Author: Stéphane Dion

Stéphane Dion is the member of Parliament for Saint-Laurent–Cartierville and former Leader of the Liberal Party of Canada.
Book Reviews

Jacques Parizeau’s house of cards

Stéphane Dion reviews Chantal Hébert and Jean Lapierre’s The Morning After

By
Issue 36

Le français suit



Chantal Hébert with Jean Lapierre,
The Morning After: The 1995 Quebec Referendum and the Day that Almost Was
Toronto: Alfred A. Knopf Canada, 2014.
320 pp

This is a credible book. It was written by one of our most accomplished political journalists, and certainly our most bicultural one. Chapter by chapter, Chantal Hébert weaves a clear and succinct summary of 17 interviews conducted with the main actors in the 1995 Quebec referendum and some federal and provincial leaders of the time. She asked every one of those political actors the same questions: What would you have done if the Yes had won? What do you think would have happened? As I write this, none of the 17 personalities have complained that they were misquoted. And for most of these interviews, Hébert benefited from Jean Lapierre’s extraordinary experience combining politics with on-the-ground journalism.

Both authors insist that they tried not to let their personal opinions influence how they reported these interviews. In my view, they have met their objective. Since my own personal opinions on the issue are well known, what I have done for this review was to check whether or not their description of the facts supported or contradicted my opinions. I believe I can show that it actually strengthened them.

Paradoxically, it is Lucien Bouchard who recently, in a single sentence, summed up what I believe could have happened if the Yes had won. About the time The Morning After was published, Bouchard was interviewed about the unilateral declaration of independence Jacques Parizeau envisaged if the Yes side had prevailed in the 1995 referendum. This, freely translated, was Bouchard’s response: “It would have been dramatic, it shouldn’t happen that way, because it would be chaos the day after.”1

It was precisely to avoid such chaos that a few months after the 1995 referendum I accepted Jean Chrétien’s offer to be his Minister of Canadian Unity. I was convinced that the process put in place by Jacques Parizeau could not have led to independence. It would have led to chaos or at least to months of turmoil, bringing no good to anyone. The shock would have been felt throughout Canada but nowhere more than in Quebec and particularly in Montreal. Contrary to what has often been said about my actions or motives, it was not to protect Canada from Quebec that I pushed hard to clarify the rules of secession. I did it as a Quebecer who did not want his society to be profoundly divided in the aftermath of a future Yes vote, without a legal framework to help overcome its internal divisions.

Reading The Morning After did not shake my conviction, but strengthened it. The book should be recommended to those who keep repeating, ad nauseam, that Canada came within inches of a breakup on the eve of October 30, 1995. We will never know for sure what would have happened if some 50,000 voters more had voted Yes rather than No. But the least that can be said is that, after reading the book, secession is not the most likely scenario that comes to mind. However, secession is the scenario The Morning After lays out in greatest detail, thanks to the interview with Jacques Parizeau, the core of the book.

In his own interview, Jean Chrétien declares that he had other cards to play if the Yes had won, but refuses to disclose them to Hébert and Lapierre. Even during the referendum campaign, he kept his intentions hidden from his ministers and closest collaborators, fearing that any mention of defeat could discourage the No activists in the middle of the campaign. So we know now what Premier Parizeau had in mind, but Prime Minister Chrétien’s intentions at the time remain unknown; what is well known is his firm determination to oppose any secession attempt based on a referendum result that was less than clear.

Jacques Parizeau wanted to rush into secession without waiting. His “nightmare” was that negotiations would bog down; he would not have hesitated to declare independence unilaterally to break the logjam. He believed that the political and economic partnership mentioned in the referendum question had no chance of being accepted by the Canadian side. What he was hoping for was a short, businesslike negotiation, limited to the modalities of separation, to be held between technocrats from Quebec and the rest of Canada. In his interview, he evokes Czechoslovakia’s Velvet Divorce: “The Slovaks said that they wanted to leave and the Czechs said good riddance. Within a year they had agreed to a sharing of assets and had gone their separate ways.”

Parizeau kept his negotiating team at the ready. They were his trusted experts who would eventually take over from Lucien Bouchard, who in theory was the chief negotiator. Quebec finance department officials already had their plane tickets to the world’s major financial capitals. Parizeau had set up a $17 billion contingency fund to soothe the financial markets. He had a list of federalist personalities whom he had identified as prepared to accept the result, which he planned to publish the following day in the Quebec newspapers. Montreal Mayor Pierre Bourque was supposed to issue a similar statement. The National Assembly would have been convened within 48 hours and would have also issued a statement of acceptance of the result. Contacts had been made with members of France’s political class to encourage them to support such a statement.

According to Parizeau, the Cree and Inuit, having signed the James Bay Convention, could hardly have upheld their right to remain in the Canadian federation. Farther south, where Quebec’s nonsignatory Innu and Mohawks resided, Parizeau was ready to “just let the Canadian government continue to oversee those territories.”

The basis of the Parizeau plan was known before The Morning After was published, the most salient exception being the startling new revelation that he had not ruled out an eventual partition of Quebec territory. I have already had the opportunity of explaining elsewhere what was wrong with the whole Parizeau plan. I am convinced that Parizeau’s scenario would have collapsed like a house of cards.

Unlike Czechoslovakia in the aftermath of Communism, Quebec and the rest of Canada are well-established democracies. It is hard to imagine that the people of Quebec, having expressed their will in a referendum, would have just stepped aside and let dispassionate negotiators take over the whole thing. Public opinion and interest groups of all kinds would have continued to express themselves in Quebec and the rest of Canada alike. Parizeau would have been unable to confine these voices to a “lobster trap,” to quote his own words.

Let’s not forget that support for the Yes was very fragile. Having been boosted artificially through the use of a confusing question (according to the polls conducted at the time, half the voters thought that independence was conditional on the successful negotiation of a political partnership), it would likely have melted away as soon as the first difficulties arose in the negotiations. How would Quebecers have reacted to Parizeau’s gambling with their savings in the – undoubtedly vain – hope that this would placate the markets? Not to mention that rumours of ballot box shenanigans circulating at the time would have done nothing to calm people down.

Inevitably, legal issues would have been raised. Parizeau would have been forced to raise them himself in order to impose his authority on Quebecers – including the Cree and Inuit. However, he had no authority to take Canada away from those Quebecers who wanted to keep their country. The law would have been on their side. The Parizeau government’s secession initiative had already been called into question: Judge Lesage of the Superior Court of Quebec ruled that a secession attempt would be “manifestly illegal” and would pose “a serious threat to the applicant’s rights and freedoms as guaranteed under the Canadian Charter of Rights and Freedoms.”2

Regarding international recognition, it is very unlikely that Quebec would have been recognized as an independent state against the will of the Canadian government. There is no precedent for such recognition. President Clinton’s briefing notes show how the United States would have reacted: “Since the Canadians have yet to work out their future constitutional arrangements, it is premature to consider the question of recognition of Quebec.”3

For all those reasons, I am convinced that the Parizeau plan was bound to fail. The interviews in The Morning After, which all point to such failure, only strengthen my conviction.

In the first place, the Yes camp would likely have splintered. Neither Lucien Bouchard nor Mario Dumont intended to let Parizeau push them aside after the referendum. Bouchard was the popular man, the champion of the Yes camp. If he and Dumont had broken with Parizeau, the effects on public opinion regarding Parizeau and his secession project would have been negative.

Second, Parizeau was overly optimistic about an eventual buy-in by federalist Quebecers. The statement by well-known federalists that according to him was to have been published in the media did not speak of independence; it only called for a summit on the challenges Quebec would be facing. The Morning After depicts a Daniel Johnson, a Lucienne Robillard and a Jean Charest with no inclination to buy into independence in the event of a weak Yes victory.

Finally, the Parizeau plan could only have worked if a Canadian negotiation team could have been set up quickly, before a majority of Quebecers could turn against secession. The Morning After shows that quick formation of a team would have been highly unlikely: the federal ministers and provincial premiers Chantal Hébert interviewed all discount the possibility of a political and economic partnership being negotiated at the time. On that issue, Parizeau was right. Even speedy negotiation of a separation agreement was out of the question.

Preston Manning was the only one prepared to negotiate secession on the basis of a weak majority, and he would have imposed very tough conditions. And the other politicians at the federal level and in anglophone provinces who were interviewed for the book would not have accepted Manning as Canada’s chief negotiator. The priority for Premiers Roy Romanow of Saskatchewan, Mike Harris of Ontario and Frank McKenna of New Brunswick was to protect their provincial interests. A hasty departure by Quebec, even if it had been possible, was not their first choice; banking on Quebec opinion turning away from secession was their preferred option. As McKenna concluded, “You’d get a certain amount of buyer’s remorse . A certain amount of people would have said: What have we done? What does this really mean?”

That was also the opinion of Jean Chrétien’s ministers and close advisers. As Bob Rae said,“The way the referendum was built, no one could assume that the country was finished, that the question did not lend itself to that inevitable conclusion.”

In sum, secession in a democracy cannot be done unilaterally, outside the legal framework. It requires negotiation. Many months would pass between the evening of a Yes vote and the conclusion of a separation agreement – dividing a modern state in two is a huge and difficult task. If support for secession is going to be able to resist the difficulties inherent in such negotiations, a clear expression of support is an essential starting point. By banking on confusion rather than clarity, by eschewing the legal framework, Jacques Parizeau’s secession project was doomed to fail. Of this I am even more convinced after reading the reference book that The Morning After has already become.

 

Le château de cartes de Jacques Parizeau

Chantal Hébert et Jean Lapierre,
Confessions post-référendaires. Les acteurs politiques de 1995 et le scénario d’un Oui.
Montréal : Les éditions de l’Homme, 2014.
288 pages.

Voilà un ouvrage fort crédible. Il a été rédigé par l’une de nos journalistes politiques les plus aguerries, et certainement la plus biculturelle. Au fil des chapitres, Chantal Hébert résume avec clarté et concision 17 entrevues conduites auprès des principaux acteurs du référendum québécois de 1995 et de certains des dirigeants fédéraux et provinciaux de l’époque. À chacun de ces acteurs politiques, elle a posé les mêmes questions : qu’auriez-vous fait aux lendemains d’un Oui ? Que ce serait-il passé selon vous ? À ce jour, aucune de ces 17 personnalités ne s’est plainte de ce que ses propos auraient été mal rapportés. Mme Hébert a d’ailleurs bénéficié, pour la majorité de ces entrevues, de l’aide de Jean Lapierre qui allie, comme pas un, l’expérience de la vie politique à celle du journalisme de terrain.

Les deux auteurs affirment avoir tenté de rapporter ces témoignages sans les soumettre au filtre de leurs opinions. À mon avis, ils y sont parvenus. Ma propre opinion personnelle sur cette question étant bien connue, j’ai vérifié si les informations contenues dans ce livre la confirmait ou l’infirmait. Je crois pouvoir montrer ici qu’elles l’ont confortée.

Paradoxalement, c’est Lucien Bouchard qui, récemment, a résumé en une seule phrase ce qu›auraient pu donner, selon moi, les lendemains d’un Oui. À peu près au moment de la sortie de Confessions post-référendaires, voici ce qu’a déclaré M. Bouchard lors d’une entrevue, à propos de l’éventuelle déclaration unilatérale d’indépendance que projetait de faire Jacques Parizeau si le Oui avait prévalu au référendum de 1995 : « Mais ça aurait été dramatique, il ne fallait pas que ça arrive comme ça, il ne fallait pas parce que c’est le chaos le lendemain1 ».

Eh bien, c’est précisément pour éviter le chaos que j’ai accepté l’offre de Jean Chrétien de devenir son ministre de l’unité canadienne quelques mois après le référendum de 1995. J’étais persuadé que la procédure mise en place par Jacques Parizeau n’aurait pas mené à l’indépendance. Elle aurait conduit au chaos, ou du moins à des mois de turbulence qui n’auraient valu rien de bon pour personne. La secousse aurait été ressentie partout au Canada, mais nulle part davantage qu’au Québec même, et à Montréal en particulier. Contrairement à ce qu’on a souvent dit de moi, je n’ai pas poussé à la clarification des règles de sécession pour protéger le Canada du Québec. Je l’ai fait en tant que Québécois, qui ne voulait pas voir sa société profondément divisée aux lendemains d’un Oui, sans cadre juridique pour surmonter ses divisions.

Disons que la lecture de Confessions post-référendaires n’a rien fait pour m’ébranler dans ma conviction, bien au contraire. Il faut recommander ce livre à tous ceux qui répètent ad nauseam que le Canada est passé à deux doigts de la rupture au soir du référendum du 30 octobre 1995. On ne saura jamais avec certitude ce qui se serait passé si, disons, quelque 50 000 électeurs de plus avaient voté Oui plutôt que Non. Mais le moins qu’on puisse dire, c’est que le scénario d’une sécession n’est pas celui qui ressort comme le plus plausible à la lecture de ce livre. C’est toutefois le seul scénario qui y est énoncé de façon élaborée. On en trouve la description dans le témoignage de Jacques Parizeau, laquelle donne à ce livre son épine dorsale.

Dans son témoignage, Jean Chrétien affirme qu’il avait des cartes à jouer en cas d’un Oui, mais il a refusé de les révéler à Hébert et Lapierre. Même à l’époque du référendum, il s’était montré très secret quant à ses intentions, n’en parlant ni à ses ministres ni à ses collaborateurs les plus proches, de crainte que l’évocation de scénarios de défaite ne décourage les militants du Non en pleine campagne référendaire. On sait donc ce que le Premier ministre Parizeau envisageait de faire, mais pas ce que le Premier ministre Chrétien avait en tête, sinon qu’il était bien déterminé à résister à une sécession qui aurait été tentée sur la base d’un résultat qui aurait manqué de clarté.

Jacques Parizeau, quant à lui, entendait foncer vers la sécession, sans attendre. L’enlisement, le marécage des tables de négociations, c’était son « cauchemar » et il n’aurait pas hésité à faire une déclaration unilatérale d’indépendance pour tenter d’en sortir. Il ne croyait pas que le partenariat politique et économique énoncé dans le libellé de la question ait les moindres chances d’être accepté par la partie canadienne. Il voulait une négociation d’affaires aussi courte que possible, entre technocrates du reste du Canada et du Québec, ne portant que sur les modalités de la séparation. Il donne l’exemple du divorce de velours Tchécoslovaque : « Les Slovaques disent : “on veut s’en aller” et les Tchèques répondent : “Bon débarras. Asseyons-nous à une table et on partage les affaires.” Cela s’est fait en un an ».

Parizeau tenait prête son équipe de négociateurs, des experts qui avaient sa confiance et qui aurait pris le pas sur celui qui était en théorie le négociateur en chef, Lucien Bouchard. Des fonctionnaires du ministère québécois des Finances avaient déjà leurs billets d’avion pour les grandes capitales financières du monde. Parizeau avait constitué une réserve de 17 milliards de dollars dans le but de calmer la tourmente dans les marchés financiers. Une liste de personnalités identifiées au camp fédéraliste prenant acte du résultat aurait été publiée le lendemain dans les quotidiens québécois. Le maire de Montréal, Pierre Bourque, devait faire une déclaration dans le même sens. Convoquée dans les 48 heures, l’Assemblée nationale aurait elle aussi fait une déclaration moratoire de ralliement. Des contacts avec la classe politique française avaient été pris pour qu’elle appuie cette déclaration.

Selon Parizeau, les Cris et les Inuits ayant signé la Convention de la Baie-James, ils auraient pu difficilement faire prévaloir un droit de rester dans la fédération canadienne, Mais pour les parties plus méridionales du Québec, où vivent les Innus et les Mohawks, qui n’avaient pas signé de tels traités, Parizeau était prêt à « laisser le fédéral s’arranger avec la gestion de ces territoires ».

L’essentiel de ce plan Parizeau était déjà connu avant la parution de Confessions post-référendaires, l’exception la plus notable étant la révélation choc du fait qu’il envisageait la partition possible du territoire québécois. J’ai déjà eu l’occasion d’expliquer ailleurs ce qui ne va pas dans ce scénario Parizeau. Je suis persuadé que ce plan se serait effondré comme un château de cartes.

Contrairement à ce qu’était la Tchécoslovaquie au sortir du communisme, le Québec est une démocratie bien établie, tout comme le Canada tout entier. On ne peut pas imaginer que le peuple québécois, après s’être exprimé au référendum, aurait évacué la scène pour n’y laisser que des négociateurs dénués de passion. Les opinions publiques et les groupes d’intérêts de toutes sortes auraient continué à s’exprimer – comme dans le reste du Canada d’ailleurs. Parizeau n’aurait pas pu les enfermer dans une cage à homards, pour reprendre son expression.

Il faut garder en tête la fragilité de l’appui au Oui, qui aurait probablement fondu comme neige au soleil aux premières difficultés, tellement il avait été gonflé artificiellement par une question confuse : selon les sondages de l’époque, la moitié des électeurs pensait que l’indépendance était conditionnelle à la négociation d’un partenariat politique. Comment les Québécois auraient-ils réagi en apprenant que Parizeau risquait leurs épargnes dans l’espoir, sans doute vain, de calmer les marchés ? Sans compter que les rumeurs de traficotage dans les urnes qui couraient à l’époque n’auraient rien fait pour calmer les esprits.

La question juridique se serait inévitablement posée. Parizeau n’aurait eu d’autre choix que de l’évoquer lui-même pour imposer son autorité aux Québécois, y compris les Inuits et les Cris. Or il n’avait pas le pouvoir d’enlever le Canada aux Québécois qui voulaient le garder. Ceux-ci auraient eu le droit pour eux. La légalité de la démarche sécessionniste du gouvernement Parizeau avait été déjà mise en cause : le jugement Lesage de la Cour supérieure du Québec l’avait qualifiée de « manifestement illégale » et constituant « une menace grave aux droits et libertés du demandeur garantis par la Charte canadienne des droits et libertés2 ».

Quant à la reconnaissance internationale, il est plus que douteux que le Québec aurait été reconnu comme un État indépendant contre l’avis du gouvernement canadien. Il n’y a pas de précédent de cet ordre. Les notes de breffages du Président Clinton indiquent ce qu’aurait été la réaction des États : « Since the Canadians have yet to work out their future constitutional arrangements, it is premature to consider the question of recognition of Quebec3 ».

Pour ces raisons, le plan Parizeau aurait presque certainement échoué. Confessions post-référendaires me renforce dans cette conviction. Les témoignages qu’on y trouve vont dans ce sens.

Premièrement, le camp du Oui aurait probablement éclaté. Ni Lucien Bouchard ni Mario Dumont n’entendaient se laisser écarter par Parizeau après le référendum. Or c’était Lucien Bouchard qui était l’homme populaire, le champion du camp du Oui. Si lui et Dumont avaient lâché Parizeau, on peut penser que les conséquences sur l’opinion publique auraient été négatives pour celui-ci et pour son projet de sécession.

Deuxièmement, Parizeau pêchait par optimisme à propos de l’éventuel ralliement de Québécois fédéralistes. La déclaration de fédéralistes notoires qui, selon lui, aurait paru dans les journaux ne parlait pas d’indépendance; elle réclamait simplement un sommet sur les défis auquel le Québec allait faire face. Confessions post-référendaires nous montre un Daniel Johnson, une Lucienne Robillard et un Jean Charest aucunement disposés à se rallier à l’indépendance en cas de faible victoire du Oui.

Finalement, pour que le plan Parizeau fonctionne, il aurait fallu qu’une équipe de négociations canadienne se constitue rapidement, avant qu’une majorité de Québécois ait eu le temps de se retourner contre la sécession. Confessions post-référendaires montre que cela était bien improbable : les ministres fédéraux et les premiers ministres provinciaux interrogés par Mme Hébert écartent la possibilité qu’un partenariat politique et économique aurait pu être négocié. En cela, Parizeau ne se trompait pas. Mais même la négociation rapide d’un accord de séparation aurait été hors de portée.

Seul Preston Manning était prêt à négocier la sécession sur la base d’une mince majorité, mais il aurait imposé des conditions très dures. Le livre indique par ailleurs que les autres politiciens interrogés, tant au fédéral que dans les provinces anglophones, n’auraient pas accepté Manning comme négociateur en chef du Canada. Les premiers ministres Roy Romanow de la Saskatchewan, Mike Harris de l’Ontario et Frank McKenna du Nouveau-Brunswick avaient pour priorité de protéger les intérêts de leur province. Un départ précipité du Québec, même si cela avait été possible n’était pas leur premier choix. Miser sur un retournement de l’opinion québécoise, contre la sécession, leur apparaissait une issue bien préférable. Comme le résume Frank McKenna : « Certains Québécois auraient regretté leur choix. Certains auraient dit : “Qu’est-ce qu’on a fait ? Qu’est-ce que cela signifie vraiment ?” »

C’était aussi l’opinion des ministres et des conseillers proches de Jean Chrétien. Comme le dit Bob Rae : « De la manière dont le référendum était configuré, personne de devrait présumer que le pays était fini ; la question ne menait pas inévitablement à cette conclusion ».

En résumé, dans une démocratie, une sécession ne peut pas se faire de façon unilatérale, sans cadre juridique. Elle doit se faire par la négociation. Entre le soir d’un Oui référendaire et la conclusion d’un accord de séparation dûment négocié dans le cadre du droit, il se passerait de longs mois, tant la scission d’un État moderne serait une tâche énorme et difficile. Pour que l’appui à la sécession résiste aux difficultés inhérentes à de telles négociations, il faut un appui clair au départ. En misant sur la confusion plutôt que sur la clarté et en sortant du cadre du droit, le projet de sécession de Jacques Parizeau ne pouvait qu’échouer. J’en suis encore plus convaincu après avoir lu l’ouvrage de référence qu’est déjà devenu Confessions post-référendaires.

Continue reading “Jacques Parizeau’s house of cards” →

Canada

Acknowledge the elephant in the Red Chamber

Stéphane Dion on what should be done with Canada’s upper chamber

By
Issue 34

To have a useful discussion on Senate reform or improvement, we must face the elephant in our Red Chamber – the place where senators sit. I am amazed by the number of writings on the Senate, including Professor Tom Flanagan’s, that don’t even mention this pachydermic problem. Yet this is the fundamental reason why, almost 150 years after Confederation, our senators are still being appointed rather than elected.

This elephant is the huge imbalance in the number of senators per province. How can we not see this beast? While New Brunswick and Nova Scotia have ten senators each representing them, Alberta and British Columbia have but six each, even though their populations today are five to six times larger.

There is no obvious logic to this imbalance, contrary to the equal number of senators per state in the United States or Australia. The unfair distribution of senators among Canadian provinces is the somewhat incidental result of east-to-west migration and settlement of European immigrants since Confederation. This is why New Brunswick and Nova Scotia have so many more seats in the Senate relative to their population than Alberta and British Columbia.

As I noted in a previous Inroads issue, this unbalanced provincial representation in the Red Chamber is tolerated only because our senators – being unelected – exercise their constitutional powers with the utmost restraint.1 Although it has almost the same powers as the House of Commons, the Senate almost always leaves the last word to the lower house. The Senate proposes amendments – often useful – to bills from the House, but rarely casts a veto.

However, if senators were elected, they would no longer have any reason to leave the last word to their colleagues in the House. Instead of vetoing one bill every few years, they might well do it every few weeks. The risk of parliamentary paralysis is quite obvious, particularly when electoral outcomes produce two houses of different partisan complexions.

With such a powerful Senate, the meagre representation of Alberta and British Columbia would fast become intolerable. Should such an elected Senate make decisions that go against – or are perceived to go against – Alberta’s or British Columbia’s interests, the heretofore quiet and discreet elephant in the Red Chamber would begin trumpeting raucously.

So why have we not yet pushed this elephant out of the Red Chamber? Because, alas, it is easier said than done: in effect, the exit door is too narrow for it. Let’s be candid: we do not agree on what the number of senators per province should be. Opinions differ on the number of Senate seats that should go to Albertans, Ontarians, Quebecers, Newfoundlanders, etc.

Should we, by chance, manage to agree on the number of senators to be allocated to each province, everything else would fall into place. We would adopt a voting system for senators (proportional, first-past-the-post, preferential or alternative). We would give this elected Senate appropriate powers to serve as a useful complement to the House of Commons. We would establish a process for resolving disputes between the Senate and the House, to avoid paralysis between two elected chambers that are both empowered to speak on behalf of the people. Our politicians would negotiate this constitutional change without extending the debate to all kinds of other issues – and a responsible Quebec government, devoted to Canada, could let itself be persuaded to do it. We could, by referendum, submit the reform for approval to Canadians: wouldn’t they be more than happy to give themselves the power to select all their parliamentarians?

But this is nothing short of utopian. Why? Let’s continue to be candid: nobody knows which province would be ready to give a few of its own seats to Alberta and British Columbia. None seems to be the ideal candidate for such sacrifice, particularly in the context of a reform that considerably increases the Senate’s true weight in our political system.

In principle, the four Atlantic provinces, with 30 senators out of 105 and only 7 per cent of Canada’s population, could spare some seats. But with their relative weight in the House of Commons dwindling in favour of the fast-growing provinces farther west – Ontario but also, more specifically, Alberta and British Columbia – they would undoubtedly resist letting go of this overrepresentation.

Quebec – which considers itself a nation, with particular responsibilities in a mostly anglophone North America – will refuse to give up any of its 24 seats and have its relative weight within an elected Senate reduced, with nothing in return. Its government was only persuaded to accept an equal Senate under the Charlottetown Accord after being guaranteed, in perpetuity, a quarter of the seats in the House of Commons. That guarantee was not well received by the other provinces and contributed to the accord’s demise.

With less than a quarter of the seats and almost two fifths of Canada’s population, Ontario is already underrepresented in the Senate. Manitoba and Saskatchewan, with six seats each, and the three territories, with one seat each, have none to give up.

I do not know if that disagreement can some day be resolved. What I do know is that with the current per-province seat distribution, an elected – and therefore powerful – Senate would be unfair for our country’s two westernmost provinces. Under those conditions, an elected Senate would draw us inexorably into a major, and possibly unsolvable, constitutional crisis.

Yet this is what Stephen Harper, the current Prime Minister, proposes to do: elect the Senate without changing the provincial seat distribution. That’s irresponsible. It’s nothing but shortsighted populism.

Tom Flanagan’s proposal isn’t very different from Stephen Harper’s. It suggests that the prime minister’s nomination power should be strongly curtailed and transferred to the provinces. They may choose to elect senators or to set up independent commissions mandated to submit a short list of candidates to the prime minister.

I doubt that the Flanagan proposal could be implemented through a simple act of Parliament without the agreement of at least seven provinces representing half the population of Canada. In its decision regarding the Reference by the Governor in Council concerning the legislative authority of the Parliament of Canada in relation to the Upper House,2 the Supreme Court found that “to make the Senate a wholly or partially elected body would affect a fundamental feature of that body” and that the constitutional powers of Parliament do not allow it to unilaterally change a fundamental feature of the Senate. But we will soon know what the Supreme Court’s verdict is on this issue, now that Stephen Harper has finally made up his mind to seek the Court’s opinion.

What I have no doubt about is that it would be a mistake to give the provinces a legal say in the selection of senators, as Professor Flanagan proposes. Doing that would exacerbate the unfairness of their respective weights in the Senate. At a time when some provinces are underrepresented for no logical reason, nothing must be done that suggests that senators could act as agents of the provincial governments.

As for the often-made proposition, revived by Professor Flanagan, that senatorial selections be submitted to the scrutiny of supposedly independent and apolitical commissions (composed of members of the Order of Canada, for example), I remain sceptical about it. I find the notion elitist – and frankly, not very democratic – and believe that Canadians would perceive it as such. It risks watering down the prime minister’s accountability. He selects senators – he should bear the responsibility for his choices.

So what to do? Abolish the Senate? Abolition faces a constitutional hurdle, well described by Professor Flanagan. But more importantly, I believe there are better things to do than abolishing the Senate. Instead, I suggest that we do all we can to ensure that it fulfills its core responsibility, as bestowed upon it by the Fathers of Confederation: to be a chamber of sober second thought. Made up of members who gain valuable experience – compared to members of the House of Commons who may come and go quickly from election to election – it needs to be a chamber that scrutinizes bills, detects errors, shortcomings and ambiguities, and proposes useful amendments accordingly.

We can improve on current practices. I suggest that members of Parliament – and the prime minister – be required to examine proposed amendments from the Senate with an open mind and justify their response, instead of rejecting such proposals out of hand, and with no explanation, under the excuse that they come from nonelected senators.

I suggest further that the prime minister be legally required to justify his Senate nominations formally. Rather than informing us through discreet Friday evening press releases, let him present them in House speeches and Senate appearances. Let him explain why the new senators can be expected to make excellent legislators and help the Senate represent regions and minorities effectively.

In addition, the Senate’s independence must be better protected. Specifically, Senate committee members and chairs should be selected internally by the Senate with no interference from the prime minister.

Above all, fixing the Red Chamber and restoring its reputation requires hitting the right nails on the head. To avoid expense shenanigans, there needs to be more transparency: regular, statutory, external audits and verifications – for example, to ensure, even ahead of a nomination, that a senator’s principal residence is indeed located in the province he or she represents. Candidates’ background and credentials should be scrutinized. And there need to be more stringent requirements for session and committee attendance.

Tom Flanagan is right in saying that many improvements can be made to the Senate without touching the constitution. But first there must be a general understanding that an elected Senate is out of reach, blocked by an immovable elephant. On that basis, we can make best use of our energies, directing them toward giving ourselves the best possible house of sober second thought.

Continue reading “Acknowledge the elephant in the Red Chamber” →

Canada

The Senate reform bill:
A constitutional danger for Canada

The proposed Senate reform is ill-conceived. It will result in a harmful burdening of our federal decision-making process.

By
Issue 31

 

“I look at the problems in other countries like the United States and Europe, where political gridlock, over deficit crises and debt crises, is leading to a real economic uncertainty and political instability. We’re very fortunate we don’t have that … We have to make sure here that we continue to be able to make decisions and stay focused.”

Who said this? The Conservative House Leader, Peter Van Loan, on December 8, 2011, while trying to justify his government’s record use of time allocation.1

So why does the Conservative government now propose a Senate reform that is sure to create exactly what Mr. Van Loan decried, political gridlock, at the heart of our federal institutions? Why do Prime Minister Stephen Harper and Democratic Reform Minister Tim Uppal promote Bill C-7, “An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits”? Of all the bills currently in discussion in the Parliament of Canada, this could well be the most dangerous for the future of our country. Whatever our partisan orientation, we need to realize the danger and stop this bill.

It is a well-known law in political science that the problems of tomorrow are often the result of the ill-conceived institutional reforms of today. That is exactly what is at stake with C-7.

If the bill becomes the law of the land, the result will be either a new constitutional dispute or a harmful burdening of our federal decision-making process – or a combination of both. These scenarios are particularly unwelcome when we should be combining our efforts to face the economic, social and environmental challenges of our time.

Technically, the bill would grant the prime minister the power to limit a senator’s mandate to nine years and appoint senators through a patchwork of voluntary provincial senatorial elections. The problem with this plan is that it would create a system with two elected chambers duplicating each other, creating delays and roadblocks in Parliament. It would bring to Canada the same paralysis we see in the United States or Mexico.

Canada is a decentralized federation whose 14 member governments (including the territories) have huge powers and responsibilities. In such a decentralized federation, it is important that federal institutions, common to all citizens, be able to work well and quickly when drafting legislation or making decisions. Federal institutions should not be constantly hampered by opposition between two elected chambers.

A recipe for gridlock

We need to keep in mind that the nominal constitutional powers of our Senate are the same as those of the House of Commons, except for two restrictions:

  • First, financial legislation must be introduced in the House; the Senate may amend financial legislation but not increase taxation.
  • Second, the Senate has only a suspensive veto of 180 days on constitutional amendments.

Our Senate almost always gives the last word to the House; it reviews the House’s legislative work and can suggest amendments, but almost never vetoes House decisions. As an unelected body, the Senate leaves the final word to the only chamber that is elected by the Canadian people.

But if senators are elected, on the basis of political platforms and commitments to voters, they will be entitled – and, it may be argued, will have the duty – to exercise their nominal constitutional powers to their full extent. No longer will they have any reason to let their House colleagues have the final word. In some ways, C-7 would make them stronger than MPs: senators would represent larger constituencies than MPs (provinces rather than ridings); they would be elected for longer terms (nine years instead of four); and they would have a smaller number of peers, which is in itself a source of prestige and clout (105 senators compared to 308 MPs, or 338 after Stephen Harper’s House reform).

An elected Senate will not limit itself to complementing the House of Commons, but will rather duplicate it and, very likely, oppose it on numerous occasions. We need to take full measure of the impacts such a departure from current practice would have.

A 2009 study shows that between 1994 and 2008 the Senate amended 9 per cent of the bills passed by the House and explicitly rejected only two of 465.2 If we had an elected Senate, how many bills would it reject? A quarter? Half? We need only look at the U.S. Congress to figure out how frequent and lengthy the blockages would become. In fact, the situation could be even worse here than in the United States, because Canada does not have a constitutional mechanism to resolve disagreements between two elected chambers claiming the same legitimacy to speak for the people.

Queen’s University Professor Ron Watts looked at 25 democratic federations.3 In each and every one, Professor Watts found the existence of deadlock-breaking mechanisms. These may consist of mediation by conference committees (United States), giving the second chamber a suspensive veto only (India), limiting the absolute veto of the second chamber to matters under state jurisdiction (Germany) or a double dissolution followed by a joint sitting (Australia). Every federation with two elected chambers has found it indispensable to establish a dispute-settlement mechanism. What Mr. Harper wants to impose on Canada is an irresponsible and dangerous precedent.

In addition to these deadlock-breaking mechanisms, every federation with a parliamentary system such as Canada’s made sure that the second chamber would be less powerful than its equivalent of our House of Commons. In only one of these federations, Australia, is the second chamber directly elected, but deadlocks there are broken through joint sittings where senators are vastly outnumbered by MPs.4 It should be noted that Australia is a more homogeneous and centralized federation than Canada. The largest Australian state is only 12 times more populous than the smallest, compared with 70 times in Canada. The three largest states have half the seats and cannot be outvoted by the smallest ones.5

The second chamber’s constitutional powers are more limited in parliamentary systems because the first chamber, the one elected nationally on the principle of “rep by pop,” is the “chamber of confidence” – the chamber to which the government is responsible and which may cause the government to fall. Presidential systems (such as the United States) are different in that executive authority stems from the direct election of the president. The president is not responsible to the House or Senate, which is why the two chambers may have roughly equal powers and equal weight in the dispute-settlement mechanism.

A blow to Alberta and British Columbia

Wrong for the whole of Canada, this bill is especially unfair and ill-conceived for two of our provinces, Alberta and British Columbia, which are underrepresented in the Senate. The distribution of seats in our Senate does not reflect the demography of today; it results from the history of a country that was built from east to west.

Let us look at the numbers. Alberta has 9.1 per cent of the total number of members of Parliament, but only 5.7 per cent of the senators (six out of 105). The gap is even larger for British Columbia, with 11.7 per cent of the members in the House of Commons and only 5.7 per cent of Senate members. By contrast, New Brunswick counts ten senators for a population 4.8 times smaller than Alberta’s and 6.1 times smaller than British Columbia’s. This unbalanced distribution of Senate seats, a historical artefact, is a problem for the two western provinces and an anomaly for our federation. The government’s reform would make the situation much worse.

In our existing unelected Senate, this deficit of representation is mitigated by the fact that the senators play their constitutional role with moderation, letting the elected House of Commons have the final word most of the time. In a powerful and elected Senate, the underrepresentation of British Columbia and Alberta would take on its full scope and significance. Of course, elected senators from the other provinces would not be hostile to the interests of Alberta and British Columbia, their duty being to address the interests of the whole country. But these senators would be more familiar with – and closer to – the interests of the voters of the province where they were elected.

So why do Stephen Harper and Tim Uppal, two Albertans, want to hurt their province with C-7? The bill will render unsustainable Alberta’s and British Columbia’s underrepresentation. Both British Columbia Premier Christy Clark and former Alberta Premier Don Getty rightly point out that this version of Senate reform would be bad for their respective provinces. Most constitutional experts from these two provinces have said the same.

Running afoul of the constitution

If the bill as it stands would impose on Canada a ritual gridlock between two elected chambers having the same powers and create a powerful Senate where Alberta and British Columbia would be grossly underrepresented, why not simply improve C-7? Why not add a modification of the Senate’s powers, a provision for a dispute-settlement mechanism and a reallocation of Senate seats that would be more respectful of the demographic weight of Alberta and British Columbia? The answer is very simple: it would be unconstitutional to do so through an act of Parliament alone. In addition to Parliament’s agreement, the support of the provinces would be needed.

In fact, Bill C-7 as it stands now is already unconstitutional. That is the view of the overwhelming majority of constitutional experts and of many provincial governments. Quebec Premier Jean Charest has announced that if this unilateral Senate reform goes forward, his government will challenge its constitutionality in the courts. It is very likely that he would win his case.

The changes C-7 proposes cannot be implemented by Parliament alone, unilaterally. The Supreme Court of Canada said in 1980 that Parliament cannot alter the “fundamental feature or essential characteristics of the Senate.” According to the Court, “to make the Senate a wholly or partially elected body would affect a fundamental feature of that body.” Section 42.1(b) of the Constitution Act, 1982, explicitly mentions “the powers of the Senate and the method of selecting senators” as matters that may be amended only with the support of Parliament and the legislative assemblies of seven provinces representing at least 50 per cent of the population of the provinces.

The government claims that C-7 does not affect the selection of senators, even though the title of the bill is “An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits.” The schedule to Bill C-7 refers to a new “framework for the selection of senators.” How can it be possible to change the “framework” without changing the method of selection? It is even worse in French, to the point of being ridiculous: Bill C-7 refers to “le cadre du processus de sélection des sénateurs.” Clearly the bill’s drafters were very creative in avoiding the use of the word method or méthode.

The government argues that the election process will remain optional (the provinces will be free to hold these elections or not), that the prime minister will not be compelled to choose the elected candidate and may decide to choose somebody else and that, in the end, nothing will change since senators will still be summoned by the governor general at the recommendation of the prime minister.

This line of defence is disingenuous. It cannot seriously be claimed that the method of selecting senators encompasses only the legal powers of the governor general. Professor John Whyte, Chair of the College of Law of the University of Saskatchewan, points out that the method of selecting persons for appointment cannot be reduced to the means of appointment only; it certainly includes the fact that senators are not elected and likely also includes the duration of an appointment.6

The least that can be said is that the courts are unlikely to accept the government’s narrow interpretation of the constitution. Simon Fraser University professor Andrew Heard, expressing an opinion supported by the overwhelming majority of constitutional experts, writes, “The courts have proven many times that they intend to protect the substance of the institutions and principles that are given life by the Constitution.”7 Even Justice Canada’s General Counsel, Warren J. Newman, said some years ago to the Special Senate Committee on Senate Reform that the basic questions to ask in assessing the constitutionality of a Senate reform bill are the following: “What is, in pith and substance, the legislation about? What is its effect? Is it an incidental effect and one that we can live with or one that is so fundamental that there is a real problem to it?”8

Clearly the pith and substance of C-7 is to achieve an elected Senate. It transforms an appointed chamber into an elected one. The Court is very unlikely to conclude that the new voting process will not actually change the government’s appointing practices. Parliament will have prompted, by law, the provinces and territories to hold these senatorial elections which, each time, will cost candidates and taxpayers huge efforts and millions of dollars. The purpose of C-7 is precisely to apply political pressure on the prime minister to recommend to the governor general the winners of these provincially held senatorial elections.

The government tried to make C-7 less vulnerable to a Court challenge by stipulating that the provinces and territories, not Ottawa, would hold these senatorial elections. The Supreme Court is unlikely to be impressed by this device. It is a well-known constitutional principle that governments must not attempt to accomplish indirectly what they are constitutionally forbidden to do directly. This is exactly what the government is trying to do with C-7.

The character of our Senate

So it is clear that C-7 violates the letter and the intent, the pith and substance of the constitution. It also flies in the face of what the Fathers of Confederation intended to achieve. Having considered an elected Senate, they ultimately decided to reject it. Likewise, a nine-year term was proposed but rejected as not lengthy enough.

What the Fathers of Confederation decided was that the Senate should be “a chamber of sober second thought” (une Chambre de second examen objectif). As Janet Ajzenstat described it, the Fathers wanted the Senate to have “the power of the check.”9 Its role would be to check the power of the popularly elected House. In the words of John A. Macdonald,

It must be an independent house having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch and preventing any hasty or ill-considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people.10

The Senate is the place:
  • where “obstructionism has been the exception rather than the rule”;11
  • that amends House bills, at a significant rate of 8 to 10 per cent,12 but almost never defeats them;
  • that makes suggestions often incorporated in House bills before they come to the Senate;
  • that produces a lot of well-considered policy reports;13
  • that is a partisan body, but clearly less so than the House, with more collegiality and more of a tradition of independent voting, since it is not the chamber of confidence and since senators do not need to seek reappointment from the prime minister;14
  • where seniority and experience are highly valued and where leadership positions (speaker, caucus leaders, whips, chairs of committees) are disproportionately held by the most senior senators with more than eight years of office;15
  • where long mandates conform to the “checking role” of the Senate, especially in the context of an exceptionally high rate of turnover among the members of the lower chamber;16
  • where senators enjoy more time than their colleagues in the House to focus on their role as legislators since they do not have the heavy burden of constituency work;
  • where an exceptionally wide range of political, professional, business, academic and artistic experience can be found (the 870 senators appointed between 1867 and 2008 include three former prime ministers, 22 former premiers, 305 MPs and 416 from municipal offices);17
  • where significantly more women and minorities are sitting than in the House of Commons – as of 2008, women made up 34 per cent of the Senate and 21 per cent of the House, while Aboriginals made up 7.7 per cent of the Senate and 1.3 per cent of the House.18

In 2009, Hugh Segal, a Conservative senator appointed by Liberal Prime Minister Paul Martin and a strong supporter of an elected Senate, wrote,

My own experience both with the Senate and senators over three decades, and my explicit experience since being appointed in 2005 … leads me to agree wholeheartedly with those who extol the sense of honour, duty, diligence and public service that inspires the vast majority of those who have served or do serve in our Chamber. Conservative ministers like Peter Van Loan, who have attacked the people and the institution, reveal more about their mean-spirited myopia and institutional inexperience.19

In sum, what we have today is what the Fathers of Confederation had in mind: a complementary chamber of scrutiny and amendment. An elected Senate would signify a radical change in our parliamentary system because it would entirely refashion the relationship between the House of Commons and the Senate.

Considerations for Senate reform

Confederation was a long time ago, and it is legitimate today to propose reforms that would incorporate Senate elections or term limits for senators. But it cannot and must not be done through a process that excludes the provinces. All of Canada’s constitutional partners must be at the table in order to respect our constitution and the federative character of our country.

I myself am sympathetic to the view that in a democracy, all parliamentarians – as legislators who make, refine or reject the laws – should be elected. We Liberals supported the 1992 Charlottetown Accord, which included an elected Senate in a comprehensive constitutional reform that provided a limitation of the Senate’s nominal powers. But I do not want Canada to be subjected to the risk of a gridlock à la U.S. Congress, where the two elected chambers routinely paralyze each other. I do not want the two western provinces of my country to be treated unfairly.

We need to consider how an elected Senate would change our federation. Our Senate was conceived as the legislative upper house of a bicameral Parliament, not as a provincially appointed body along the lines of the German Bundesrat.20 In our current Parliament, regional interests are mostly accommodated behind closed doors, within party caucuses, according to a parliamentary system based on ministerial solidarity. With an elected Senate, these regional interests would be more openly expressed, although they would not necessarily be more effectively translated into adopted policies.21

Some support an elected Senate as a means to diminish the influence of the premiers, strengthen federal institutions and policies and recentralize one of the most decentralized federations in the world.22 Others, like Senator Bert Brown, prefer to think that an elected Senate would resolutely be a provincialist body, where senators would stick to the views of the provincial voters who elected them.23 Nobody knows for sure what an elected Senate would do to our federation. But if we look abroad (United States, Australia), we see that an elected Senate essentially duplicates the partisan cleavages and ideological polarization of the lower chamber.

The electoral regime set up by C-7 would have senators appointed through optional provincial or territorial elections. Funding for these Senate elections would come from the provinces and territories, and even though they would be federal elections, the federal parties would be excluded from the electoral process. Indeed, candidates would run for the Senate under provincial party affiliations, not federal ones, and anyone seeking to run for a federal party would be labeled an “independent.”

As provincial or territorial rules would govern these Senate elections, this raises the prospect of a Parliament with members elected under very different terms – some with corporate money, some with money from outside the province, some with unlimited budgets and others not.

A number of provinces have objected to the idea of holding these Senate elections in conjunction with provincial elections because one would detract from the other. Indeed, the issues would presumably be different, not least because the responsibilities of the officials being elected are different. Some might argue that it would be more sensible to hold Senate elections at the same time as a federal general election. But this could allow a party to circumvent federal restrictions on spending and advertising by funnelling messages through senatorial candidates (arguably a new and updated version of “in-and-out”).

Bill C-7 states specifically that the chief electoral officer and other electoral officials of the province or territory would be the election officials for purposes of the Senate election. In other words, if a Senate election was held at the same time as a general federal election, there would be two separate sets of officials running the two elections. By law, there could be no economies of scale. Taxpayers would be paying double. Expensive and confusing!

So it comes as no surprise that a number of provincial governments have said they have no intention of allocating funds to these senatorial elections. We would have, for years, a hybrid body, partly appointed, partly elected. This whole scheme makes no sense at all.

Abandon the bill, or refer it to the Supreme Court

I know that some people, while agreeing with most of what I have said, are still supportive of Bill C-7. They argue that we need to start somewhere. After no fewer than 21 proposals to modify the Senate since Confederation, they say, “Enough with this frustration. Let’s just elect the Senate, or some senators, and we will figure out what to do after.” Professor Roger Gibbins eloquently expressed this view when he testified some years ago before the Standing Senate Committee on Legal and Constitutional Affairs: “We need a trigger … That is why I have argued for this kind of creative destruction, or whatever it is, a way of destabilizing the status quo to the point where we are prepared or forced to address more fundamental structural questions.” He continued: “It’s an argument I’ve always been hesitant to go public with. But the only way you end up with more comprehensive reform is if you destabilize the status quo to the point where Canadians say, ‘This is a mess, and we’ve got to sort this out.’”

Well, let’s call a spade a spade. This “creative destruction,” this mess that Professor Gibbins wants to “trigger” has another name: a new round of constitutional meganegotiations. This is what would be needed to correct the damage C-7 would inflict on Alberta, British Columbia and the whole of Canada. Prime Minister Harper knows that very well. He admitted to the Special Senate Committee on Senate Reform on September 7, 2006,

I can just say that my frank hope is that the process would force the provinces and others to, at some point in the future, seriously address other questions of Senate reform. There are questions such as the distribution of seats and the powers that we are all clear must be addressed through a general amending formula, constitutional amendment.

I do not remember the Prime Minister, during the last election campaign, promising Canadians a new round of constitutional meganegotiations. I say “mega” because there is no way these negotiations would focus only on the Senate issue. Since the Quebec National Assembly never agreed to the Constitution Act, 1982, the Quebec government would insist on resolving this issue before even considering Senate reform. And Aboriginal leaders would want to discuss their own issues, and so on and so forth.

The Prime Minister must come clean with Canadians. Does he want to reopen the constitution? Yes or no? If yes, he must say so, and explain to Canadians why he kept that hidden during the last election campaign. He must tell us why he thinks the governments of our federation should immerse themselves in new constitutional meganegotiations instead of putting all their efforts into economic recovery and job creation. Good luck to him. I don’t think Canadians will be impressed.

There is only one solution that makes sense for Canada: that the government abandon this bill, or at least refer it to the Supreme Court to verify its constitutionality as it did for the issue of a national securities regulator. The Supreme Court of Canada ruled that creating a national securities regulator was an unconstitutional invasion of the provinces’ power over property and civil rights. I am convinced that, similarly, the Court would declare C-7 unconstitutional. If the government is unwilling to do the right thing, it should at least allow the Supreme Court to do so.

Continue reading “The Senate reform bill:
A constitutional danger for Canada” →