One of Barack Obama’s first official acts as president of the United States was to order that the Guantanamo Bay detention facility be closed by the end of 2009. Closing “Gitmo” was not just a campaign promise for candidate Obama. It was at the core of his moral case against the Bush administration. Gitmo was a symbol of everything progressives hated about the global war on terror. Rendition, torture, trial by military tribunal and waterboarding all connected back to Gitmo, itself a relic of American imperialism. For candidate Obama, Gitmo hurt US national security as a powerful recruiting tool for terrorists. When he ordered the facility closed, he stated it was time to “restore the standards of due process and the core constitutional values that have made this country great even in the midst of war, even in dealing with terrorism.”

More than six years later, Gitmo remains stubbornly open. In spite of administration plans to create a terrorist detention facility on US soil, a high-profile plan to try Gitmo terror suspects in US federal courts and a campaign by national security officials, the head count at Gitmo is down only slightly; a handful of detainees have been released to other countries. As time marches on, the US courts and the US Senate have erected insurmountable roadblocks to shrinking, let alone shuttering the facility. By 2011, Defense Secretary Robert Gates was forced to acknowledge that Gitmo was unlikely to close. The simple moral clarity of Obama’s case was ground down as the economic crisis, day-to-day events and the pressures of national security pushed Gitmo further and further down Obama’s governing agenda. Now, as Obama defends the National Security Agency’s intercept programs, American progressives see his national security efforts as being in much the same vein as the Bush administration’s.

Just as closing Gitmo was the moral core of Obama’s plans to dismantle the Bush administration’s anti-terror effort, reforming the Canadian Senate was the moral core of Stephen Harper’s plans to dismantle Laurentian, Liberal Ottawa. And reforming the Senate has been just as frustrating an issue for Harper as closing Gitmo has been for Obama. The outcomes to date are similarly disappointing. As the clock runs out on Obama’s presidency, will he mount a last-ditch effort to fulfill his promise? As time marches on, Harper is trying to buy time for one last attempt to reform the Senate if he is re-elected in October.

Reforming the Senate has long been a touchstone for Harper. Western political reformers have seen the Senate as one of the tools central Canadian politicians use to hold down the West, a byword for patronage and backroom dealing. The Triple-E plan for Senate reform, originally a nonpartisan one, soon became a plank of the Reform Party’s policy book. Prodded by Reform, the Alberta government forced a small step toward reforming the Senate as its key “get” in the Meech Lake Accord. Alberta eventually held a Senate election in 1989, and when Reform’s Stan Waters swept the polls, he ended up as Canada’s first elected senator a year later. The 2006 Conservative election platform promised a two-part effort at repairing the Senate, beginning by “creating a national process [to choose] elected Senators from each province and territory” and then continuing with “further reforms to make the Senate an effective, independent, and democratically elected body that equitably represents all regions.” In 2007, Harper made Bert Brown Canada’s second elected senator. Three more have followed, and Harper has always been clear that if other provinces held Senate elections, he would appoint the winners.

While Harper has been prime minister, his proposals to reform the Senate permanently have always avoided changes that would require federal-provincial negotiations or formal constitutional amendments. Harper has wisely avoided the enervating federal-provincial high-wire acts of Brian Mulroney (memories of Meech Lake and the Charlottetown Accord) and Paul Martin (“transformative accords” to fix things for a generation). Incremental steps using Parliament’s power to act have let him deal with some of Quebec’s constitutional concerns. His motion to recognize that les Québécois form a nation within a united Canada passed easily and closed a sore left open by the constitutional failures of the Mulroney government. Harper has also limited the federal spending power, shuttering the popular Millennium Scholarship program and resisting pressure to impose conditions on renewed federal transfer payments for health. The 2007 budget also put an end to the “fiscal imbalance” debate with a comprehensive reform to federal-provincial transfer payments. Canada has reaped a reward for this quiet activity in the historic decline of separatism in Quebec.

Unfortunately, Harper’s incrementalist approach to Senate reform has yielded no such progress on western Canada’s key constitutional issue. First, he tried Bill S-4, a proposal to shorten the tenure of new senators to a fixed term of eight years. The tenure of senators had already been shortened in 1965 to age 75, and the plain text of the 1982 constitutional amending formula allows Parliament to make similar changes without involving the provinces. Bill S-4 was introduced in the Liberal-controlled Senate, challenging Liberal parliamentarians either to cooperate in reforming the Senate or to vote down any hope of reform. The Liberals handed Bill S-4 to a committee chaired by their Senate leader, a noted Senate reform moderate, Dan Hays of Alberta. This hopeful overture convinced Harper to appear as a witness before the Hays Committee. He is the first and only sitting prime minister to testify at a Senate committee.

Harper’s presentation set out five basic arguments. He began by restating his personal commitment to urgent action on Senate reform. He told senators that appearing before the committee in person “underlines my interest in Senate reform.” He continued: “It has become a rite of passage for aspiring leaders and prime ministers to promise Senate reform on their way to the top…These statements of intent are usually warmly received by party activists, editorial writers and ordinary people but, once elected, Senate reform quickly falls to the bottom of the government’s agenda, nothing ever gets done and the status quo goes on.”

Next he argued that the unreformed Senate was not acceptable to either his government or the Canadian public. “Years of delay in Senate reform must come to an end, and it will. The Senate must change and we intend to make it happen.” Canadians, “as we all know, are not at all satisfied with the status quo.”

Then he argued the case for bicameralism. “I believe in the ideas behind an upper house.” Canada needs a Senate that provides “sober and effective second thought…that gives voice to our diverse regions [and has] democratic legitimacy.” Fourth, he said he was flexible about the details of Bill S-4. He indicated he would accept amendments to set the tenure for senators at six years, as recommended by the Beaudoin-Dobbie report, or nine years as proposed by the Senate’s own Molgat-Cosgrove report, but not 15, 30 or 45 years. The key to Bill S-4, in his view, was not the precise term of office but that it “does go somewhere, somewhere reasonable and somewhere achievable.” Proceeding with S-4 would unblock the reform agenda. He concluded by promising a second bill to “create a process to choose elected senators.” The Hays Committee went on to hear from a wide range of legal and constitutional experts. In October 2006, it reported that, in the view of most committee members, Bill S-4 was clearly constitutional and a defined limit to the tenure of senators would be an improvement over the status quo.

Hays’ careful language probably papered over divisions in the Liberal caucus. But when Hays put his name to supporting Bill S-4 in principle, he opened room for Harper and the Liberals to reach a compromise. Only a few days after Stéphane Dion became Liberal leader, Harper made his next move. The government introduced Bill C-43, a bill to allow a prime minister to call an election before appointing senators. Bill C-43 was a mild measure, intended to avoid amending the text of the Constitution. Nothing in the bill tied a prime minister’s hands: a vote was not required before appointing senators and the prime minister could ignore the results of a vote, as prime ministers had done since Waters was appointed. All Bill C-43 did was authorize the expenditure of money for a vote and set some simple rules for conducting it. The constitutional legitimacy of advisory elections had been accepted when Waters went to the Senate in 1990. Bill C-43 would have reinstated a similar election process. The fate of this bill was in the hands of the House of Commons, where the Liberals, NDP and Bloc Québécois together held a majority of seats.

Dion was no stranger to the principled and tactical issues at stake. He had spent a dozen years as an academic political scientist and then seven as minister of federal-provincial relations before becoming Liberal leader. Moreover, he represented a clean break from the patronage and backroom history of the Liberal Party. In February 2007, Dion criticized Bill S-4 but indicated he would support the Bill if it limited senators to a term of 12 or 15 years instead of just eight. Harper was already on the record rejecting a 15-year term, and a 12-year term was not supported by any of Parliament’s previous reports on the subject. But Harper decided to see if he could come to terms with Dion on reforming the Senate. After all, an early compromise on Senate reform would have been a big “get” for Dion, letting him make a dramatic break from old-style politics.

High-level negotiations yielded no agreement and quickly fell apart. Conservatives concluded that Dion’s conciliatory comments were insincere. This conclusion was vindicated when the Liberals referred Bill S-4 to the Senate Committee on Legal and Constitutional Affairs. Dion had replaced Hays as Liberal leader in the Senate by reform hard-liner Céline Herveux-Payette. Under her leadership Senate Liberals renounced the careful moderation of the Hays Committee’s report. Instead, they now demanded that the constitutionality of Bill S-4 be referred to the Supreme Court. The Liberals gave no quarter on Bill C-43 in the House, either. The momentum behind Senate reform was waning. The economy started to wobble in mid-2007, and a year later it slid into a deep crisis. After the 2008 federal election, the Harper government’s agenda for democratic reform changed. Eliminating the quarterly subsidy to federal parties and improving representation by population in the House took priority over Senate reform. This ended any possibility of a compromise on democratic reform with any opposition party, and the government’s focus soon shifted to confronting the economic crisis.

Harper put Senate reform further behind him in the midst of the 2008-09 prorogation episode when he appointed 17 Conservative senators in January 2009. He would go on to appoint a further nine over the year. And he did not stop when the Conservatives had a majority in the Senate. He kept appointing Conservatives; as of this writing, he has appointed 59 senators in total, including the four with democratic mandates from Alberta voters. Even with a majority in the Senate, Harper did not call the successors to Bill S-4 for a vote.

All of Harper’s appointees were highly qualified Canadians from many walks of life, including a university president, a retired police chief and a famed hockey coach. He appointed business leaders, philanthropists and former provincial and territorial politicians. He appointed the first Canadian senator of Korean descent. He appointed a successful tradesman and an Olympic gold medallist. The two high-profile journalists and the former Aboriginal activist he appointed were eventually embroiled in scandal. After years of railing against Liberal Senate scandals, Conservatives were caught flat-footed by having Senate scandals of their own. It hardly mattered that one prominent Liberal was also at the centre of a scandal and criminal charges. Harper had appointed the senators in trouble. Since they were not elected by voters back home, he had to deal with the outrage over their actions. The Senate’s status quo, which Harper said was “unacceptable” in 2006, was catching up to him.

Then the provinces moved in to cement the status quo. The Quebec government, with the Commons’ recognition of the “Québécois nation” on the books, challenged Harper’s Senate plans in court, a move that neatly blocked western constitutional aspirations. In 2013, the Saskatchewan government, which had passed Senate election legislation in 2009, repealed that law, and Premier Brad Wall announced he was now in favour of abolishing the Senate. Abolition is unlikely given Canada’s constitutional amending formula, so Wall’s change of heart reinforced the current Senate and its arrangements.

Having lost the initiative, Harper did what the Hays Committee had said he did not need to do: he referred the question of Senate reform to the Supreme Court. And whereas Harper had appeared before the Hays Committee in person, he did nothing to draw attention to the reference case, and it was handed over to Justice Department lawyers. The Supreme Court moved slowly on the reference and did not issue a decision until April 2014. The Court, which, as Ted Morton notes, played such a constructive role in promoting constitutional change during the patriation battles in 1981, took the final step in protecting the Senate status quo. But whereas the Court’s 1981 decision on patriation was based on “questionable jurisprudence,” in thwarting Senate reform the Court simply ignored the plain language of the Constitution on who had the power to change the Senate. It invented new rules out of whole cloth, arguing that changes to the tenure of senators would change its very essence as an upper house and would require provincial consent. Even giving the prime minister of the day the option to consult voters before making an appointment was unconstitutional. Changing the term of senators and providing even the option of purely advisory elections would require approval from the House, the Senate and 7 out of 10 provincial legislatures. If the US Supreme Court had taken such an approach, the US Senate would never have been elected.

The decision gave Harper no room to proceed with incrementalist reforms. It was a rebuke not only to the government but to the Hays Committee and to other Senate committees on the topic since 1982. What’s more, the decision implies that the appointments of Stan Waters, Bert Brown and the other elected senators were unconstitutional. Harper responded to the Court by announcing he would not propose any further constitutional amendments. Instead, he said, he would focus on minimizing the cost of the Senate. As long as the Senate passed his government’s legislation, he said he was satisfied with the status quo. Liberal Leader Justin Trudeau has stepped into this vacuum to propose a semblance of reforms. He ejected senators from the Liberal caucus and promised, if elected, to implement an “open, transparent and public process for appointing and confirming Senators.” It’s hard to see how these reforms involve changing the status quo in the Senate.

But at least Trudeau forced Harper back to the issue. Just before calling the current federal election, Harper travelled to Saskatchewan for a joint appearance with Premier Wall. Ahead of the appearance, media reports said he would join Wall’s call for the abolition of the Senate. But instead Harper surprised reporters by promising a formal moratorium on further Senate appointments. He had left nearly two dozen seats vacant in the wake of the Senate expense scandal. Now he would campaign on the principle of not appointing any more senators.

If Harper is re-elected and the moratorium goes into effect, the Senate is unlikely to empty out of members anytime soon. Senate Speaker Leo Housakos is still in his 40s and might not retire before 2043. Some observers suggest that refusing to appoint senators would impair the Senate’s ability to function, and they raise the possibility of the Supreme Court or the governor general forcing a prime minister to make appointments. This wild speculation is, frankly, silly, but in any case is beside the point. The Senate will be able to function quite comfortably for at least four years after the next election.

If Harper is re-elected, his moratorium on appointments means the cause of reforming the Senate lives to fight another day, probably under another prime minister. In 2007, when speaking in front of Australia’s Parliament, Harper mused that if the Canadian Senate is not reformed, it must, like the upper houses of the provinces, vanish. This would be unfortunate. As Harper reminded senators in his 2006 testimony, bicameralism is valuable itself. But the Senate must be effective to contribute to bicameralism, and to be effective it needs a democratic mandate. That remains the key choice: an effective and therefore elected Senate contributing to Canadian constitutionalism or no Senate at all. The status quo does not serve any constitutional purpose.

Could Harper move ahead on an incrementalist agenda for reforming the Senate? The Supreme Court has left open one small possibility. Harper and Premier Philippe Couillard, acting together, could abolish the antiquated rule requiring Quebec’s senators to be appointed for each of the 24 original electoral divisions of Lower Canada. This rule prohibits the appointment of senators covering the northern portion of the province. The Court’s decision also opened the door to quick action to abolish the property qualification for senators. And then, if these amendments pass, Harper and Couillard could, together, propose a constitutional amendment that simultaneously recognizes the Québécois as a nation within a united Canada, shortens the tenure of senators and provides for Senate elections. If they successfully press the other provinces to ratify either amendment, they would go down in the history books as the greatest constitutional reformers in Canadian history since Confederation.

Of course, if Harper loses, one of his opponents will get the next move. Tom Mulcair has promised to abolish the Senate, a recipe for reinforcing the status quo. Justin Trudeau’s plan for appointing “qualified” senators is a recipe for doing the same. Just as Barack Obama looks to be leaving the White House without having closed Gitmo…

Ian Brodie
Ian Brodie is associate professor in the Law and Society Program at the University of Calgary. He was chief of staff to former prime minister Stephen Harper from 2005 to 2008.

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