Wednesday, 01 October 2008

Which sounds better -- electing senators or paying a carbon tax?

Who would have predicted – who could have predicted – that Canada would one day fight a national election on reforming the Senate?

Yet so we are. Notwithstanding the huge concern of all parties about global financial problems, the 2008 election has also been cast as a contest between Stephane pleading for a carbon tax to save the planet, and Stephen advocating an elected Senate for the good of Canada.

It began this summer, when Dion launched his problematic “Green Shift,” and household mailers from Tory MPs focused on Senate reform.

From Harper’s perspective, there could be no more promising issue.

Senate reform is not in any strict ideological sense a “conservative” issue, but it’s popular and the Conservatives own it. For twenty years, polls have shown it to be supported by about three-quarters of Canadians in all regions (even Quebec) and of all political leanings (even NDP).

It is also useful. If f the Senate is reformed properly, and the Upper House becomes truly independent, it will provide the first meaningful check on the power of a majority Prime Minister since Mackenzie King centralized federal power in the 1940s – arguably since the country began in 1867.

At this point we’ll award high marks for anyone who asks, “But why would Harper curtail his own power?”

The answer is, he won’t. He will curtail the power of his successors.

Even if he gets a majority in the Commons, it will take six more years of Senate retirements before elected members outnumber appointed ones. It will be nine years before two-thirds are elected. If Harper remains Prime Minister during that time, he will have control of the reform process from beginning to end, but will probably never face an independent Upper House himself.

Social and fiscal conservatives have learned that Harper is still leery of fighting elections on “right-wing” causes. Canada’s urban majority is not conservative, it is a herd easily frightened – by gun owners, by the “A” word, by car exhaust, by free speech, and by Quebec separatism. Harper is determined not to give Dion the slightest opportunity to start a Chretien-style political stampede back to the Liberals.

But there is nothing faintly scary about electing Canada’s Senate. In fact, it appeals to almost everyone.

Harper and the premiers are moving towards provincial election of senators

The crucial question about Senate elections is: will they be federal or provincial?

Most people assume they’ll be federal because senators are federal officials. But that is to miss the key point. Senators are supposed to be provincial representatives in a federal House. The Constitution Act 1867 says so explicitly in Section 22. In fact the original Senate was to consist of provincial legislative councillors reflecting as closely as possible provincial party strength at the time.

Prime Minister Stephen Harper and Saskatchewan Premier Brad WallSenate reformer Vincent Pouliot of Quebec City has pointed out that the constitution in effect vests in senators power of attorney over provincial interests in Parliament. The fact that senators have never recognized nor exercised this function should not blind us to the fact that it’s what the Constitution expects of them.

And who has provincial interests more at heart – provincial parties or federal?

Provincial political affiliation would put senators beyond the control of the federal party leaders in the House of Commons who have run the Senate since 1867. It would create a powerful new autonomous House of the Provinces that can defend regional interests and challenge majority governments.

The remarkable thing to us is that Harper appears to have accepted this, despite misgivings in his own caucus and Cabinet. He wants the Senate to be elected provincially. So says Alberta Sen. Bert Brown, so far the only elected member of the Red Chamber, who has been consulting far and wide on Harper’s behalf with provincial ministers and Premiers since he was appointed in June, 2007.

(Sen. Brown came first in an Alberta-wide ballot in 2004 as a provincial Progressive Conservative Senate nominee.)Now that the Prime Minister has proven that he is serious about reform, Brown says provinces are starting to move.

In Saskatchewan, Premier Brad Wall has already said his province will hold its first Senate election soon.

The B.C. Liberal government – hitherto skeptical – is now examining how to reactivate a Senate Election Act passed long ago by the Social Credit but never used; the Act expired under a built-in sunset clause.

Manitoba’s NDP government has already written Senate election legislation and is scheduling province-wide public hearings on it.

The Premiers of New Brunswick (Liberal) and Nova Scotia (Conservative) both favour electing senators provincially, but have not moved forward.

The Liberal Premier of Ontario, now that he is getting along better with Stephen Harper, has shifted from openly negative about Senate elections to quietly open-minded, though not committed.

In fact the only two provincial governments now explicitly opposed are those of Quebec (Liberal) and Newfoundland (Conservative). Quebec still claims that elected senators are an unconstitutional encroachment on provincial rights, and has threatened to go to court to prove it. The Newfoundland government shares the federal Liberal view that Senate reform must be part of a comprehensive constitutional revision.

Sen. Brown expects that if the Conservatives win another victory, most provinces will move forward. There are already 15 unfilled Senate vacancies due to deaths and retirements, and if the next Parliament lasts four years there will be at least 43 (out of 105 seats).

David Elton’s answer to the Fathers of Confederation

Of the 14 days Canada’s founders spent in Quebec City in 1864 designing Confederation, they spent six wrestling over the powers and composition of the Senate.

How, they asked, can a British Parliament be superimposed on a federation of provinces? For that is what they insisted Canada must be – both British and federal.

Britain is not a federation, it’s a centralized unitary state with only one level of legislative power, and no equivalent to provinces. Its Upper House – the hereditary House of Lords – existed to defend the landed aristocracy from the dangers of “Commons mobocracy.”

Canada had no aristocracy to defend, but our founders did want a second House to defend the provinces from “Commons mobocracy”: Quebec from Canada’s English majority, and the Maritime provinces from the majorities of Ontario and Quebec.

Hence, each of these three original Senate divisions was given equal representation, as was the West later, and the Senate received powers equal to those of the House of Commons (Section 18). Just as the House of Commons may veto (forbid) anything a government (a Cabinet) wishes to do, so may the Senate.

But this presented a conundrum. Obviously, the Senate could defend the provinces only if it wielded real power. On the other hand, how could the Commons be held accountable to Canada’s voters if its leaders could not control the Senate? If the government was blocked in the Senate on some important matter of confidence, British convention demanded there be an election.

The eventual compromise was, in our view, not very good. Senators would be appointed for life (now until age 75), upon recommendation of the Prime Minister. The result ever since has been that senators have seldom used the powers the founders gave them, and never for the main reason the powers were instituted: to defend their provinces from the House of Commons.

(An astute reader would wonder why the premiers of the original provinces allowed Ottawa to subvert their Senate. The short answer is that after 1867, led by Ontario and supported by Britain, they established instead a bright constitutional line between provincial and federal fields of jurisdictions, and then lost interest in the Senate and in federal affairs generally. By the time British protection vanished after the Second World War, allowing Ottawa to invade provincial fields, most premiers had come to see themselves as the provinces’ main defenders, even though they lacked the constitutional power to do it, and saw the Senate as a joke. Most still do.)

From the outset the Senate has been an echo chamber of the Commons, not the House of the Federation so desired by the founders.

Now, flashing forward 141 years, the same question confronts the Harper government as it embarks on the first fundamental reform of the Senate since Confederation.

If the Senate is independently elected by provincial parties, and its members owe no political accountability to national parties, what prevents them from becoming irresponsibly obstructionist? Electoral politics attracts grandstanders. What will prevent strong-minded provincial senators from holding a national government to ransom? Where are the new checks and balances?

Sen. Brown consulted with friends and came back with an answer. He calls it the “Elton Override,” because noted political scientist David Elton of Lethbridge, Alberta suggested it.

It borrows from the 1982 constitutional amending formula, and would limit the powers of the Upper House as follows.

In future, if an elected Senate majority disapproves of a House of Commons Bill, it will return that Bill to the Lower House.

Unless the House of Commons chooses to withdraw the Bill, it may by a simple majority vote send the Bill (amended or not) back to the Senate.

At this point, under the Elton Override, the Senate could veto the Bill – but only if a majority of senators from at least seven provinces containing at least 50% of Canada’s population choose to do so. Anything short of that allows the Bill to go to the Governor General for enactment.

Sen. Brown says that under this modification, the Senate would retain its present power (often used) to review, amend or delay legislation. It would lose only a power it has almost never used, the right to veto legislation by simple majority vote. But it could still veto a Bill if most of the senators representing most of Canada’s provinces (including either Ontario or Quebec, but not necessarily both) don’t accept it.

Unlike electing senators, the Elton Override – or any other modification of senatorial power – requires a formal constitutional amendment. However, Harper seems to be confident that reform can proceed without it, and that an amendment will be forthcoming when needed.

Help wanted – 43 positions – good pay, great benefits

The odd thing about Senate elections (or “consultations” as Ottawa now calls them) is that they ordinarily occur before a vacancy opens up, not after. Senators usually serve until the mandatory retirement age of 75, so most vacancies (between four and eight per year) are predictable.

The following is a list of recent Senate retirees who have not yet been replaced, along with 28 more who will leave before the end of 2012. If Harper wins a mandate and provinces pass enabling legislation like Alberta’s, all these positions, at least one in each province, will be up for election.

(The nominating PM is in brackets. Interesting that there are still nine Trudeau nominees in today’s Senate, and one Clark nominee. The longest-serving senator is Willie Adams of Nunavut, appointed for the NWT in 1977. The senator with longest yet to serve is Harper’s only unelected appointee, Michael Fortier of Quebec, who need not retire until 2037.)

British Columbia – four seats (of six)

Jack Austin (Trudeau), retired March 2007
Pat Carney (Mulroney), retired January 2008
Ross Fitzpatrick (Chretien), retired February 2008
Gerry St. Germain (Mulroney), will retire November 2012

Alberta – one seat (of six)

Tommy Banks (Chretien), will retire December 2011
(The six-year elected mandate of Alberta’s remaining three Senate nominees will expire in November, 2010. Senator Bert Brown, who was appointed last year, will reach his mandatory retirement age in 2013, about the same time that his elective mandate will expire.)

Saskatchewan – two seats (of six)

Len Gustafson (Mulroney), will retire November 2008
Robert Peterson (Martin), will retire October 2012

Manitoba – one seat (of six)

Mira Spivak (Mulroney), will retire July 2009


Ontario – 10 seats (of 24)

James Kelleher (Mulroney), retired October 2005
Lucie Pearson (Chretien), retired November 2005
Norman Atkins (Mulroney), will retire June 2009
John Eyton (Mulroney), will retire July 2009
Lorna Milne (Chretien), will retire December 2009
Jerry Grafstein (Trudeau), will retire January 2010
Wilbert Keon (Mulroney), will retire May 2010
Peter Stollery (Trudeau), will retire November 2010
Lowell Murray (Clark), will retire September 2011
Michael Pitfield (Trudeau), will retire June 2012

Quebec – nine seats (of 24)

Marisa Ferretti Barth (Chretien), retired April 2006
Madeleine Plamondon (Chretien), retired September 2006
Aurelien Gill (Chretien), retired August 2008
Michel Biron (Chretien), will retire March 2009
Yoine Goldstein (Martin), will retire May 2009
Lise Bacon (Chretien), will retire August 2009
Jean Lapointe (Chretien), will retire December 2010
Lucie Pepin (Chretien), will retire September 2011
David Angus (Mulroney), will retire August 2012

New Brunswick – five seats (of 10)

Viloa Leger (Chretien), retired June 2005
Marilyn Trenholme Counsell (Chretien), will retire October 2008
Eymard Corbin (Turner), will retire August 2009
Rose-Marie Losier-Cool (Chretien), will retire June 2012
John Bryden (Chretien), will retire August 2012

Nova Scotia – four seats (of 10)

John Buchanan (Mulroney), retired April 2006
Michael Forrestall (Mulroney) died June 2006
Michael Kirby (Trudeau), resigned October 2006
Gerard Phalen (Chretien), will retire March 2009

Prince Edward Island – one seat (of four)

Eileen Rossiter (Mulroney), retired July 2004

Newfoundland & Labrador – four seats (of six)

William Doody (Clark), died December 2005
Joan Cook (Chretien), will retire October 2009
William Rompkey (Chretien), will retire May 2011
Ethel Cochrane (Mulroney), will retire September 2012

Northwest Territories – none (of one)

Yukon Territory – one seat (of one)

Ione Christensen (Chretien), retired December 2006

Nunavut Territory – one seat (of one)

Willie Adams (Trudeau), will retire June 2009

Stand up for a provincially-elected Senate

It is now possible that there will be Senate elections in every province during the term of the next Parliament. If that happens, the change will be permanent. No federal government will dare thereafter to revert to the old system of partisan appointment.

It’s vital, therefore, that Harper be given a strong mandate to proceed, and that he pushes the provinces to hold their own Senate elections.

It’s equally important for all of us as individuals to encourage our Premiers to move forward.

If continued provincial stalling and disinterest causes Harper to revert to his original proposal of last year – federal party elections – most of the potential of Senate reform will be squandered. The Upper House will remain a mainly decorative extension of the House of Commons, not the House of the Federation it was intended to be and that Canada has always needed.

We suggest that all interested Citizens Centre supporters mail their views to Prime Minister Stephen Harper, to their provincial Premier, and to their local newspapers.

In the meantime, we are mailing this newsletter, along with previous ones, to 200 key media commentators, academics and politicians across the country.

A free speech rebellion erupts in Russell, Ontario

Howard GalganovFunny, isn’t it, that the freedom to speak one’s mind has been a fundamental right in the most peaceful and prosperous nations of the world, including ours. Free speech is a major reason that they are peaceful and prosperous.

Unfortunately, this freedom is ever more threatened and restricted by governments, telling us what we may say and how we must say it.

There have been several well-publicized government attacks on free speech lately. One that has not yet received the national attention it deserves is the campaign of Howard Galganov in eastern Ontario.

In June, after six months of acrimonious public debate, the council of the Township of Russell voted 3-2 that all new commercial signs must be written in both English and French.

Galganov, an exile from Quebec who runs an ad agency and a horse farm in nearby Williamstown, Ont., is not taking this lying down. He has rented an office in Russell, hired a constitutional lawyer for a Charter challenge, and is running as an independent candidate for Parliament.

In our view, what’s happening in Russell stands as an disturbing example of what’s gone wrong in Canada.

The township lies east of Ottawa in the large wedge of land between Quebec to the north and the St. Lawrence to the south. Its population of 12,000 is almost exactly half French and half English. Relations between the two have generally been peaceful and friendly over many years, and for obvious practical reasons most of Russell’s businesses had bilingual signage already.

So why impose a bylaw making it compulsory for everyone?

Don’t look for a coherent explanation from Russell Mayor Ken Hill, who cast the deciding vote. He offers only the standard Canadian list of poor excuses for pushing people around.

He has strenuously denied he is pandering to a pushy faction within the local francophone community. Rather he has argued that bilingual signs are “good for business,” that several other Ontario communities have done it, that it applies only to new signage, that it doesn’t require translation of the name of a business, and that it “sets a good example.”

None of which answers Galganov’s basic objection, and that of the bilingual Russell Chamber of Commerce. What entitles the town council to dictate commercial language?

The legalities of enforced bilingualism

Galganov has filed a civil action against the Township claiming that its bylaw infringes his Section 2 Charter right to freedom of expression. The denial of this right was why, after years of struggle – suffering accusations of racism and even death threats, he left Quebec.

On the face of it he should win. Nothing in the Constitution or the laws of Ontario allows a municipality to enforce bilingualism on businesses.

So if our Charter right to free speech means anything, it should prevent Mayor Hill and his two council allies from telling Galganov and the 50 businesses of Russell how to advertise their services.

As the Chamber sees it, the council has no more right to order bilingual signs in front of businesses than it has to order bilingual welcome mats in front of homes.

The politics of enforced bilingualism

However, language law in Canada is inseparable from language politics.

Quebec has managed to so narrowly interpret the constitutional rights of anglophones that hundreds of thousands have left the province – including Howard Galganov. That exodus, especially of educated young anglophones, continues steadily.

Ontario, which is only 4% francophone, has enacted government services and education entitlements which are encouraging French language activism all over the province, and are leading to preferential health and education treatment of franco-Ontarians in small communities where such things are easily noted and much resented.

Even if Galganov wins in court, it would be a small matter for Queen’s Park to pass a new law authorizing municipalities to do what Russell and several nearby towns have done, obliterating Galganov’s legal victory.

Galganov knows this. He admits it. That’s why he’s running for Parliament.

Ultimately, he says, the language issue is political, and ultimately it is federal. The ultimate excuse for bad language policy is always “national unity.” So he is counter-attacking on both fronts, legal and political.

The injustice of enforced bilingualism

Galganov and his wife Anne left Quebec when it was clear the free speech battle there had been lost. Now it has followed them to Ontario.

The issue is not bilingualism, he insists, it is enforced bilingualism. He believes governments should leave people alone, whether they conduct business in English, French or Swahili.

Quebec demands that commercial signs be in French. Other languages are tolerated, but only in small type, and only because Galganov and a few other activists fought for years to allow it. But even in Quebec’s English communities, French is mandatory and predominant or the sign comes down.

Until now Ontario has always allowed French but never enforced it, says Galganov, and that’s how it should stay.

The issue in Russell, Ontario is not French versus English, but rights versus coercion.

Giving a pushy minority an unreasonable sign law, says Galganov, simply produces other unreasonable demands, along with a pious crop of rationalizations and accommodating politicians.

The myths of official bilingualism

Since Trudeau’s Official Languages Act went into force in 1969, Canada’s language policy has been built upon five fictions.

The first is that because there are two main languages in Canada, Canadians are bilingual. But the vast majority of Canadians do not speak two languages, they speak one. Only 17.4% claim to speak both, according to the 2006 census, down from 17.65% in 2001.

“Bilingualism” as such exists mainly in urban Quebec, where (ironically) the provincial government considers it a standing threat to French. Elsewhere it is rare.

The second official myth is that state-mandated bilingualism is cheap. In fact Ottawa has never published the total cost of official languages to the Canadian economy. According to the most complete estimate we’ve come across, the total annual cost is almost $20 billion a year.

The third fiction is that governments can create a bilingual culture. No, they can’t, any more than King Canute could stop the tide. In this as in so much else, Trudeau was wrong.

Francophones comprised 30% of Canada’s population a century ago. By 1971, only 25.7% of Canadians spoke French at home. Now it is down to 21.4%, and still falling.

Myth four is the idea that official bilingualism keeps Quebec in Canada. After one episode with the War Measures Act and two independence referendums (so far), why would we think so? Quebec is no more enthused about Confederation today than it was in 1969, or 1939, or 1867. By all indications it is more nationalist with each passing generation.

The fifth fiction is that to be anti-enforced bilingualism outside Quebec, or to be anti-enforced unilingualism within Quebec, is to be racist. Reasoned debate on this subject is usually shouted down, especially in Quebec.

Galganov’s election campaign

Last January Howard Galganov announced that he will stand for the federal seat of Stormont – Dundas – South Glengarry, now represented by Conservative Guy Lauzon.

galganov-win-back-canada.jpgGalganov is running as an “independent conservative,” so he can speak freely on the language issue and many others. He mass-mailed 38,000 16-page campaign booklets two weeks ago, and says he is getting huge positive reaction from voters who are fed up with unjust government.

Unlike with Senate reform, Harper has turned 180 degrees on official languages since he showed up as Reform Party MP for Calgary in 1993. By the time of the Conservative Party merger in 2004 he had concluded that any viable coalition must include Quebec, because it fills 24% of Commons seats. His enormous efforts since then to gain francophone support are starting to pay off.

All well and good, says “independent conservative” Galganov, but someone in Parliament should represent the large and growing number of anglophones who have come to support “the friendly departure of Quebec from Confederation.” If the price of Quebec remaining is to destroy traditional rights, he thinks, it would be better the two peacefully went their separate ways, like Belgium is doing and Czechoslovakia has done.

At the Citizens Centre we believe that this is a necessary and legitimate discussion, and while we do not endorse candidates, we consider official bilingualism as practiced by Ottawa a gross abuse of the federal spending power in provincial jurisdiction over language and education.

Howard Galganov can be contacted through his Web site, www.galganov.com, or by writing him at PO Box 17, Williamstown, Ontario, K0C 2J0. Any Canadian voter may donate up to $1,100 to his campaign. To donate, go to http://www.galganov.com/campaign_donation.asp