Much at stake with Alberta's initiative on Senate reform:
A Senate under provincial control could change the face of Canada
by Margret Kopala

Published by the Edmonton Journal, June 7, 2003

OTTAWA - Western premiers are preparing for their conference next week at which Senate reform will be high on the agenda -- and not a minute too soon.

The actions of the current Liberal government have exacerbated tensions in the regions while the Quebec government of Jean Charest is seeking greater co-operation between various levels of government by promoting the creation of a Council of the Federation made up of representatives of the provinces.

Both issues are handily addressed by Senate reform.

The resolution calling for a constitutional amendment recently passed by the Alberta government is therefore timely, with much to commend it.

Invoking the Triple-E formula, the amendment proposes six senators per province and two per territory, elected senators and an absolute Senate veto power over legislation affecting provincial jurisdiction.

The resolution also outlines a detailed process for electing senators.

Impediments to successfully amending the Constitution abound. Though provincial governments have clear authority to initiate an amendment, they risk -- a la Meech -- opening up a Pandora's box of constitutional activity.

Still, if the provinces can steer a prudent course in tackling this particular amendment, the chances of succeeding with other amendments at a later date are improved. Falter, and any hope for constitutional change in the foreseeable future is lost. In other words, much is at stake with this important initiative from the Alberta government.

A non-partisan Senate?

In the first instance, then, the better part of wisdom suggests that the priority must be to engage all provincial governments with a view to having them agree on an amendment.

While the distribution of Senate seats has so far engendered the greatest controversy, the real stumbling block to such an agreement may be the question of who or what is being represented by the senators.

Are they the partisan representatives of a federal political party who will therefore be subject to party discipline? If, along party lines, they are required to rubber stamp or oppose legislation, how does this behaviour differ from that of current senators? If they are elected, do they become the official spokesperson for the province on the national stage? What does a premier think about that? Who pays their salaries and pensions -- the federal or the provincial government? The Alberta amendment does nothing to clarify these issues.

As a talking point, the Alberta amendment will work. One of its provisions, having an effective Senate, one with veto power in areas affecting provincial jurisdiction, will find immediate favour even though any amendment dealing with veto power must necessarily recognize that where concurrence between the houses cannot be reached and the matter is constitutionally federal, the decisive word would have to rest with the House of Commons.

Any controversy over the distribution of seats might more easily be managed if the nature of the Senate representation is clarified. In this respect, the "elected" component may be the wild card of negotiations. No provincial government worth its salt will want a senator who is anything but answerable to the provincial government of the day. Here's where the Alberta amendment goes strangely awry. The proposed amendment to Section 23(2) requires (among other things) that the senator not be a member of the legislative assembly of a province or territory. This requirement sets the stage for conflict and contradiction between the province and the elected senator.

Instead, by requiring its senator to be answerable to the provincial government, that government could simply make (for example) its minister of intergovernmental affairs its senator, without any need for extra elections.

This would take Senate reform in the direction of Germany's successful Bundesrat -- a House of the Provinces - where senators are appointed by the duly elected provincial governments and changed whenever those governments change. Many are even members of those governments.

This begs the question of why any constitutional amendment should dictate selection methods at all. Some provinces will want to elect their senators. Others may not. If we are to have a Senate under provincial control, surely any decision about selection methods must rest with individual provincial governments.

Whatever the inherent desirability of elections (and there is good cause to question having too many elections particularly where mandates of elected officials cause conflict or overlap), it is certain that some, if not all, of the provinces will not find this part of the amendment attractive.

The "elected" part of the Triple-E idea may therefore have to be satisfied by the fact that the provincial government of the day is itself elected.

Having elected two senators in waiting, Bert Brown and Ted Morton, Alberta has invested a great deal in the Triple-E concept, and contributed mightily to the national consciousness on the need for Senate reform.

But without clarification about the nature of the representation by newly selected senators, and without a clear statement that the reformed Senate is clearly under provincial control, it should be prepared for significant adjustments to its current thinking on this matter. It could start as early as tomorrow, when the western premiers get together for their annual meeting.

Margret Kopala, a former resident of Edmonton, was a Progressive Conservative candidate in Ottawa in the 1997 federal election. She was one of the 137 randomly selected Canadians who participated in constitutional conferences that led to the Charlottetown accord.

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