By Patrice Dutil, June 26, 2017
Prime Minister Justin Trudeau has spared few efforts in trying to transform Canada’s fundamentally democratic institutions. He overhauled the appointments process for the Senate and the Supreme Court, but failed with electoral reform, his first major political disappointment. The entire reform agenda of the current government now requires some sober second thought.
It’s been 225 years since the first election campaign to populate a parliament. Despite its flaws, that Parliament has served Canadians reasonably well. A partisan Senate is a fundamental part of a hard-won bargain and a long parliamentary tradition; the process of selecting a Supreme Court justice with rigour, respect and confidentiality has also served Canadians well. Neither should be so easily cast aside.
Canada’s politics are the product of generations of hard-won demands for effective, responsible government and for the people to be represented and heard in decision-making circles. It goes back to the Conquest of 1760. Indeed, it took little time for the Canadiens to demand the right to be represented in government decision-making and the Royal Proclamation of 1763 promised such an assembly. That promise was not kept, and the Canadiens were only granted an appointed governing council in the Quebec Act of 1774. Fifteen years later, pushed by events and hard political realities, Prime Minister William Pitt (the younger) passed the Constitutional Act of 1791.
Canada’s politics are the product of generations of hard-won demands for effective, responsible government and for the people to be represented and heard in decision-making circles.
The new constitution provided both Upper and Lower Canada with a governance that had the look and feel of the British system. A governor would preside, representing the will of the monarch (read London). In Quebec City, the legislature was composed of two houses: a legislative council of 15 appointed representatives and a legislative assembly. The legislative council was selected by the Governor: eight Anglophones and seven francophones who would ensure that commerce, law, and international trade could thrive. Clearly, the governance was designed to support the government, regardless of what the legislative assembly wished. The executive council, a small body that acted as a cabinet of advisors to the governor, was entirely Anglophone with the exception of Antoine-Louis Juchereau Duchesnay, who joined it years later.
The Council was hardly representative and needed counterbalance. The legislative assembly consisted of 51 representatives who would be elected in their ridings by a show of hands or by winning through petition. It represented a victory for Canadiens who had lobbied hard for the privilege to have a say in the affairs of the state and they constituted the majority of the assembly. The act gave Canada representative government; a franchise that was open to practically every adult, women included; and a first election campaign which took place in the early summer of 1792.
The system was not sustainable because the government was unaccountable. Still, the idea of a two-house parliament, where one was designed to balance the other, was retained. It was patently unfair and justifiably became the object of uprisings in Lower Canada and Upper Canada in the 1830s, but its structure survived remarkably well. The Senate – the successor to the legislative council after the disastrous United Province years – was created by the fathers of Confederation to give different sectors of society a say in Parliament. As in the United States, it meant giving a place to represent provinces, and within those provinces, social and political minorities.
Ideas for reforming the Senate, to change the appointment models for Supreme Court justices and for the House of Commons have made their way in and out of Canada’s history. The Senate, often seen as an object of scorn, has probably attracted more attention than the others. Many want it to be more effective, more equal in terms of representation. Some want its members to be elected. Others would simply like to see it dissolved.
The Senate rarely lived up to its promise, but its nadir was surely in the Harper years. In hindsight, it was clear that Stephen Harper had decided he’d had enough of governing when he stopped naming people to the Senate in 2013. Until that time, most of his choices were uninspired. His objective was to force the provinces to come to the table to negotiate on the Senate by denying them representation in the upper house. He had no choice: the Constitution requires that all provinces as well as the Canadian Parliament approve of any structural change to the upper chamber.
The gambit failed. The provinces ignored him and the policy of demolition by abandonment continued. As senators retired over the following years, the newly elected Liberals found themselves with the opportunity to make 22 appointments as soon as they formed the government. It did not matter much. In opposition, Trudeau had officially removed the senators from the Liberal caucus. The rationale for that decision was never clear. Many thought it was a simple matter of general shame, others simply perceived it as a fear that spending scandals would splash on the Liberals. Few perceived it as a matter of principle.
Trudeau’s depoliticisation plans became more apparent when his government announced that nominations to the Senate would be subject to a supposedly partisan-neutral application process. The prime minister’s office kept the right to make the nomination, but new senators would be based on a competition of “merit,” not democratic needs and or provincial quotas. As a result, it is not clear who or what the Senate represents. There are now 27 people named by the current prime minister who sit as “non-affiliated” Senators. Among them are a former president of the Asia Pacific Foundation of Canada, an art historian long active in the governance of provincial and national museums, a former Secretary to cabinet of Ontario, the president of the Société Nationale de l’Acadie, former deputy ministers, police chiefs, some obscure CEOs, a few law professors, a few doctors. In brief, highly accomplished people of unquestionable abilities who have all been undeniably successful in their careers. Only a select few of the 27 have ever been elected to anything.
The government’s manipulation was certainly not one to advance democracy, accountability or transparency.
Who or what do these fine individuals represent, except technical expertise and successful professional (mostly salaried) lives? Under what banner could they be united to either uphold or upset the will of the elected members of the House of Commons? How could they effectively caucus in order to make their positions politically coherent? The answer is that we do not know, and Canadians don’t know who rules the Senate. Senators are now utterly unaccountable and since they have no label, their teams cannot be punished for their acts by a vote in the next election. The situation is all the more troubling in that there is evidence that the so-called “independents” are actually caucusing. How can the Senate be accountable in such a situation?
The government’s manipulation was certainly not one to advance democracy, accountability or transparency. By removing party labels, most Senators are all apparently free agents. The only Senator wearing a label is the government leader in the house, former mandarin Peter Harder, who was partisan enough to lead the Liberal party’s transition to government. They can decide to act, or not to act. Either they will vote with the government when pressed to do so or will decide to block the will of the democratically-elected House of Commons. Not surprisingly, lobbyists have suddenly rushed to the Senate. The attraction of being able to sway a vote here and there without fear of retribution is simply irresistible.
This was not a good reform for an Upper House. The idea of nominating the equivalent of the Order of Canada to the Senate, and giving winners a very generous salary to boot, until they retire, was never on the table. It was an answer to a non-problem. The Senate has always been an issue of representation, not one of expertise. The Senate has been reduced to a technocracy. At least for now.
The same process was used for the Supreme Court. Faced with a vacancy – another example of the Harper government’s inattentive final two years –Trudeau announced a now familiar scheme. Henceforth, the government would hold an open competition for the position. The assumption was that surely any suitable, highly qualified lawyer would want to seek a position on the Supreme Court and run the risk of having that candidacy publicly turned down.
The government appointed Kim Campbell, a former minister of justice and prime minister, to sift through the nominations. She did this in secret, just like before. The first position to be filled was an “Atlantic Canada” seat, but such petty geographic concerns were not deemed to be important — at least not openly. In the end, a very good nominee was found from Newfoundland and Labrador but the Liberal government insisted that regional representation would be secondary, if not tertiary, to other criteria such as merit, gender, ethnic representativeness, etc. It was never revealed who else was in contention. For all we know, there never was a “competition.”
The point is that the same outcome could have been obtained by the traditional, more discretionary, and more honourable methods. The Trudeau habit of vaunting competitions and empanelling “objective” juries produces no better product than in the past in the case of the Supreme Court and a much worse product in the case of the Senate. What it has done is remove political geography and politics from the equation. It is a showy procedure of no substance, but with serious implications. The government has gotten away with it on two issues, but not on the third: electoral reform.
During the 2015 election the Liberal party was very clear: The first-past-the-post method would be discarded, and legislation establishing a new method of voting would be submitted to parliament by mid-2017. There was speculation that Trudeau harboured the hope that a ranked voting method would be easily sanctioned, which would include a voter’s level of preference for nominees. A Tory voter, for instance, would put a number 1 next to the Tory nominee, with a number 2 (and so on) going to any other nominee. The notion was that every ballot would “count” as less-popular candidates were eliminated, until the choices amounted to giving a winner enough votes to win more than a 50 percent majority. Gone would be the days when a party nominee could win with a small plurality of the vote. Based on past elections, most experts agreed that under this scheme the Liberals would have won most of the time, or at least have sufficient seats to force themselves into a governing coalition. Finally, the Trudeau “reforms” attracted attention.
The government did not help itself. The first mistake was in insisting on carrying out the preposterous promise of determining the next election under a system different than the one used since 1792 after the idea had been dismissed four times provincially — it was also effectively dismissed for a fifth time in October 2016 in PEI. The second was in awarding the portfolio to the youngest possible minister whose shaky awareness of the subtleties of Canadian democracy only rivaled that of the Prime Minister’s. The third was creating an unwieldy parliamentary committee and giving it the impossible job of delivering a consensus on a highly complicated topic in the shortest imaginable time. Consensus was not possible: two parties wanted a system of proportional representation; two parties did not seem to care either way. One party promised to make peace but only on the condition of a referendum. The government party caved, unable to make up its own mind.
The end result was a recommendation for proportional representation and a referendum on the issue: precisely the two options the prime minister did not want. Not surprisingly, Trudeau turned on his heels, swallowed hard, and decided that his government would not pursue electoral reform. The minister was dismissed, and the mandate to refresh democracy was handed over to one who was even younger and less experienced.
The prime minister has been rebuffed on his electoral reform plan. Now his actions on the Senate and the Supreme Court must be rejected as well for the same democratic reasons.
The Senate should be a house of politicians. Expertise has its place, and the argument here is not that the Senate be the holdout of the ignorant. But there must be a place in our governance to parry the unbalanced representation of the House of Commons. Nominations to the Senate should go to people who have experience in representing others, either federally, provincially, municipally, or in tribal councils. It should go to representatives of peoples who are systematically underrepresented in the lower house: Women, Francophones outside Quebec, Anglophones inside Quebec, Indigenous people, and minorities of all sorts. Senators should caucus provincially as they are supposed to, as well as in party formations. In addition, I would argue that Senators should be retired from the workforce, and aged 65 and over, in order to ensure a steady turnover as they must end their mandate at age 75, so no Senator should serve more than a dozen years. No one deserves a sinecure in the Senate any sooner. Let it be indeed a “Council of Elders,” as Senator Murray Sinclair has wished it.
None of this requires a constitutional amendment; I merely call on prime ministers of today and tomorrow to make nominations to the Senate that will advance the spirit of democracy.
The House of Commons has served Canadians well, even with the often results-distorting electoral system used. Our electoral system has, by virtue of its structure, shaped a political tradition that encourages a healthy competition, both federally and provincially. It has delivered a healthy alternance of governments and a civilized system to debate ideas. The Senate should be used to honour political militants and to counterbalance the sometimes distorted results of an election. The Justices of the Supreme Court should be selected in a discreet manner, without grandstanding and proclamations of a new “fairness” and a new “transparency” simply because they are a sham.
There is much opportunity to help restore politics in our civic life. Western European countries have been able to raise participation levels by holding elections on Sundays or on holidays. Their parties are better funded to carry out educational campaigns. These ideas were not considered by the parliamentary committee in the summer of 2016 because the resolve to actually improve our democracy was not there. While there is little hope that the current government is sufficiently creative to seriously address the problems that ail our politics, the experiments of the last 18 months should be sufficient to reinvigorate the debate about how to restore democracy to something that would at least approximate the high hopes and aspirations of those who demanded representation 225 years ago.
Patrice Dutil is a professor of Politics and Public Administration at Ryerson University and President of the Champlain Society. His latest book is Prime Ministerial Power in Canada: Its Origins under Macdonald, Laurier and Borden (UBC Press, 2017).