Salvaging the senate from the status quo
Canadians have been waiting patiently to see if a non-partisan, merit-based Senate appointment system will help solve the problems facing the Senate, while still working within the framework of the Canadian Constitution.
Justin Trudeau and the Liberal party created a new vision for the Senate within the current constitutional framework and recently appointed seven new independents. This comes after many years of scandals plaguing the Upper House and shaking the trust Canadians had in the institution. The most recent scandals revolved primarily around four senators: Mike Duffy, Pamela Wallin, Marc Harb and Patrick Brazeau. The senators had allegedly mismanaged and misrepresented their travel expenses. Brazeau, Duffy and Wallin were criminally charged with fraud and breach of trust. Harb retired from the Senate after the scandal. This triggered the Auditor General of Canada to get involved to examine the expense claims by the entire sitting Senate and former senators over a two-year period. The Auditor General’s report released in June 2015 identified 30 senators with inappropriate claims and recommended nine cases to be followed-up with a criminal investigation. This process increasingly put the Senate in the public eye and Canadians started to question the value and role of the upper house.
The Senate functions as part of Canada’s bi-cameral legislative system. The elected lower chamber is known as the House of Commons, and the appointed upper chamber is known as the Senate. Both houses are involved in the passing of legislation and the Senate’s role is to provide a second look at bill before it becomes law. Sir John A. Macdonald, Canada’s first prime minister, described the role of the Senate as a place where a “sober second thought” is given to legislation that passed through the government. The Senate was created to help represent the regional, provincial and minority interests in Parliament.
Although the intentions of the upper house are noble, most of Canada’s history has been spotted with attempts at Senate reform. In 1847 the federal government considered its first reform towards an elected Senate and in 1909 the Senate considered its own internal reform to have some senators elected, while others appointed and limiting all terms to 7 years.
The ‘60s and ‘70s ushered in the modern era of Senate reform talks. The Quiet Revolution in Quebec and the period of western alienation, the idea of Senate reform gained new life. Provinces pushed for reform that would help better represent their interests at a federal level. The call for reform heightened in 1981 after the creation of the National Energy Program, and once again, western provinces felt that they needed a more fair representation in Parliament. One of the most popular solutions proposed was a Triple-E Senate proposed by Prime Minister Pierre Trudeau and the Liberal party. This would create a Senate that is elected, equal and effective. This proposal would allow for equal representation of each province, which would protect smaller provinces and marginalized regions from having their interests overlooked. The Triple-E reform would require the realignment of Senate seats and require senators to be elected rather than appointed. Although the idea was popular, changes were never made.
Roles of the upper chamber
Despite the Senate being created to help represent regional, provincial and minority interests in Parliament, the Senate has not traditionally been able to accomplish this task. Traditionally, and currently, Members of Parliament in Canada have been primarily white males. The role of the Senate is to theoretically offset this disproportion with a more socially balanced selection of individuals and provide a voice to those who are under-represented in parliament. In a study done in 2015 by Kai L. Chan, a policy professional, it was found that only 38 per cent of senators are women, while women make up 50.4 per cent of the population. Chan’s study also found that the national median age is 40.6, yet the average age of the Senate was 67. It also highlighted the lack of ethnic and racial diversity in the Senate, with 85% of senators being white, which is another misrepresentation of Canada’s population diversity. The 2011 census report showed that one out of four Canadians identify as a visible minority or aboriginal descent and over 20 per cent of the population is foreign born, with the majority of recent immigrants havinga non-white background.
It is continuously debated if the Senate offers fair provincial representation in the government. Senators allotted to each province do not reflect the size of their populations, but rather, the number is calculated using the length of time a province has been part of confederation. This breaks down to the two oldest provinces, Ontario and Quebec, having 24 senators each, while the rest of the provinces range anywhere from ten to four seats.
Although the provinces don’t have equal representation, as suggested in the Triple-E senate reforms, each region has the same representation in the Senate. Ontario and Quebec each have 24 seats, while Alberta, British Columbia, Saskatchewan and Manitoba have 24 seats total. New Brunswick, Nova Scotia and P.E.I together also have 24 seats. Newfoundland exists as its own region with six seats, and each territory is granted one seat. Many critics say that the Senate has created arbitrary regions that have no clear logic for the political or geographic divisions asserted by the regions. The number of seats given to smaller provinces in the constitution has also been criticized for over represents their populations, and therefore their interests in the government.
Another key role of the Senate is to theoretically provide a balance, and check the powers of the House of Commons. In practice, however, it is much more difficult to achieve. The Senate is an appointed body that functions as a second partisan chamber. Members of each party in the Senate are aligned with their respective parties in the House of Commons, and support legislation put forward by their counterparts.
On top of this, members are appointed and not elected, and therefore rarely veto bills, as it is seen as undercutting the more democratic House of Commons. One of the most famous conflicts between the Senate and the House of Commons was in mid-1988 when the Senate delayed the Passage of the Free Trade Agreement. The Senate eventually surrendered to public pressure and passed the bill.
With all of the shortcomings in the prescribed roles of the upper chamber, the Senate’s main role is to provide a “sober second thought” to legislation presented to the government.
“I think having two chambers in a democracy is better than just having one,” Conservative Senator Linda Frum said. “We are there as a safety measure to ensure that legislation that does pass the house is constitutional and is intended to do what the house thinks its there to do. We do provide value for that to be a second check or an insurance body.”
Senate committees are another strength of the red chamber. Senator Muriel McQueen Fergusson called the committees the “heart and soul of the Senate” because of their ability to take an in depth look at social, economic and political issues. The Senate Committees serve a role in government that members of the House of Commons are not able to achieve. Elected members of Parliament may not have time to do in depth research on important issues, but more importantly, they have to answer to the public and may shy away from researching and debating controversial topics.
Harper and the Supreme Court
Despite the fact that the Senate does provide value as a second house in a bi-cameral system, many Canadians want to be done with it all together.
In 2014 the Supreme Court of Canada shut down Stephen Harper’s long-standing pledge for Senate reform. His plan involved introducing term limits on the upper chamber and to have them become an elected body. The court decided that the federal government could not make unilateral changes to a government body without the provinces consent. The role of the Senate is written clearly into the constitution, and the proposed changes would have altered the way the Senate functioned.
“Term limits might change the essential functioning of the Senate, in that it might alter the incentives of the senators in a political way, “Emmett Macfarlane, assistant professor at the University of Waterloo, said. “If you have term limits the Senate goes from being an end of career appointment, to something that is a mid-career stint. The court decided that that might change how senators approach their role in a very fundamental way that requires provincial consent.”
Macfarlane also said that elected senators would definitely behave differently because they have democratic mandate.
The Supreme Court ruled that any major changes to the Senate would require the constitutional amending formula to come in to play.
The constitutional amending formula requires the consent of at least two-thirds of the provincial legislatures, representing at least 50 per cent of the Canadian population and under some circumstances, complete unanimity.
Although Canadians seemed hungry change for the provinces are torn on how, or even if, the Senate should be adjusted.
The NDP’s long-standing position on the Senate is that it should be completely abolished and both the Saskatchewan and Manitoba’s premieres agree. Quebec’s Premiere Philippe Couillard, along with the Premiers New Brunswick and Nova Scotia do not want to abolish the Senate, as it is against their provincial interests. Other provinces are interested in negotiating the rules and role of the Senate, but do not have a firm stance on a specific outcome. With many different provincial interests at play and a range of different ideas on how to solve the issue, it seems that coming to a consensus among the provinces is next to impossible.
The Trudeau vision
After the highly publicized expense scandals, Trudeau and the Liberal party wanted to make changes to how the Senate functioned but had to work within the constitutional limitations. Critics of the Senate raise concern that the Senate had become a place to reward loyalty and long serving government officials with a permanent position in the Senate.
“It just became a pasture for people who had been warhorses for the parties,” Nelson Wiseman, political science professor at the University of Toronto, said. “ And that’s the problem.”
In 2014, Liberal leader Justin Trudeau began express his distaste for partisanship in the Senate after it endured years of scandal and mismanagement of funds. Trudeau went on to expel the Liberal senators from his caucus and announced there would no longer be any Liberals involved with his party in the upper house.
“My Liberal caucus will only have people who were elected by the people of Canada in it and senators will be removed from the kind of partisanship and partisan interference that has been all too common from the Prime Minsters Office towards them over the past months and years,” Trudeau said in an interview with Peter Mansbridge. “The senators will become free to evaluate according to what they see as the benefits or negative impacts of any legislation they come across.”
Once the 2015 election began, Senate reform become part of the Liberal platform. The plan was to create a “new, non-partisan, merit-based process to advise the Prime Minister on Senate appointments.” This idea became action once the Liberals won the federal election and appointed Maryam Monsef as Minister of Democratic Institutions. Part of her mandate was to work towards reforming the Senate within the restrictions of the Constitution.
In January it was announced that a new independent advisory board for Senate appointments was created. The advisory board would be made up of nine highly respected Canadians who would be responsible for presenting Prime Minister Justin Trudeau with non-binding recommendations on Senate appointments. The government produced a plan that would immediately fill seven vacancies with a federal government appointed advisory board. In the long term, the advisory board would have both federal and provincial input.
“Ideally you would have vacancies arising and having three permanent members of the advisory committee appointed by the federal government and then have rotating membership based on where the vacancy is coming from,” Macfarlane, who advised the Liberal government on the changes, said.
Wiseman thinks that the new appointment process guided by a non-partisan advisory panel will help create a higher caliber of senators.
“A lot of the current senators are very good but a lot of them wouldn’t get appointed now, so I think this is much better,” Wiseman said.
The changes were, in part, created to address the merit of those appointed to the Senate butsome don’t believe that this will change the nature of the upper chamber and believe it will just produce more of the same quality of senators.
“One of the claims that the Liberals are making is that the senators that are appointed are somehow more meritorious than past senators,” Frum said. “I don’t think there was a person appointed in this latest round who didn’t have a predecessor in the chamber already in terms of qualifications”
Monsef said in a statement that she hopes the changes will help “inject a new spirit of non-partisanship into the Senate.” Critics believe the government is addressing problems that don’t exist.
“Partisanship was not what was ever wrong with the Senate,” Frum said. “The attempt to remove partisanship from the Senate is solving a problem that never existed and it is not even possible even if you thought it was a good idea.”
Doing away with partisanship may be a lot more difficult in practice than it is in theory. Many current senators identify strongly with party values and are rooted firmly in partisan politics. With 105 senators in the chamber and a low rate of attrition, it may be decades before the upper house is full of non-partisan appointees. There is also nothing to stop senators from organizing themselves into political parties once appointed to the Senate.
“Political organizations by definition require structure,” Frum said. “They require people to organize themselves in groups and those groups will largely coalesce around people who support the government and those who oppose the government. There is no getting rid of that, and there is nothing wrong with that in the political process.”
Diversity in the Senate was strongly recommended in the government proposal and will be addressed in the mandate given to the advisory board. The ambition is to include members who are more reflective of ethnic and cultural diversity found across Canada. On top of this, they hope to find senators with more diverse career and professional backgrounds.
“We can look for diversity not just in their representational attributes, like gender race and religion, but diversity in that the Senate will not just be a mix of former politicians and lawyers,” Macfarlane said. “We will see community leaders who had blue-collar jobs or who worked for the non-profit sector.”
The alterations to the Senate might be ambitious, but none of the changes will be executed without support from within the upper house.
Healing from the inside out
Macfarlane believes that the important changes to the Senate must come from within the institution itself. In recent years, the Senate has started addressing some of their own problems.
In 2011 before the Auditor General’s Senate audit began, the red chamber forbid flying business class on short flights within the Toronto and Ottawa region. They would be required to travel economy class in an effort to help keep their spending in check. A “travel optimization program” was launched and senators are now required to meet with a finance office once a year to help find the most cost-efficient ways to travel.
The Red Chamber once again is trying to solve their own problems, this time by creating a committee dedicated to trying to find a way to be more effective within the constitutional framework. The Senate Modernization Committee is made up of 15 Senators and is chaired by Conservative Senator Thomas McInnis.
“The special committee would be an outgrowth of the Senate's power to change its own rules and conventions to reflect our modern era and enable us to adapt to it,” Claude Carignan, leader of the opposition in the Senate, said in a statement to the Senate. “To make the Senate more effective, this special committee should consider ways to make the Senate transparent and cost- effective.”
Carignan hopes that improving transparency within the Senate will help improve the public’s confidence in the institution as well as make the country aware of the important work that senators do for Canadians.
The committee will also try to address how the chamber will function with non-partisan appointments being made. Frum, a member of the modernization committee, says the committee will address the new changes the Trudeau government is making to the Senate and “a big part of its mandate is to figure out exactly how that’s supposed to work.”
The committee plans to hear from experts in Upper House reform within the Westminster model of government, such as Meg Russell, a constitutional expert from the University College London.
Results from the committee can be expected no later than June 1, 2016.