We Have the Technology

Does Canada’s Senate need reforming? If so, how best to do so? Like any statutory body whose design dates back to the 19th century, the Senate has features that seem ill-suited to the 21st. But it would be a mistake to neglect history when shaping reforms. That would be as unhelpful as suggesting that all the Senate’s present practices be meticulously preserved. Understanding how and why the Senate was originally structured as it was holds within it the seeds of understanding how it can best be reformed now.

One of the ways in which colonial Canada moved away from a hierarchical quasi-dictatorship, where all legislators were appointed by the crown or their local agents, was through upper chambers in each colony that protected the aristocratic and landed gentry while the real spending and legislative power resided in the elected lower houses—legislatures, parliaments or assemblies. At the time of Confederation, it was therefore only natural that the provisions for balance and compromise operating in the colonies and provinces be sustained federally through the establishment of a new upper chamber.

There were compelling reasons why such provisions needed to be maintained. With its vast geography, a populous and well-armed southern neighbour, and internal divisions along regional, linguistic, religious and class lines, the new country required a series of compromises and concessions to coalesce successfully. And for many of the issues relating to this arduous process, the Senate became the crucible of accommodation. The massive population imbalance between the province of Canada (Quebec and Ontario) as compared to New Brunswick and Nova Scotia meant that regionally equal Senate delegations would act as a counterbalance to the principle of representation by population governing the structure of the House of Commons. Paralleling the American model of two senators from every state regardless of each state’s population, this assured that “place” would matter along with population concentration. Also, to deal with the linguistic divide, it was agreed that Quebec and Ontario would have equal Senate delegations.

It is important to remember that the federal government role we have today was created by the provinces and not the other way around. This was not some slapdash last-minute compromise. In particular, debate regarding the Senate and its purposes, structure and appointment took up more time than debate on any other issue, including the very division of powers between Ottawa and the provinces. We need to understand the resulting embrace of balance and compromise in the design of our bicameral legislative structure as we devise Senate reforms. Not only must such reforms be constitutionally sound, but they must also reflect our larger culture of representative and pluralist democracy.

Hence the validity and historical fidelity of the recent Supreme Court decision that the federal government would need substantial provincial consent before introducing elections or term limits on the Senate, with absolute unanimity required in any move to abolish the chamber. Conservatives in particular were deeply disappointed in this decision. This is somewhat ironic given that they were the ones who were most critical of any court seeking to reinterpret historical intent in new rulings that created new law. For better or worse, the court’s decision reflected precisely what the Fathers of Confederation had actually designed.

There is another important issue to be frankly confronted as Senate reforms are considered and advanced by Canada’s new Liberal government: the distortions that all governments since Confederation, regardless of political stripe, have helped entrench. The practice of parties in power appointing senators only from their own ranks, or the widespread use of senators as party factotums, fundraisers, organizers or spokespeople, may have been appropriate in different times but no longer. Strict statutory control over campaign finances and political donations—both as to maximum allowable donations from any one source and maximum expenditures per voter—exclude the legitimacy of using senators on the public payroll for partisan activity. Such appointment practices began in eras when there was no limit on donations or expenditures to or by political parties. But in today’s political climate, deeming a subsidy from the public purse as legitimate because “it has always been that way” is no longer appropriate. So moving away from appointments made by partisan prime ministers for partisan reasons—an approach clearly endorsed by the voters of Canada on October 19— involves not just a change in procedures, but a change in culture.

Appointing large groups of senators from a single political party also flies in the face of the basic principles of balance and representativeness. Britain’s House of Lords has not proceeded in this way for some time; no British government has had a working majority in the Lords for decades. This is as it should be, especially given the broader context in which that chamber operates. Since the Parliament Act 1911, the Lords have been limited to a suspensive veto, which means they can delay, not defeat, any measure. Our own senate should follow suit. It could do so by passing a resolution at the start of every new parliament so that for the life of that parliament it voluntarily relinquishes its ability to defeat any bill and limits its power to a suspensive delay of some maximum duration, say six months. This would be within the Constitution while ensuring that the Senate would be positioned to play a constructive legislative role. If the prime minister, to his credit, is ceasing and desisting from purely partisan appointments, it is not unreasonable to expect the Senate to relinquish, voluntarily for the life of a parliament, its more excessive, as in anti-democratic, powers.

Alone among the federal party leaders in the October election, Justin Trudeau spoke of Senate reform within the Constitution. Stephen Harper advocated simply not filling vacancies until the provinces acquiesced to the constitutional consensus formula that the Supreme Court ruled would be required: seven provinces equal to 50 percent of the population, plus the House of Commons and Senate. Tom Mulcair’s plan of gathering up unanimous provincial consent for abolition, while idealistic and compelling, had very little chance of ever happening. I should mention that when I served in the Senate, I brought forward motions for a national referendum on abolition or reform so that Canadians in every province could express their preference before the first ministers tried to cobble together an agreement on reform or abolition. Colleagues on both sides of the chamber used antiquated rules to adjourn this proposal until its death when parliament prorogued.

Trudeau’s first move, that of cutting the Liberal Party of the House of Commons away from the Liberal senators in the upper chamber, was a serious, if not risky, sign of good faith on the issue of a more independent senate. Further steps are possible. The Liberal government’s proposal of appointing a group of outstanding Canadians who would vet nominees has democratic legitimacy based on the recent election result. If new senators could come from the full dimension of Canadian civil society, including the arts, labour, business, the volunteer sector, agriculture, education and the broad reach of Canada’s different provinces, territories, municipalities, and faith and cultural communities, that would be a good thing. But it requires a nonpartisan effort at recruitment and engagement. Encouraging these communities to nominate people for consideration makes sense if a rich mix of candidates is to be available for vetting and for consideration by the prime minister.

So-called cross benchers chosen in this new way would become, within a decade or so, the new plurality in the Senate, reducing opportunity for partisan excess and bringing an “all the best talents” approach to the chamber’s operations. Moreover, the notion of balance and the need to countervail the House of Commons representation by population dating back to Confederation would be respected if not enhanced. In combination with a suspensive veto, this measure would ensure that the will of Canadians, expressed via the House of Commons, would always prevail, as it should, within the constraints of the law and the Constitution. Not only are both these measures within the realm of possibility during Trudeau’s years as prime minister, but if a parliamentary committee develops an alternative to the wildly distorting first-past-the-post electoral system and puts this to Canadians in a referendum, then the Trudeau administration would have engaged in the most ambitious democratic reform of any Canadian government in history.

Recent Supreme Court decisions and a core respect for the legitimate role of democratic political parties suggest some important procedural caveats. The call for a nomination process and the list of potential nominees vetted according to competence and probity can only culminate in a list of people from which the prime minister would choose before he or she sends an “instrument of advice” to the governor general for appointment. After all, one can become prime minister only by being chosen by a party that has a plurality, ­majority or working coalition in the duly elected House of Commons, a choice that is the driving force behind whom the governor general might call upon to form a government. Ignoring, diminishing or diluting the prime minister’s authority in this role is antithetical to our parliamentary system and would arguably be a violation of the Constitution given that it would represent a substantive change in the design of our bicameral system that requires amendment according to the formula agreed to in 1982–83. It is a road down which we need not go to achieve general reform of the Senate in both the provenance of all future members and the conduct of its affairs.

Other options are available to increase the Senate’s legitimacy and appropriateness. Some of these are procedural. For example, the prime minister and cabinet could indicate they will, in the future, appoint a speaker in the Senate after he or she has been selected by secret ballot by senators themselves. Although this was not possible this round, it can and should be the expected route for the next round. And if the prime minister appoints a legislative leader in the Senate, someone trusted by the government to shepherd legislation through the chamber and ensure it receives sufficient debate and committee hearings, this would mean doing away with the Senate office of government minister. Formerly, this minister, who was either in cabinet or sat on cabinet committees, answered questions on behalf of the government, a charade that lost its meaning decades ago. Rather than a ritualistic daily question period where a pretend minister of the crown reads answers from a briefing book prepared by the usual suspects in the Prime Minister’s Office, the Senate and government could agree on calling a cabinet minister or senior officials, ambassadors, senior regulators, commissioners or military leaders to appear before the chamber to respond to real questions that are well researched with real answers by someone with statutory authority.

Reforms in financial oversight are also possible. For example, the auditor general could be formally mandated to be the Senate’s auditing body. These audits could then be pursued on the same schedule as with all government departments, ensuring a coherent audit plan and an experienced cadre of auditors. This cadre is not available if the auditor general is invited in only from time to time or when the Senate is in crisis.

Finally, all Senate debates and committee hearings could be televised, meeting the same principles of openness and transparency that now govern the House of Commons. As an aside, I should note that motions I made on this issue during my time in the Senate, while having some bipartisan support, were adjourned to death until prorogation by colleagues on both sides.

The Constitution mandates that the Senate exists. The Supreme Court, following the provisions of the Constitution, has ruled that its abolition or reform must clear a high bar of provincial consensus or unanimity—either of which is realistically unattainable in our lifetimes, if ever. The alleged extravagances in the Senate relate in some way to the role of its members, to partisan practice and to the provenance of potential appointees. Rules were vague and unclear because that was the framework that produced the most freedom for partisan activity—an activity that the current prime minister has undertaken to end. All stem from the excesses and distortions of another era that have not been modernized or changed. In dealing with them now, we have an opportunity to produce a streamlined and coherent upper chamber. Canadians have every right to a bicameral parliament that reflects the confederal balance and compromises that made the idea of Canada a reality—one that manifests the many talents and multipluralist nature of our society. Achieving it will require a careful sense of legislative prudence and inquiry.

History will treat Stephen Harper’s desire for electoral reform in the Senate, as well as his support of a nine-year single-elected term, with the respect that a democratic reform merits, even if the chances of actually implementing his reforms were always minimal. Mulcair’s position on abolition, consistent with the populist leanings of every CCF and NDP leader since time immemorial, also deserves respect. It is to our new prime minister’s credit that in dealing with Senate reform he has taken a different approach, respecting both core realities and constitutional constraints. This approach is a reasonable, coherent and responsible way to proceed, for which Trudeau now has a strong electoral mandate. Those in the Senate, who dutifully thought that their most important self-definition began with partisan distinction, have received a clear message that the world has changed. And, therefore, so too has the pervasive culture, a point to which the new prime minister should stick. The sooner he does so, the more legislatively inclusive and expansive Canadian democracy will be.