Justin Trudeau’s move on Senate Reform breaks a log-jam on reforming Canada’s Senate. Instead of being confronted with the options of an elected Senate or abolishing the Senate, both of which the Supreme Court will likely soon tell us require constitutional amendments, we have a third option: removing partisanship as the dominant factor in appointing Senators. And this third option does not require any amendment of the written constitution.
The idea of selecting Canadians to serve in the Senate on a non-party basis is not a new idea. It has long been advocated by academics and writers on Senate reform. But now, for the first time, it has been taken up by the leader of a parliamentary party.
If Mr. Trudeau is successful in fully implementing this idea, he will enable Canada’s Senate to meet our founding fathers’ vision of a Senate that serves as an independent chamber refining and improving the legislation that comes from the House of Commons. Sir John A. Macdonald put it this way:
It must be an independent House, having a free action of its own, for it is only valuable as being a regulatory body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill-considered legislation which may come from that body.
Then Macdonald added these words, “but it will never set itself against the deliberate and understood wishes of the people.”
The Senate has met Macdonald’s expectation that it would not abuse its full legislative powers and veto legislation with strong popular support in the House and in the country. It has been remarkably restrained in the exercise of its powers. But Macdonald undermined his own ideal of an independent chamber by letting partisanship and patronage considerations govern his advice to the Governor General on who should be summoned to the Senate.
The frequency of Senate appointments going to persons who have done little to distinguish themselves except to serve the governing party faithfully has cast a dark shadow over the Senate’s legitimacy. It has also excluded from the Senate outstanding Canadians in all walks of life and sectors of society who are not well connected to the political party in power.
Removing Senators from the party caucus in and of itself will not make for much of a change. But it is a logical preliminary step to building a second chamber whose members are not chosen for the political affiliations but for their accomplishments and expertise.
Various models for such a selection system have been put forward in books and articles on the Senate. Some of them are modelled on the committees that have been put in place at both the federal and provincial levels to remove partisanship from the process of selecting judges. Mr. Trudeau and his colleagues will no doubt look at these models.
Given the federal nature of the country and the constitutional provision that Senators are appointed for the province in which they reside, each provincial government should be represented on the selection committee that selects Senators from its province.
It is important also that the public be given a role in the appointment process. This could be achieved by requiring selection committees to choose from a bank of nominations by citizens and groups built up for each province and the northern territories.
The selection committees should not make the appointments. That would require a constitutional amendment. But they would develop a short list of outstanding nominees from which the prime minister would select the person whose name would go forward to the Governor General. Such a procedure would retain an element of prime ministerial accountability in the process.
In effect, all that is being done here is to modify the constitutional convention whereby the prime minister tells the Governor General who to summon to the Senate. The prime minister has always taken advice in selecting Senators. Now that advice would have to come not from political party notables but through a public, non-partisan process.
Professor Peter H. Russell, O.C., taught Political Science at the University of Toronto from 1958 until 1996, specializing in Judicial, Constitutional and Aboriginal Politics. He is a past President of the Canadian Political Science Association and an Officer of the Order of Canada.