Updates from Canada: don’t call it constitutional reform

andrew-cookIn October 2015 a Liberal government took office in Canada with commitments to both electoral and second chamber reform. In this post Andrew Cook provides an update. He reports that so far Senate reform has made the greater progress: following the introduction of a new appointments process, a plurality of Senators are now independents. Although a special parliamentary committee has considered options for electoral reform it remains unclear whether the government will be able to make good on its pledge that future federal elections will be conducted under a system other than first-past-the-post.

The government of Justin Trudeau came to power in October 2015 with a wide-ranging platform that included several propositions touching on the operations of the Canadian constitution. As was outlined on this blog at the time, the proposals range from introducing a dedicated Prime Minister’s Question Period in parliament, to reforms of the electoral process that would increase the autonomy of the Chief Electoral Officer and create an independent commission to organise leaders’ debates during election campaigns. The two most significant, and politically challenging, reforms proposed by the Liberal government were a focus of its agenda in 2016. Both electoral reform and reform of Canada’s second chamber, the Senate, have advanced since October 2015 but in different ways. It is worth reviewing the current state of reform in light of the recent developments on both these files.

Senate reform

Reform of Canada’s appointed Senate has long been discussed, and re-emerged as a key issue in the last federal election as a result of a Senate expenses scandal that eventually led to the resignation of then Prime Minister Stephen Harper’s chief of staff.

Harper’s own relatively modest proposals for reform were previously deemed fundamental to the country’s constitutional framework, and therefore requiring substantial provincial consent, so he abandoned them and simply stopped appointing Senators.

The recent return to constitutional debate, which dominated almost two decades of Canadian political life, has not brought with it a renewed interest in reforming the written constitution. Justin Trudeau has repeatedly stated that he does not want to re-open the constitution, which he rightly fears ‘would require protracted constitutional discussions with the provinces.’ Hence rather than considering large-scale Senate reform, such as introduction of elections, Trudeau has created an Independent Advisory Board on Senate Appointments – an attempt to move towards a non-partisan and merit based appointment process. The board selects five candidates for each Senate vacancy, with the Prime Minister making the final decision on who is appointed.

Because there were so many vacancies left by Harper (22 out of the total 105 Senate seats), new appointments by Trudeau resulted in a plurality of Senators being independents by November 2016. They will work together on matters of Senate rules and logistics but will otherwise vote independently. This new reality will have major impacts on both the operation, and role, of the Senate.

This is the first time since confederation that a majority of Senators are not aligned with either the Conservative or Liberal caucuses, and most procedures are intended to support a government and opposition caucus. In order to keep the Senate functioning, the Leader of the Government in the Senate has been replaced by the Representative of the Government in the Senate. The Representative is Peter Harder, an independent Senator tasked with introducing, promoting, and defending government bills – a complicated task without the traditional tool of party discipline. Additionally, the size of Senate committees was increased to reflect the make-up of the Senate (committees are now 40 per cent independents, 40 per cent Conservative and 20 per cent independent Liberals). Independent Senators were also allocated an office budget. More procedural changes are expected as the Senate adapts to its new make-up.

These reforms appear to be leading to changes in the way Senators conceive their role. Although the full implications remain uncertain, it appears as though an independent, less-partisan Senate will be more active in reviewing and amending legislation.  This new self-conception has already had an effect on the work of the Senate, with the Senators exercising more influence on government legislation than they have in the recent past. Perhaps most interestingly, the Senate sent amendments to broaden a law legalising physician-assisted suicide for terminally ill people back to the House of Commons. When the House rejected these amendments, the Senate relented because, as described by Harder, ‘… we are appointed, that authority has been restrained, self-restrained.’

As the Senate adapts to this new reality, debate over its role is certain to continue. Some have speculated that in the near future, there will be no clear delineation between government and opposition. As it stands, the Senate looks to be on a path to a more active, non-partisan future. It appears as though calls for small, incremental reforms were prescient – which is in line with lessons from Lords reform in the UK. Canada may have made the minor but necessary reforms to its Senate that were long sought.

Electoral reform

While Senate reform has progressed with relatively little opposition, plans for electoral reform have been bungled by a rookie minister. The promise that ‘2015 will be the last federal election conducted under the first-past-the-post voting system’ appears it have hit a snag. As was detailed here in May 2016, electoral reform has a long history in Canada and repeated failures throughout the 2000s highlight the difficulty with pursuing reform when each party prefers the reform that would benefit them electorally (or no reform at all in the case of the Conservatives).

In an attempt to avoid some of the usual pitfalls the government formed a Special Committee on Electoral Reform, but under pressure from the opposition parties did away with the traditional formula for allocating committee seats and instead issued these based on share of the popular vote, thus ensuring that no party had control of the committee. This novel approach was meant to undercut the usual accusation of self-serving reform, and avoid Conservative calls for a referendum.

The committee’s final report, presented to the House on December 1, recommended that a referendum be held on whether to stay with the first-past-the-post system or switch to proportional representation. The Liberal committee members did not endorse the final report, instead penning a supplementary opinion claiming there was no clear mandate for reform as a result of low-levels of public engagement. It seems as though the novel committee structure did not prevent the self-interest that has so often stymied reform in the past, but encouraged the opposition parties to arrive at a compromised position.

After having attacked, and then apologised for attacking, the committee’s report, the government has launched a fresh round of public consultations. The new survey (which is worth checking out for those interested in electoral reform), much derided by opposition parties and in the media, is designed to get at underlying democratic values. The survey questions are drawn heavily from the academic literature on electoral systems and the harsh reception may hold lessons for public engagement going forward. The fall-out from this disjointed process has been a cabinet shuffle, and the appointment of a new Minister for Democratic Institutions. With only three months until their self-imposed deadline to introduce legislation to enact electoral reform the path forward for the government is as unclear as ever.

About the author

Andrew Cook is a Research Associate (Policy Officer) at the Constitution Unit.

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