Prevailing opinion is that, through the “new” and “revolutionary” Senate appointment process, the Senate will finally be able to function “as it was intended.”
There is nothing new about this type of appointment process. In 2012, for instance, then-prime minister Stephen Harper established an advisory committee for vice-regal appointments.
Nor is it revolutionary. It is just a formal way of doing what has always been done informally. Prime ministers have always consulted people about who they should appoint to the Senate. This prime minister decides who sits on his independent advisory board (therefore who he consults) and retains final say over whom to recommend for a Senate appointment.
We are told that by appointing only independent senators, the Liberals are removing partisanship from the Senate. But as Dr. Gary O’Brien, former clerk and deputy clerk of the Senate, pointed out when he testified before the Senate Modernization Committee:
“To be quite honest, in my experience in the 37 years I served, senators did vote freely. I recall very few occasions when there were guns to heads.”
There will always be pressure on senators to vote a certain way: from caucus colleagues; from the media; from lobbyists; or from constituents. Perhaps even a phone call or visit from the minister to one’s office or to the chamber before an important vote, as happened in the spring. There will always be pressure. The fact that, through their appointment, senators don’t have to bow to that pressure is the source of their independence.
The way people use the word “independence” today, as it applies to the Senate, is a misnomer. What we’re being told is that to exercise independence in the Senate you need to be independent of a Party. But that is not what the nation’s founders had in mind.
The definition of “independence,” as used by John A Macdonald and the founding fathers wasn’t about being free of party membership; independence came through your appointment. You were independent because you were appointed until you died. No one could fire you.
What was the point of this? As Gary O’Brien testified:
“It is very important to remember that bicameralism was never put forward as the theory of the best government… Rather, its original purpose was to try to prevent the worst government.”
The worst government was tyranny. They wanted to guard against tyranny of a single monarch or tyranny of the majority. That is what the Senate was designed as a check against. And it was that irrevocable appointment for life that allowed senators to do just that. The idea was to protect the rights of minorities.
Who were those minorities? Not who you think. As historian Janet Ajzenstat points out, when John A. Macdonald spoke about protecting minorities through the bicameral system he was referring to political minorities: the political opposition in the Senate, the commons and in the populace at large.
Thomas Ryan, who was a member of the Canadian Legislative Council, Victoria Division, and among the first senators appointed in 1867 said it best:
“If the constituents of both houses are merely the same,” Ryan argued, “you lose the power of the check, or at least you will not have it effectual because you will have the same sentiment and feeling represented in this house as in the other.”
Andrew Griffith, writing in Policy Options magazine in February, pointed out that the group of non-affiliated senators appointed by Prime Minister Justin Trudeau includes more activists than in the past and largely on the left. In working with them for almost two years now, I can tell you, they are almost all of the left.
Under the guise of what I think is a wilful misinterpretation of the word “independence,” the Trudeau government is appointing senators not of its party, maybe, but most, if not all of them, are, as Ryan wrote, of the same sentiment and feeling as the Liberal majority in the House.
This appointment process is subterfuge, in my opinion, something that cannot be viewed separately from Mr. Trudeau’s efforts in the House, twice, to change the standing orders, to remove procedural tools from the opposition and a similar, self-admitted effort by government representative Sen. Peter Harder to eradicate the opposition in the Senate — the Conservative opposition, let’s be clear. This is exactly the situation the Senate was designed for. Like an insurance policy.
This new Senate appointment process — and new Senate — is partisan politics. It is the brainstorm of the Liberal Party of Canada, and was part of its platform in the 2015 election.
I opposed the Liberal platform in 2015 and I oppose it now. I know it is more fashionable among “correct-thinking” people, including many in the national media, to believe that a new and inevitable tide of “independence” is sweeping the Senate. They better hope not.
David Tkachuk is a senator from Saskatchewan.