11/16/2013 06:00 EST | Updated 01/23/2014 06:58 EST

Proposed Senate Reforms Wouldn't Have Stopped Expenses Scandal

The expenses scandal involving senators Mike Duffy, Pamela Wallin, Patrick Brazeau and Mac Harb has given many Canadians a rapacious appetite for Senate reform, but the reforms being suggested by the federal government wouldn't have changed anything, according to some Senate observers.

The four senators were found to have charged hundreds of thousands of dollars in inappropriate expense claims.

"There's no reason to believe an elected senator, or a senator who's subjected to term limits, wouldn't end up having an individual expense scandal of these sorts," said Emmett Macfarlane of Waterloo University in Ontario in a phone interview.

The reforms the government sent to the Supreme Court of Canada to see if they could be passed without violating the Constitution were about elections for senators and term limits.  

There was nothing about changes to how housing or travel expenses are claimed in the government's bill on Senate reform.. Yet it was inappropriate claims, along with loose enforcement of Senate expense rules about those claims, that led to Duffy, Wallin and Brazeau being suspended from the Senate without pay more than a week ago.

Macfarlane, who specializes in Supreme Court issues, added, "It's very unfortunate that the Senate reform issue has been conflated with the expense scandals. The basis for Senate reform has nothing to do with Mike Duffy or the other senators."

'A channel-changing strategy'

Errol Mendes, a constitutional lawyer at the University of Ottawa, thinks going to the Supreme Court over Senate reform is a "fabulous channel-changing strategy" for Prime Minister Stephen Harper.

Harper asked the top court to rule on what kind of constitutional hurdles might be in the way of his government's proposals to elect senators for eight- to 10-year terms. He's also asked for a reference about how many provinces' consent is required in order to abolish the Senate.

Mendes, speaking by phone from Harvard University where he is teaching this term, thinks Harper is trying to divert public attention away from the fact that it was mostly his own hand-picked senators — Duffy, Wallin and Brazeau — who seem to have turned the public against the Senate with a fervour not seen before.

"I think nothing's going to come out [of the court] that's going to please Harper. I think Harper knew this," Mendes said.

"From the judges' questions, it looks highly unlikely they're going to rule in favour of any of the government's questions, except maybe for the property provision," said Mendes, who watched the Supreme Court hearings online.

The Harper government wants to do away with an archaic Senate requirement that says each senator must own property worth at least $4,000 in the province he or she is appointed to represent.  

Most of the provincial officials who appeared before the top court didn't object to that change, but they objected to most of the other reforms proposed by the government.

'Blocked by the courts'

Macfarlane observed, "I suspect the prime minster has received legal advice from the Department of Justice that some of the arguments they were putting forward weren't going to fly very high."

Harper may have had that in mind when, at the Conservative Party's policy convention in Calgary in October, he said in his keynote speech, "Now we are being blocked in the courts" on Senate reform.

Although the Quebec Court of Appeals ruled in October the government's Senate reform proposals were unconstitutional, the Supreme Court has the final word, and its hearings hadn't even started at the time of Harper's speech.

Mendes believes Harper intends to use the court's ruling, if it goes against him, as an election issue.

"He'll say it's one of the reasons we absolutely have to keep a majority government and potentially even think about a referendum on abolition is because he knows that he could attract some of the NDP voters."

NDP Leader Tom Mulcair was on a "Roll up the red carpet" tour this summer as he championed what has been a long-time NDP policy — Senate abolition.

Thumbs down

Mendes thinks the top court will turn thumbs down on most of the government's proposed reforms.
He thinks the court will decide the government can't unilaterally mandate that senators must be successful electoral candidates whom the prime minister must consider for Senate selections. That kind of change he thinks would require the approval of at least seven provinces representing 50 per cent of the population.

As for abolition, both Mendes and Macfarlane think the court will decide all 10 provinces must approve such a profound change to Canada's federal system.

Macfarlane doesn't think Senate reform, or even Senate abolition, will be a "determinative" election issue, even if the two choices become planks in Conservative and NDP platforms.

"I think Canadians are going to care about things they've always cared about, that is, the economy and the health-care system," he said.