Outrage spurs calls for reform, abolition of Senate but easier said than done

NDP MP Charlie Angus holds up a deck of 'Senate Hall of Shame' collector cards as he visits the Ottawa Courthouse in Ottawa on Monday April, 13, 2015. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA - Revelations from Mike Duffy's fraud trial and a looming audit report on the expense excesses of his fellow senators will doubtless fuel demands for an overhaul or outright abolition of Canada's reviled Senate.

But before Canadians get carried away on a wave of outrage, it's worth remembering just what changing or getting rid of the Senate altogether would entail — and to consider whether the cure might be worse than the disease.

Q. What would it take to reform the Senate?

A. In a landmark decision last April, the Supreme Court of Canada advised that even modest reforms proposed by the Harper government — term limits and a non-binding, "consultative" election process for choosing senators — would require constitutional amendments approved by both houses of Parliament and at least seven provinces representing 50 per cent of the country's population (the 7/50 amending formula).

Q. What would it take to abolish the Senate?

A. The top court set that bar even higher: a constitutional amendment approved by Parliament and all 10 provinces.

Q. So why not amend the Constitution?

A. Easier said than done. There is no consensus among the provinces about reforming or abolishing the Senate. Even if there were, it's unlikely constitutional negotiations could be confined strictly to the Senate.

The Quebec government has said that any talks about the Senate would have to be broadened to deal with that province's "historical requests," such as recognition of its distinctiveness and demands for more powers — the same divisive issues on which the last two constitutional ventures, the Meech Lake and Charlottetown accords, foundered. First Nations leaders would likely insist that aboriginal issues be part of the mix as well.

Despite the hurdles, NDP Leader Tom Mulcair is willing to give constitutional negotiations a shot in order to achieve his party's long-sought goal of abolishing the Senate.

But Prime Minister Stephen Harper and Liberal Leader Justin Trudeau want nothing to do with wading back into a constitutional quagmire from which the country barely emerged intact last time.

Q. Could the prime minister indirectly kill off the Senate by refusing to fill vacancies or choking off its funding?

A. That may have crossed Harper's mind. He has not appointed a senator since March 2013, when the Senate expense scandal was heating up. There are now 18 vacancies.

However, in its historic ruling, the Supreme Court made it clear that the Senate can't be abolished by stealth.

Section 42 of the Constitution specifies that the powers of the Senate and the number of senators for each province are among those things that can be changed only with a 7/50 amendment.

That section "presupposes the continuing existence of a Senate and makes no room for an indirect abolition of the Senate," the court said. "It is outside the scope of s. 42 to altogether strip the Senate of its powers and reduce the number of senators to zero."

Whatever his inclination, Harper appears to have accepted that he'll have to start appointing senators again at some point. His government leader in the Senate, Claude Carignan, last month told senators: "I firmly believe that the prime minister will adhere to the existing constitutional process for appointments and make wise choices at a time he deems suitable, or in other words, from time to time, as the Constitution stipulates."

Vancouver lawyer Aniz Alani is hoping to make that time sooner rather than later. He's asking the Federal Court to declare that Senate vacancies must be filled within a reasonable time.

Q. So, can nothing be done about the Senate without reopening the Constitution?

A. Practical things can be done to change the way the Senate operates. Trudeau demonstrated that last year by turfing all senators from the Liberal caucus in a bid to return the Senate to its intended purpose as an independent chamber of sober second thought. Should he become prime minister, he has promised to create a blue chip advisory panel to recommend non-partisan appointments to the Senate.

Senators themselves have tightened spending rules and are voluntarily being more open about their expenses. They've set a precedent by inviting the auditor general to audit their expenses and, once he reports in June, they'll likely tighten rules further.

Other things could be done, such as televising proceedings in the chamber, but nothing as dramatic as the wholesale reform or outright abolition many Canadians tell pollsters they want.