For generations, it was patronage heaven — the place where Canadian prime ministers sent an endless stream of political hacks and cronies. But now, Prime Minister Justin Trudeau is preparing a new way of picking senators to end patronage and make the Red Chamber more independent and relevant.
The result could eventually have a dramatic effect on the operations of the upper chamber of Parliament that is so despised by Canadians, and which will be in the spotlight again as Mike Duffy’s trial resumes next week.
Just days after being sworn into office on Nov. 4, Trudeau’s Liberals are quietly — and quickly — putting the finishing touches on an unprecedented appointments procedure. Cabinet will likely be presented with options to approve in the coming weeks and it’s possible the government will go public with its plan by the end of December.
There are now 22 vacancies in the 105-seat Senate chamber. Ultimately, the governing Liberals are hoping that a first round of merit-based Senate appointments will begin in early 2016 — and that all of those who enter the chamber will do so as Independent senators, not tied to a political party’s caucus on Parliament Hill.
The Citizen has learned that while final decisions have not been made, there will likely be three components to the government’s plan:
• An independent advisory body will be created that is composed of Canadians who are people of “stature” and who have public credibility. It will consider people who would be good senators and then refer the names to the prime minister, who keeps the ultimate authority (in accordance with the Constitution) to make the appointments.
• There will be a public input component to the process, so that Canadians have a way of recommending themselves, or others, as future senators.
• There will be a consultative role for the provinces, given that Trudeau wants the Senate to regain credibility as a representative of the regions.
Trudeau was optimistic about the implications of his plan in an interview with the Citizen in late June, as he was gearing up for the election.
“I know that appointing people who are chosen by an impartial non-partisan process and then expecting them to do independent-minded work, and not partisan work in the Senate, will go a long way towards a sense of transparency and openness,” said Trudeau.
I understand the cynicism but I can also point to myself as the only time a leader has said, ‘You know what? I’m going to divest myself of the power that I have over the Senate
He said he wants the Senate to be truly independent, not an appendage of the governing party.
“You have to go back to John A. Macdonald and the way he actually defined the Senate as how it could work in theory as it was set up – and then watch him immediately break those principles.
“Every prime minister since then has done it. And I understand the cynicism but I can also point to myself as the only time a leader has said, ‘You know what? I’m going to divest myself of the power that I have over the Senate. I’m going to divest myself of the control that I have to get senators to contribute to help me get elected or re-elected.’”
Trudeau’s approach to the Senate is causing both excitement and consternation. It has spawned many questions.
Will the Senate finally become a chamber of sober second thought? Or will the introduction of Independent senators, without party affiliation, create unpredictable chaos that makes it difficult for a government to secure passage of its legislation through the upper chamber? What kind of qualifications will future senators need to be chosen for the job? And what can this country learn from Great Britain, where, since 2000, some members of the House of Lords have been chosen purely on merit by an independent appointments commission?
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The first public glimpse of what Trudeau now has in store for reforming Canada’s Parliament came in May 2013 — just as the Senate expense scandal was exploding like dynamite.
In Ottawa, then-Prime Minister Stephen Harper’s office revealed that Nigel Wright, Harper’s chief of staff, had paid $90,000 of Duffy’s questionable expenses out of his own bank account.
Within days, Wright was out of a job in the PMO, and public anger at both Harper and the Senate was white-hot. In newspaper letters to the editor and radio call-in shows, the refrain was constant: Abolish the Senate.
In Toronto, former Ontario finance minister Gregory Sorbara knew it wasn’t so easy. He understood that abolition would lead to messy constitutional talks with the provinces. Sorbara saw another way forward, so he wrote an op-ed for the Toronto Star.
He proposed a 20-member Senate Appointments Committee made up of respected members of the Order of Canada. They would pick future senators, all of whom would sit as Independent members.
“I just thought there’s got to be a simpler solution,” he told the Citizen in an interview this week.
“I worked on the premise that what we have now is thoroughly unacceptable and with the whole Duffy thing it is an embarrassment to the nation.”
He envisages a Senate that resembles a “giant city council,” where Independent senators can have a partisan background but must abstain from partisan politics while they hold office in the Red Chamber. “Maybe blocs will emerge. Blocs that are particularly interested in strengthening the maritime economy and they work together. Or blocs that are interested in aboriginal issues and they work together.”
After he wrote the op-ed, Sorbara sent it to an old colleague from Queen’s Park, Gerald Butts, who had worked as a senior staff member in Premier Dalton McGuinty’s office.
By May of 2013, Butts was the principal adviser to Trudeau, who had been elected leader of the Liberal party just a month earlier.
“I sent it to Butts and I said, ‘This is what you should do.’”
The reaction?
“Well, he really liked it.”
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Several months later, as Trudeau gathered a small group of his staff for a year-end review, he told them he wanted the party to take a new policy on the Senate into the next session. To help out, they asked Matthew Mendelsohn, an academic at the Mowat Centre, a public policy think tank, to write a paper on a new appointments process. As well, Butts called in University of Waterloo political science professor Emmett Macfarlane to review the constitutional implications of what they were considering.
The question he faced: If Trudeau made appointments referred to him by an advisory body, would that require a change to the Constitution? Or could it be done unilaterally, without provincial consent?
Macfarlane told them they could do it without a constitutional amendment, but his advice had a caveat.
“I advised that whatever process they might want to put in, keep it informal. If the prime minister ends up putting together an advisory committee, he can do that,” he said. “But they should not be attempting to formalize anything in law because that would, at least, risk the perception that they’re trying to bind future prime ministers to this process.”
It explicitly must be just as advisory body, he said. “The final choice has to be left to the prime minister.”
One morning in late January of 2014, Sorbara received a note from Butts. “He said, ‘You’re going to like today’s announcement.’”
On Parliament Hill that day, Trudeau publicly dropped the bombshell he had managed to keep secret from his own caucus.
All 32 Liberal senators would immediately be removed from the national Liberal caucus, leaving its membership strictly to MPs. Furthermore, if he became prime minister, he would “put in place an open, transparent, non-partisan public process for appointing and confirming Senators.” As well, all future senators would be “sit independent from the political parties that serve in the House of Commons.”
The Liberal plan was lambasted by Pierre Poilievre, the then-Conservative government’s minister of democratic reform, who said Trudeau was merely seeking “a public relations manoeuvre to avoid accountability.”
Trudeau’s solution would “make the Senate far worse than it already is,” warned Poilievre.
“Not only would senators be unelected, but those who appoint senators would also be unelected. That’s not only just one step from democracy, but two steps away from democracy.”
The Conservatives advocated an elected Senate, but dropped the promise as a priority once the Supreme Court of Canada revealed it would require a constitutional amendment and some provincial consent.
That leaves the Trudeau alternative.
For a model of what might work here, Trudeau’s Liberals just need to look at what’s done in Great Britain. There, the House of Lords serves as the upper chamber, primarily composed of appointed members. The prime minister retains that exclusive power of appointments and regularly sends partisans to the 821-seat House.
In 2000, then-Prime Minister Tony Blair established the House of Lords Appointments Commission, a body that would send some Independent members to the non-partisan “cross benches” in the chamber. Over the past 15 years, more than 5,000 people have applied to the commission, either for someone else or themselves.
The commission has made just 67 appointments (in part, because the prime minister determines how many can be made, and current Prime Minister David Cameron wants no more than two per year).
To be considered, people submit resumes that are vetted by a panel and the few who make the short list are interviewed.
There are strict criteria for potential nominees, including:
• their ability to make an “effective and significant contribution” to the House of Lords; a pre-existing “record of significant achievement”
• a willingness to spend time in the upper chamber
• “outstanding personal qualities” such as “integrity and independence.”
Lord Michael Jay, chair of the appointments commission from 2008 to 2013, said the body has attempted to ensure appointees are qualified and represent the country’s diversity.
“It meant that if you ended up appointing at the end of every two or three years 10 people who were all 55-year-old white males from the south of England, you haven’t fulfilled your function.”
I have not taken this as a lifetime achievement award. I’ve taken it because it now means I can start raising the issues of why the box is creating and extending so much poverty in society
Jay believes the British people have “reacted well” to many of the appointments, which include a former chief rabbi and one of the heads of the Sikh community.
“There are people of considerable integrity and background who are bringing to the House of Lords real experience and wisdom.”
Last month, John Bird was appointed to the House of Lords. He has a remarkable life story. He was homeless at the age of five, was raised at an orphanage, became a petty thief, and spent several terms in prison as a young man. But he taught himself to read and write and in 1991 co-founded the Big Issue, a street magazine that is distributed by homeless people who make a solid profit.
The first few people who accept appointments, they’re the trailblazers
Bird said in an interview this week he hopes to bring “out-of-the-box” thinking to a chamber that thinks inside the box.
“I have not taken this as a lifetime achievement award. I’ve taken it because it now means I can start raising the issues of why the box is creating and extending so much poverty in society.”
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Here in Canada, Sorbara and Macfarlane are looking forward to seeing details of the government’s appointments plan.
“The first few people who accept appointments, they’re the trailblazers,” said Sorbara.
“We’re going to have a Senate that starts to develop a different sense of itself. I think within five or six years you might have a body that is demonstrably better than the one we have now.”
Macfarlane predicts an “adjustment period” during which the Senate’s question period could, for instance, be unpredictable as senators sort out whether they support or challenge a government bill.
“I don’t see chaos. It will be a little bit more dynamic. But I don’t want to mistake dynamism for chaos.”