Destroy-and-save strategy isn't as crazy as it might sound

Referendum on abolishing the Senate would serve as a pretext for reform

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by L. IAN MacDONALD
The Gazette, Friday, October 26, 2007

Hugh Segal wants to abolish the Senate in order to reform it.

How's that again? Segal, himself a Conservative member of the Senate, was explaining the method to his madness over breakfast in Ottawa yesterday.

"The motion," he said, "requests that a referendum be held under the provisions of the Referendum Act of 1992 to abolish the Senate."

He would then campaign against his own motion.

He knows this process, as one of the authors of the 1992 Referendum Act, the enabling legislation of the Charlottetown referendum, when he was chief of staff to then-Prime Minister

Brian Mulroney.

Segal has a seconder for his motion - Lowell Murray, leader of the Progressive Conservative remnant in the Senate and former constitutional affairs minister during the Meech Lake period. To pass, it would require the approval of the Liberal-dominated Senate and the cabinet.

The latter is more likely than the former. Senate reform is Stephen Harper's second-favourite sport after hockey. Harper's office was given a heads-up on Segal's motion and had no problem with it. Neither did Marjorie Le Breton, government leader in the Senate and a member of the powerful cabinet committee on priorities and planning.

The Liberals would probably kill the motion on the floor of the Senate, but if it ever got to cabinet, Segal would propose a simple referendum question: "Do you favour the abolition of the Senate of Canada? Yes or No."

Having started the debate and framed the question, Segal would then campaign against his own motion. Huh? Well, what he really wants is a reformed Senate, preferably an elected one.

And he thinks the best way to do that is to "referendize" the issue of Senate reform. As Pierre Trudeau might have put it: He wants to go over the head of the constitution, to the people of this land.

It takes a little explaining.

In terms of a constitutional amendment, abolishing the Senate, like abolishing the Crown, would require the unanimous consent of Ottawa and the provinces. The provinces are unlikely to approve, least of all Nova Scotia and New Brunswick with their 10 senators, as compared with six for Alberta and B.C., with three and four times their populations, a huge sore point in western Canada.

But if a referendum were approved in all provinces, their governments could hardly oppose the will of the people. Referring to 1992 referendum on the Charlottetown Accord, Segal calls this "the de-facto Mulroney amendment - after Charlottetown, there can be no fundamental constitutional change without a referendum."

Then why propose to abolish the Senate, and why oppose your own motion?

Aha, Segal says.

It is, he says, like the 1980 Quebec referendum, where it wasn't enough for the No forces to oppose sovereignty-association in order to prevail. In his famous referendum speech at the Paul Sauvé arena on May 14, 1980, Trudeau made a solemn promise of constitutional reform.

In other words, he turned a No into a Yes. That he later kidnapped the result, and patriated the constitution without Quebec's consent, is another story.

Would Segal have his referendum as a second ballot in a general election, as they do with "propositions" in the United States, and as Ontario just did on a rejected proposal for reform of its legislature?

Nope, he sees it as a stand-alone occasion. But what if no one bothered to vote? Segal believes Canadians have strong opinions about the Senate.

"What's missing from the debate," he says, "is the public. Do we want a second chamber or not?"

He believes Canadians would show up for that debate "because the legitimacy of the Senate is unclear, and its power is remarkable."

There's no doubt about that. Even though the Senate can't kill treasury bills, it can hold up anything it wants - including the free-trade agreement in 1988, and the GST bill in 1990, when Mulroney swamped a Liberal majority by appointing eight additional Tory members.

Indeed, Segal says, a British government White Paper on reforming the Lords "calls the Canadian Senate the most powerful second chamber in the world." And, indeed, in Britain, as Segal says, "in any shootout between the House and the Lords, the House wins."

Which isn't to say there isn't good work done in the Senate on both sides. Leo Kolber's banking committee did an outstanding report on large bank mergers in only six weeks in 2002. Michael Kirby's health committee recommended the Health Care Guarantee to reduce waiting times. And so on.

That's not the point, Segal says.

"Doing good work," he says, "does not convey legitimacy."

He is not wrong about that. And he is framing an interesting debate, with support in high places.

 
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