SENATE REFORM PERILOUS
Trudeau likely to implement changes to the appointments process with care
There will be no Dalton McGuinty moment — that’s the incoming Liberal government’s intent. But making this stick will call for toughness, patience and a willingness to disappoint. It also requires that the current residents of the unelected Senate be shown their place by the elected House of Commons, in a round of “chicken.”
The McGuinty moment, of course, refers to the epic postelection betrayal of 2003, whereby the then- new Ontario premier, having sworn in writing to neither run deficits nor raise taxes, promptly did both. Sadly, he was allowed to get away with this chicanery, even profit from it. But the personal dishonour haunted him for the rest of his time in office.
Justin Trudeau, having just landed a big majority on the strength of public appetite for change, cannot now very well turn around and break his word, without suffering even worse ignominy. The people, not to put too fine a point on it, are sick of liars.
This, and not Machiavellian brilliance, underlay Trudeau’s decision to plan for a series of small deficits, senior Liberals say. They wanted to preserve their ability to implement their platform planks without breaking a promise to balance the books. Which is all well and good, whatever one may think of the economics. “Promise made, promise kept” is a fair selling point for anyone seeking re- election, even amid controversy.
Just ask former Ontario Progressive Conservative premier Mike Harris.
But that raises the question of what to do about the Liberals’ most pressing practical problem: how to push legislation through the Senate, with 22 vacancies, a 47- strong Conservative majority promising to obstruct and even the 29 former Liberal Senators, led by rebel angel Sen. David Smith, sounding notes of defiance.
Trudeau’s platform promised a merit- based, non- partisan appointment process, details undetermined, but likely inspired by the plan of former Ontario Liberal MPP Greg Sorbara, mapped out in an op- ed in the Toronto Star in May 2013. At the height of the Mike Duffy furor, Sorbara called for a 20- member appointments committee made up of members of the Order of Canada, term limits of six years with a six- year renewal clause, and an end to caucus membership for all senators.
Part three, of course, is already partly in place: Trudeau implemented it with a splash early in 2014 when he declared all Liberal senators independent, like it or not, and ousted them from his national caucus. Part two, based on the Supreme Court of Canada’s Senate reference, would require constitutional reform and is not in the cards. This leaves part one, in itself quite tricky, because the country’s top court makes clear ultimate authority over appointments remains with the prime minister. Even consultative elections, the court has judged, would require approval of seven provinces with half the population, as well as both houses of Parliament.
On its face, this puts the Trudeau government between a rock and a hard place. It can probably, given care and good legal advice, devise a process that will pass muster. But this will take time. It’s one thing to say Order of Canada members should appoint senators. It’s another entirely for this to happen in a way that will not be deemed elitist cronyism.
Indeed, it might be more practical for Canadians to submit nominations at a municipal level, for town councils then to offer their picks to a multi- partisan territorial or provincial legislative committee, and for a final list to be sent to the PM from a multipartisan committee of MPs. These and other ideas should at least be considered before the matter is resolved. These are long- term appointments; the Senate’s recent history is an abject lesson in the importance of careful selection.
All of which is why there will be a temptation, particularly if incumbent senators are immediately obstructionist, for Trudeau to appoint a handful of independent, non- partisan but reformminded senators the old- fashioned way, as is his constitutional right, to get the ball rolling and evangelize for reform. But that way is fraught with peril. Even an explicitly cross- partisan direct appointment, say of a Bernard Lord or a Gary Doer, would fall short of the promised reform.
All of which is why the wisest course for Trudeau is probably to do nothing off the top; begin putting his new system in place, however long it takes; and double- dare the Senate to obstruct the will of the House of Commons, in defiance of constitutional convention and its stated purpose as a reservoir of “sober second thought.”
Some senators will balk at the margins temporarily to vent their spleen. Anything beyond that would soon put the cabinet in a position to deploy the nuclear option, which is to say a referendum on abolition, and that would pass overwhelmingly. The venerable senators, knowing this, will gaze into this bright light, and they will blink. What they’ll need, for that to happen, is a little time.
Even an explicitly cross- partisan direct appointment would fall short of the promised reform.