limits (eight years), and measures to make the Senate a more effective and independent body, including a Senate appointment consultations process which would allow the government to consult Canadians on Senate appointments.

In April, 2014, the Supreme Court of Canada ruled that Ottawa cannot act alone to reform the Senate, limit terms or appoint only elected senators, but must have the consent of seven provinces with half the country’s population for such measures, and unanimous consent to abolish it altogether. Harper declared that “significant reform and abolition are off the table.”

But, most recently, the Prime Minister has declared a moratorium on Senate appointments, as a way to put pressure on the provinces to agree to changes to, or elimination of, the Senate. The interests of various provinces differ as to whether they see the Senate as an important forum for regional voices, as a useful body justifying the trouble and expense of organizing “elections”, or a burden that we can all do without. We will see whether foregoing filling the current 22 vacancies, after filling 59 of them since he became Prime Minister, is a sustainable strategy. Harper might ultimately be obliged to shore up his majority in the chamber in the face of resignations, retirements or deaths among the current membership if the provinces don’t blink. But this is a matter of speculation. There is also a view that the Prime Minister has a constitutional obligation to fill vacancies, albeit at a time of his choosing, and cannot resolutely decline to do so because certain current and former Senators have caused some political embarrassment.

Then there is Justin Trudeau: hoping to gain from the bad taste in the mouths of Canadians generated by the expenses plague, he first announced that Senators would no longer sit in the Liberal caucus. More recently, his party has pledged that “We stand for an open, transparent and non-partisan approach to appointing Senators – without reopening the Constitution. This process will be developed working with experts and informed by other non-partisan appointment processes, such as that of the Supreme Court Justices and Order of Canada recipients.”

There is only one problem with this – if we do not modify or limit the Senate’s statutory right to participate fully in the adoption of statutes, the roster of “approved” candidates would need to include persons who share the political philosophy, outlook and agenda of the leaders of the elected chamber, since otherwise the will of the voters who elect Members of the House of Commons could be entirely frustrated by illustrious unelected philosopher kings. Senators would be on a slippery democratic slope if they felt they could indefinitely thwart the decisions of the lower House even on matters of high principle.

The system for appointing Supreme Court Justices has recently produced some anomalous results, because of the perceived need of the Prime Minister to dig deep to select candidates who might find Parliament’s legislative output constitutionally acceptable. But it is quite another thing to insert a House of the “best and the brightest” directly into our deliberative lawmaking machinery. Presuming Trudeau does not expect the PM’s hands to be tied by convention to slavishly appoint whoever the potentates of process had placed on the list, the PM would either let vacancies sit or ask for additional names. The idea that we could constitute a 105-seat chamber of Order of Canada recipients who, answerable to nothing more than their consciences and conceit, could defy bills sent to them from below is an anti-democratic idea whose time has definitely not come.

While the American Senate routinely differs with the enactments produced by the House of Representatives, each chamber is directly elected. And when the presidency and the legislature are deadlocked  because they are controlled by different political alignments, this is the result not of academic musings about what Plato’s Utopia might look like, but of a hard-headed, intentional effort by the framers of the US Constitution to make decisions extremely difficult to attain unless they result from a general consensus within the nation. The US declared its independence at a time when the monarch’s powers were not yet fully constitutionally curtailed and the colonists feared creating a new form of dictatorship, preferring to select by ballot those who would have authority over them.

This is the perfect segue to a discussion of proportional representation or other means of weighting the voting process, by preferential ballot or otherwise. PR is held by some to be better than the constituency-based “first past the post” system we now have because, allegedly, some votes count more than others in an election by plurality. It is the perfect segue because, in the Senate selection process proposed by Trudeau, if the candidates selected by the princes of prestige don’t feel any onus to adopt laws approved by the elected representatives of the people, then no one’s vote will count at all.

The Liberal Leader has promised that, if the Liberals form the government after Oct. 19, it would be the last federal election held under the current electoral system. A special, all-party parliamentary committee would examine proportional representation and other possible replacements for Canada’s federal electoral process.

It is true that the way in which ballots are counted in the constituency-based Electoral District system mandated by the Canada Elections Act does permit, in some mathematical circumstances, a party that garners less than 40 percent of the national popular vote to win a majority government. That is a good, not a bad, thing. We have not blindly stumbled into a constitutional non-sequitur where we erroneously allowed our members of Parliament to claim their seats with the support of less than 50 percent of their electorate. We have intentionally opted to bias our selection process towards the stability of majority outcomes. This fits well with our system of responsible government where the executive branch must retain the support of the House, failing which, on any matter of confidence, the government falls, and, by convention, dissolution leads to an election where it is hoped that the will of the people will select representatives who can muster sufficient support to govern.

Where support of the legislative branch is not a pre-condition for the continued right of the executive branch to hold office, such as in the United States, this feature, plus fixed election dates, results in much less effective parliamentary discipline to ensure the consideration and adoption of the government’s program. Indeed, as mentioned above, the US Constitution prefers broad consensus to whipped votes along party lines.

But in some European and other countries where proportional representation, or ranked, transferable ballots, or combinations such as mixed member representation (partly based on  party lists, partly on direct election) are practised, we witness the instability of coalitions where political horse trading trumps the public good almost inevitably. Is that what we wish for?  If the experts of electoral Eden prefer the chaos and dysfunctionality of those regimes to our supposed excessive central control over elected legislators, they are living in a world where the pursuit of perfection assures its own demise.

If the Liberal proposal is merely naïve and idealistic, NDP Leader Thomas Mulcair leapt onto the PR bandwagon with a more practical agenda. Remembering when the Liberals were guaranteed a free pass to power by the divided right of our political spectrum, and noticing that, once the Canadian Alliance and the Progressive Conservative parties merged, things have turned out not so well for the left of centre parties, Mulcair suggested that the Liberals and the NDP don’t have to merge. They can merely propose a coalition.

Mulcair recalled the 2008 gambit by opposition parties to oust the minority Harper government. But that didn’t work for a number of reasons: it was proposed right after the Conservatives had won the largest number of seats and more popular votes than any other party. It looked like an attempt to usurp the democratically expressed will of the electorate. Moreover, to make it work, it required the support of the Bloc Québécois, not as sworn members of Cabinet mind you, but fully in support of the legislative agenda of the Lib/Dip government’s proposed agenda. The “oops” was that this kingmaker role seemed inappropriate for a party committed to the breakup of Canada.

Now, Mulcair might reason, if we can just move to proportional representation, the Liberals and NDP in the future could form a coalition which could look only at numbers derived from a pure, national popular vote. Legitimacy would be much easier to justify. The Bloc wouldn’t be needed with the same urgency as when attempting to usurp the recently expressed poll of registered voters known as an election.

If that is his calculation, it would test living memory to try to recall the last time a nation’s Constitution and electoral system were modified to suit the ambitions of one or more political formations. Yet ware are led to believe this proposal is rooted in political science and conceptual purity. In matters of electoral reform, be careful what you wish for.

Stanley Herbert Hartt, OC, QC is a lawyer, lecturer, businessman, and civil servant. He currently serves as counsel at Norton Rose Fulbright Canada. Previously Mr. Hartt was chairman of Macquarie Capital Markets Canada Ltd. Before this he practised law as a partner for 20 years at a leading Canadian business law firm and was chairman of Citigroup Global Markets Canada and its predecessor Salomon Smith Barney Canada. Mr. Hartt also served as chairman, president and CEO of Campeau Corporation, deputy minister at the Department of Finance and, in the late 1980s, as chief of staff in the Office of the Prime Minister.