At Mace Value

When the Forty-Fifth Parliament is very soon inaugurated, the ceremony will be held in the Senate of Canada, now temporarily ensconced in a building that was once a bustling railway station and then, for a time, a drab conference centre, located across the street from the Château Laurier in Ottawa. King Charles III will read the Speech from the Throne before a select audience of Supreme Court justices, senators, members of Parliament, and senior officials.

As many around the country hang on every word of what will be, arguably, as close to a wartime speech as we have had in a century, some members of the audience will be thinking ahead to what will happen to legislation when it arrives in the same Red Chamber in the coming months, in less pomp-filled circumstances.

Surely the prime minister will be wondering if he can count on the 90 percent of senators who are non-partisan to pass his government’s bills or at least to not modify them too drastically, such that it creates a problem for the House of Commons. The leader of the official opposition will be wondering how to make life difficult for the government in the Senate, when there are only a handful of senators who identify with the House opposition. MPs with pet projects will be scanning the ranks of senators to see who they can enlist as sponsors of their private member’s bills. And senators will be asking themselves how far they can go in opposing bills that come from the Commons. After all, as independent senators, they have no obligation to a political party and are not members of a partisan caucus on the Hill.

Not least, Supreme Court justices will wonder if they will be called upon to pronounce on the pre-emptive use of the Charter’s notwithstanding clause, perhaps because a group of senators, or the Senate as a whole, will protest against resorting to this most exceptional of exceptions in our Constitution.

These are just some of the intrigues that will be brewing in the Red Chamber and that will play out through the life of the new Parliament. They are different in character from the intrigues of the past because the Senate of the Forty-Fifth Parliament is — well, not your father’s Senate. Its story has parallels to the Chinese literary classic Dream of the Red Chamber, whose first eighty chapters were written by one author, Cao Xueqin, but whose next forty chapters were penned by a different author (or authors). Independent senators are holding the pen on the next chapters for their own chamber, and they will be striving for both fidelity to the original plot and innovation in extending their story for a new readership.

The appointment of non-partisan senators began in 2016. After the flurry of nominations in the dying weeks of Justin Trudeau’s government, ninety-three of the 105 seats are now occupied by individuals who style themselves as independents, with another eleven held by Conservatives, who continue to function as a partisan caucus (there is one vacancy due to the retirement of a Conservative this May). Independent senators are organized in three “recognized parliamentary groups” or are “non-affiliated” members who have chosen to be free agents or are newly appointed and still trying to decide which group to join.

One of the big unknowns for the new Parliament has been who will form the government and the opposition in the Senate. Under Trudeau, a group of three senators who were originally appointed as independents styled themselves as the Government Representative Office in the upper house and were responsible for advancing the government’s agenda. Insofar as the business of the Senate is concerned, this arrangement functioned well enough, even if it made the government’s job of getting its bills passed more laborious. But this was an artifice that was never convincing, and the two very competent senators who served as “leader” of the Government Representative Office over the past nine years could never overcome the dissonance of acting and speaking on behalf of the government while claiming to be separate from it. These representatives were not members of the cabinet, as was the case with earlier leaders of the government in the Senate.

This question is no longer moot if Mark Carney should choose to abandon the independent Senate project, in which case he would reconstitute the Liberal caucus and have it serve as the government party in the Senate. To the extent that the prime minister is willing to continue with an independent Senate, however, he could do as his predecessor did by inviting three independent members to serve temporarily as government representatives. Or he could use his appointment powers (including the power to appoint up to eight additional senators beyond the 105) to form a small Liberal government office in the Senate (including a leader who is a cabinet member and minister responsible for the Senate) that would disband voluntarily at the end of his mandate — thus preserving the independent Senate model but clarifying the government’s functioning in the upper house.

Regardless of how Carney organizes his government’s presence in the Senate, the question of who should form the opposition in the Senate remains open. In contrast to the House of Commons, there is no official opposition in the Senate. The only definition of a Senate opposition in the Rules of the Senate of Canada is an indirect one: the “Leader of the Opposition” is “the Senator recognized as the head of the party, other than the Government party, with the most Senators.” In today’s Senate, where “party” and non-partisan “parliamentary groups” have equal status and where in the past nine years there has been no “government party,” it is not clear that the role of the opposition is reserved for a partisan counterpart to the opposition in the House of Commons. There are already precedents: the House and the Senate had different “oppositions,” for example, between 1993 and 1997, when the Bloc Québécois played that role in the Commons and the Progressive Conservatives were the opposition in the Senate. More recently, former Liberal senators who had been expelled from the national caucus served as the “unaffiliated” opposition between January 2014 and October 2015.

But what does it mean to be an opposition in an appointed upper house anyway? The tradition of swapping roles between Liberals and Conservatives as government and opposition in parallel with the House of Commons is being tested by a modern Senate consisting overwhelmingly of non-partisan members. If the Senate is supposed to be independent, as the Fathers of Confederation intended it to be, why should it mirror the House of Commons?

The overriding consideration in being a senator is to be mindful of the constitutional caution for the chamber to “never set itself in opposition against the deliberate and understood wishes of the people,” as famously declared by Sir John A. Macdonald. In this respect, the role of opposition cannot be to oppose for the sake of opposing. It is, in fact, the tendency of partisans to mimic the House of Commons over the years that has contributed to a long-standing legitimacy crisis in the upper chamber.

The move to a more independent, less partisan Senate was buttressed by the Supreme Court of Canada reference on the Senate in 2014, in which the justices reaffirmed that the Senate should not be a carbon copy of the House of Commons, but that it should be “a thoroughly independent body which could canvass dispassionately the measures of the House of Commons.”

There are those who would distort this fundamental point about the Senate to suggest that it is precisely the removal of senators from a partisan political arena that will lead to bad choices on the part of independent senators, resulting in an inevitable constitutional crisis. This is both insulting to independent senators (are they less able to understand their constitutional role than partisan members?) and oblivious to the deeper legitimacy crisis that comes from reactionary senators who persist in their mimicry of the House of Commons.

Nonetheless, there are both Liberals and Conservatives who pine for the good old days of a partisan duopoly running the chamber and would revert to a system of partisan appointments, if they had the opportunity to do so. They see the role of a senator as advancing the objectives of the party as defined by the prime minister or the leader of the party in the House of Commons, and they will happily toggle from government to opposition and back again, election after election, one day extolling the importance of opposing everything the government does and decrying attempts by the other side to counter everything they do the next.

Critics of the independent Senate are fond of saying that those appointed since 2016 are ideologically aligned with the Liberals and will therefore act in unison against a Conservative government — to the point of creating a constitutional crisis. This accusation assumes that a senator with ideological preferences cannot be considered truly “independent.”

When the Conservatives were still riding high in the polls a year ago, there was a flurry of commentary about how a Senate that consisted overwhelmingly of members appointed by a Liberal prime minister could pose a threat to any new government with an agenda that might be radically different from the previous one. This scenario was characterized by conservative commentators as “careening towards a constitutional crisis in the Senate” and can be best understood as part warning to senators to not get in the way of a partisan agenda and part grumpiness about the unelected upper house that is as old as the Senate itself.

This hyperventilating view also reflects a shallow understanding of what it means to be an independent senator. The point of having a more independent body is not to appoint members who are ideologically blank (is that even possible?). On the contrary, some of the most effective independent senators have very strong ideas on a range of public policy issues that may or may not align with the plans of the government of the day.

The test of independence, rather, ought to be that an independent senator is neither part of a parliamentary political caucus nor active in partisan political activities. In practice, this means not taking instructions from the Prime Minister’s Office or the leader of the opposition in the House of Commons and not being subject to the whip of a parliamentary caucus. As the 2014 Supreme Court reference put it, “The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short‑term political objectives.”

Independent senators can be expected to exercise their duties vigorously under any government, using all the procedural tools at their disposal, including proposing extensive amendments to bills that are flawed — as they have done in the past nine years. In fact, since the advent of non-partisan appointments, there have been an unprecedented number of Senate amendments to government bills, many of which were accepted by the House of Commons.

And if bills are proposed by a new government that challenge fundamental rights, including the rights of minorities and regions that senators have a special duty to protect, one should expect the resistance to be even more determined. Unlike opposition partisans, independent senators are not interested in opposing for the sake of opposing. But if egregious violations of rights are involved, I believe Canadians will not only tolerate but actively support a Senate that is prepared to play its role as a defender of basic freedoms and as the chamber of sober second thought. As Macdonald put it, “There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House.”

The bogeyman of a constitutional crisis is just that. There is no reason to think that independent senators will be any less respectful of their unelected status vis‑à‑vis the elected Commons than previous generations of senators. To suggest that they are trigger-happy, cavalier, or just plain ignorant of the consequences is fearmongering.

This is of course the kind of alarmism that is associated with those who want to return to a partisan Senate appointment process. That, however, would spell a true legitimacy crisis for the upper house. Why do we need a Senate that simply parallels what happens in the House of Commons — where senators take instructions from their respective political leaders, as MPs do?

Canadians are clear on this question. When asked, in a Nanos opinion poll last year, if the government should go back to appointing partisan senators, a mere 5 percent of respondents said it should. Contrast that with the 72 percent of Canadians who agree with the new merit-based appointment process. Indeed, 73 percent consider new senators “not being active in a political party” to be a “good change.”

The appointment of independent members since 2016 is the most profound reform in the Senate’s history. It came about because the chamber was facing a legitimacy crisis fostered by rampant partisanship and because other mooted reforms, such as a so‑called Triple‑E Senate, were not feasible. Appointing independents, therefore, should be seen as a lifeline for the institution. It is not, however, a panacea. Senators are acutely aware that there is much more work to be done to demonstrate to Canadians the value of an unelected upper chamber. After all, the same Nanos poll shows that a quarter of Canadians think the Senate is “ineffective/pointless,” and 51 percent have a “negative” or “somewhat negative” impression of someone who is a senator. A big part of that work is to deepen the reforms to ensure a more independent, less partisan institution. Those who would turn back the clock will only increase the risk of breaking the Senate. Perhaps that is their goal.