The suspensions of prominent senators and the Auditor General’s report of spending improprieties, coupled with the general view of the Senate as a wasteful institution, have led the Canadian public to question the purpose, the function and even the necessity of the Senate. An EKOS poll conducted between June 10 and 16, 2015, found that in a choice between abolition, reform and the status quo, 45 percent of respondents indicated they would like to see the Senate “seriously reformed,” 35 percent would like it “abolished” and 11 percent preferred no change.
Not since the 1980s and early 1990s has the quest for Senate reform received so much mainstream public attention. Then we were discussing a Triple-E Senate: elected, effective and efficient. Today that option has been replaced by calls for either abolition or direct elections. The former would completely do away with the upper chamber. The latter would ensure the democratic legitimacy of the institution. Prime Minister Stephen Harper introduced a third option of sorts — one that addresses first, albeit indirectly, the democratic legitimacy of the Senate and second, provincial involvement. He has called on provinces to conduct general elections to choose nominees for the Senate. To date, Alberta is the only province to conduct such elections. There does not seem to be a nationwide enthusiasm for such an option.
All three options make it clear that the current state of the Senate is not tenable.
Each option is grounded in a desire to correct the so-called federalism and democratic deficits. While I am not a big proponent of Senate reform per se, I appreciate the arguments that call for the Senate to be brought in line with democratic and federal principles. However, I do not think that an elected Senate or the outright abolition of the Senate will help us achieve this goal while remaining faithful to the purpose and function of the Senate: namely, sober second thought and regional representation at the centre.
I propose another option, one that would address the democratic and federalism deficits and, in doing so, enhance rather than undermine the purpose and function of the Senate. Instead of abolishing the Senate or holding elections, we should look to reform the way in which senators are appointed. The prime minister, along with provincial premiers and other actors, ought to engage in a vetting process similar to that used for the appointment of Supreme Court justices. Reforming the appointment process accordingly would achieve what is currently lacking in the current process: accountability, transparency and provincial involvement. Furthermore, this option is politically and practically possible, which the others are not.
The Senate has always suffered from what are understood as federalist and democratic deficits. Although one of the original intentions of the Senate was to ensure regional representation at the centre, the prime minister unilaterally appoints senators. The principles of impartiality and independence are perceived to be compromised. For example, the general public views the Senate as merely rubber-stamping the current government’s agenda, or as partisan. Indeed, the original intent of the Senate, to represent regional interests and identities, is missing. Instead, provincial premiers have taken up this task through various mechanisms including First Ministers’ Conferences and premiers’ meetings and conferences. These sentiments are further compounded when considering democracy. Senators not only are unilaterally appointed and sit until the age of 75, they are not democratically accountable to the people through elections. As a result, the Senate’s authority to exercise its functions is questioned: can an appointed upper house legitimately exercise its powers of sober second thought and regional representation at the centre to delay or reject a bill passed by the elected lower house when it is accountable neither to the electorate nor to the regions it supposedly represents?
Considering both the federalism and democratic deficits, coupled with recent “Senate scandals,” it is not surprising that there continues to be a push to reform the Senate into a democratically elected institution or to abolish it. But I question the viability of each option.
Changing the Senate from an appointed institution to an elected one or abolishing the Senate requires a constitutional amendment; the Supreme Court of Canada confirmed this in 1980 and again in 2014. We know that amending Canada’s Constitution is not an easy task, a political fact made painfully obvious by the failed attempts of the Meech Lake Accord and the Charlottetown Accord. However, this is not necessarily the reason I do not support either an elected Senate or abolition.
An elected Senate would generate the democratic and electoral legitimacy the body now lacks. However, we could end up with an upper house similar to the lower house, where partisanship guides the actions of members, thus leading to party interests and agendas overriding the needs and interests of the province or territory that senators are supposed to represent. Further, an elected Senate would inevitably gain political and legislative power and legitimacy, putting it on equal footing with the House of Commons, as both houses could and would claim to represent the will of the people. At first, this may not seem problematic; however, it could lead to political deadlock between the two chambers, with the potential of delaying the passage of bills and creating political and economic instability (as is evident in the US system).
Abolition is certainly not the answer. Aside from the parliamentary and constitutional quagmire that would arise, the Senate is an essential component of federalism. As mentioned previously, a key function of the Senate is regional representation at the centre; this is fundamental to federalism. The establishment of an upper house ensuring regional representation at the centre was also one of the important elements that helped to secure the Confederation compact. The Senate — perhaps not as it stands in current practice, but certainly in principle — is too important an institution to simply abolish, because it exists not only to review the actions of the House of Commons but also to represent regional interests and identities at the centre.
This is not to say the current Senate does not need some fine-tuning. The answer rests with improving the appointment process. Considering the significance of the upper house, the prime minister has an important duty to fulfill when appointing senators. This importance ought to be reflected in the appointment process itself, much as it is in the case of the Supreme Court.
A process, albeit informal, is in place when the prime minister selects a Supreme Court justice. First, the federal justice minister consults various actors within the legal community, including the chief justice of the Supreme Court of Canada, the chief justice of the provincial superior court and the attorney general of the province where there is a vacancy and at least one senior member of the Canadian Bar and the provincial law society. After consultation, a short list is generated and presented to the prime minister. Then both the justice minister and the prime minister assess the candidates according to various criteria, including but not limited to professional capacity, judicial record, personal characteristics and likely contribution to the Court. A candidate is then chosen by the prime minister, approved by cabinet and subsequently appointed by order-in-council. Since 2006, most nominees have faced questions posed by members of an Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada in a public hearing. These hearings, however, do not necessarily determine if the nominee will be appointed; ultimately, the decision rests with the prime minister.
There is little doubt that the process of selecting and appointing Supreme Court justices could benefit from increased transparency and inclusiveness; indeed, there have been calls for such reform from academics. However, even with these shortcomings, the process has not resulted in a loss of public confidence in the institution itself. The spirit informing the Supreme Court appointment process, specifically the drive to appoint the “best” candidate through proper review and vetting of potential candidates’ qualifications and experience, ought to be reflected in a newly revised and formalized Senate appointment process.
First and foremost, eligibility criteria need to be established. According to the Constitution, in order to qualify as a senator one must be a Canadian citizen, be at least 30 years old, own property or territory and live in the province or territory that one will represent. These criteria provide little or no guidance for the prime minister when determining who would make a “good” senator. Thus, the onus should be on the federal and provincial governments to establish further principles. I propose the following (similar to the criteria used to assess Supreme Court candidates): intimate knowledge of the province or territory they are to represent, professional capacity, personal characteristics and likely contribution to the Senate and to the federal functioning of Canada. This, of course, is not an exhaustive list.
Second, the Senate selection process ought to be open and transparent. This can be achieved by holding public hearings where members of the House of Commons, provincial legislatures and perhaps the public are able to question a potential candidate; but they should be more meaningful public hearings than the ones used sparingly by the current government when appointing Supreme Court justices.
Third, and perhaps most importantly, the appointment process ought to include meaningful provincial involvement and consultation. The prime minister should not unilaterally appoint senators. Rather, each time a seat becomes available, a selection committee ought to closely vet potential candidates according to criteria established by the federal and provincial governments. This committee would include the prime minister, the premier representing the province of the vacant seat and select members of the House of Commons, the provincial legislature and the current Senate.
Finally, once a process to appoint senators is established, it should be formalized. Formalization can be effected by either constitutional amendment (though this may prove difficult) or federal legislation.
The key is that the appointment of a senator ought to be a well thought out process and a joint venture between the federal and provincial governments. This would not only address the democratic and federalism deficits; more crucially, it would help establish confidence in an institution that is tasked with representing regional interests and identities at the centre.
And so, before finalizing a Senate appointment, representatives of both orders of government ought to thoroughly vet a potential candidate. This may delay the appointment process; however, the delay may lead to a more effective and legitimate Senate. The Senate is too important to the workings of the Canadian parliamentary and federal system for its appointments process to be a unilateral venture, to be taken lightly or based on partisanship alone. And it is certainly too important to just simply abolish.