Alexa Greig

It seems as though it was just yesterday when the Senate was facing its latest existential crisis. Canadians were frustrated by widely-publicized scandals related to the eligibility of living and travel expenses for Senators, which renewed public questioning of the quality of Senate appointees and the legitimacy of the institution itself. The Senate, however, given the rather onerous nature of our constitutional amending formula, is the institutional equivalent of a feline: it has nine lives, always seems to land on its feet, and carries about its business on its own (read: the Constitution’s) terms — whether you like it or not.

That said, back in Fall 2015, the Liberal Party made an election promise to bring “real change” to the Senate. Since the Liberal government’s recent ascent to power, they have been able—unlike many of their predecessors—to make some changes. This blog post takes a closer look.

Where are we now?

On December 3, 2015, the Honorable Maryam Monsef, newly sworn-in Minister of Democratic Institutions, announced the establishment of a new process for advice on Senate appointments. The Liberals touted their plan as merit-based and non-partisan, claiming that such a process will “reduce partisanship in the Senate, improve its capacity to serve Canadians, and help restore public confidence.”

The Independent Advisory Board of Senate Appointments is a five-member advisory committee with the mandate to provide non-binding merit-based recommendations to the Prime Minister on Senate nominations. The Advisory Board will consist of three permanent federal members and two ad hoc members chosen from each of the provinces or territories where a vacancy is to be filled. Each Premier is invited to provide a shortlist of candidates to the Minister of Democratic Institutions and the Prime Minister, from which two candidates are selected. The federal members must participate in deliberations relating to all existing and anticipated Senate vacancies. The provincial members must participate only in deliberations relating to existing and anticipated Senate vacancies in their respective province or territory.

Just last week, on January 19th, the first series of appointments to the Advisory Board were made. The Board will be chaired by Huguette Labelle and the two other federal members will be Dr. Indira Samarasekera and Professor Daniel Jutras. The full list of appointed members to date can be viewed here.

3 points to consider

1- There is a public list of qualifications and assessment criteria.

Yes, you can find a list of criteria — equivalent to what you might expect in a job posting— for eligibility to be considered for a Senate position in Canada. The criteria include those set out in the Constitution Act, 1867 (Senators must be at least thirty years old, be Canadian citizens, and be residents and hold property with a net value of at least $4,000 in the province from which they are appointed), and a series of new additional qualifications and considerations, including:

• Non-Partisanship: “the ability to bring a perspective and contribution to the work of the Senate that is independent and non-partisan,”

• Knowledge Requirement: “a solid knowledge of the legislative process and Canada’s Constitution, including the role of the Senate,” and

• Personal Qualities: “outstanding personal qualities, including adhering to the principles and standards of public life, ethics, and integrity.”

In true Canadian form “fluency in both official languages will be considered an asset.” Start prepping those cover letters, folks!

2- Not all Premiers are thrilled with the new process.

In a statement back in December 2015, British Columbia Premier Christy Clark stated that B.C. will not participate in the proposed process, arguing that the changes fail to address the true shortcomings of the Senate. “It has never been designed to represent British Columbians or our interests at the national level,” said the statement, referring to the disproportionality between the population of British Columbia and its seat allocation in the Red Chamber.

Saskatchewan Premier Brad Wall has also expressed displeasure, defending his position in favor of abolition. Why? “Because it’s 2015,” he said, “and in 2015 I don’t think any Western democracy should be relying on an appointed body to have real decision-making authority.” Wall did concede that he would carefully consider the new selection process, particularly the aspects related to consultations with the provinces.

Liberal House Leader Dominic LeBlanc has said if a provincial government declines its role in the consultation process for provincial members of the Advisory Board, the Prime Minister will appoint members following consultation with other groups and experts in that province.

3- The Prime Minister will retain the final discretion on the appointment.

In February 2013, following the Conservative government’s introduction of legislation that would have provided a framework for provinces to elect Senate nominees and limited the tenure of senators, Prime Minister Stephen Harper referred six questions of law regarding the Senate to the Supreme Court of Canada for its interpretation on constitutionality. In April 2014, the Court unanimously rejected the government’s attempt to act unilaterally without the provinces, thereby clarifying which of the five amending formulas laid out in Part V of the Constitution Act, 1982 would apply to different questions of Senate reform. The Court affirmed that introducing a process of consultative elections for the nomination of Senators would fundamentally modify the constitutional architecture by changing the Senate’s role from a complementary legislative chamber of sober second thought to a legislative body endowed with a popular mandate and democratic legitimacy.

The Supreme Court ruling highlights the importance of the Prime Minister’s ultimate discretion in this matter, and in order to avoid having to seek a constitutional amendment, the Liberals have struck this Advisory Board as a work-around. Indeed, the Terms of Reference for the Advisory Board explicitly indicate that, in addition to the list five candidates provided by the Advisory Board, the Prime Minister may take into consideration all qualified candidates with respect to vacancies from the relevant province or territory.

As stated by Political Science Professor Emmett Macfarlane:

“…[W]e are left with the potentially absurd state of affairs that a prime minister is free to consult a group of elites or advisers – even behind closed doors – but is not free to consult the people directly when deciding whom to appoint to the Senate.”

Parting thoughts

There are currently 22 vacancies in the Senate, and Ontario, Quebec and Manitoba have the largest number of vacancies. The Advisory Board is planning to conduct broad consultations within those three provinces and it is hoped that five vacancies (two in Manitoba, two in Ontario and one in Quebec) will be filled by early 2016. When the time comes, it will certainly be interesting to see how the politics play out, particularly around the provinces that have expressed their dissatisfaction with the process.

The Liberal government’s incremental Senate reform is carefully designed to avoid necessitating a formal constitutional amendment, and seeks to emphasize merit-based appointments and eliminate patronage appointments.

Will the new process produce a body with fewer to no instance of expense fraud? Will the new Senate be less likely to (or be less likely to be perceived to) “rubber-stamp” legislation emanating from the Prime Minister’s Office? It remains to be seen what the short- and long-term impacts. It appears that much will depend on the appointees themselves, who will soon occupy a substantial slice of the 105-member chamber.

So does this Advisory Board mean “real change” for the Senate?

That’s for you to decide.

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Alexa Greig is a Master of Public Policy candidate at the School of Public Policy and Governance, and holds a Bachelor of Social Sciences with a Specialization in Political Science from the University of Ottawa. She has several years of experience working on Parliament Hill, including one year with the longstanding Parliamentary Internship Programme. A proud Hamiltonian, Alexa’s interests include urban policy, cross-country skiing, and all things #cdnpoli.