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Reflections on four years in the Senate

It will take more hard work, and less politics, to regain the public trust in the Senate.

by Tony Dean is an Independent Senator representing Ontario.

 

After four years in the Senate of Canada, I’ve now seen the worlds of public administration and politics from both sides. I’m also participating in the most significant reform of the Senate in its 153-year-old history.

In 2015, I applied for a seat in Canada’s Senate under newly elected Prime Minister Justin Trudeau’s new independent appointment process. Then teaching graduate students in public policy at the University of Toronto, I had formerly served NDP, Progressive Conservative, and Liberal premiers and their administrations in Ontario. As head of Ontario’s public service I had seen policy-making and politics at the highest levels, working as closely with Conservative policy guru Guy Giorno as with his Ontario Liberal counterpart Gerald Butts.

I was particularly attracted by Trudeau’s commitment to Senate reform, which envisaged not just a more independent appointment process, but a more independent and less-partisan Senate. This followed on the heels of a series of Senate-tarnishing own-goals on the watch of the previous government.

Prime ministers earn the right to chart their own course. Stephen Harper, the former PM, was inclined to micro-manage the Senate through his Conservative Senate appointees, and had previously tested with the Supreme Court his government’s ability to reform the Senate in areas such as term limits, consultative elections, and abolition. He came away empty-handed.

The court was clear in saying that such changes would need constitutional reform, requiring parliamentary approval plus the support of two-thirds of provinces with at least 50 per cent of Canada’s population (and support from all provinces for abolition). This meant that the only realistic option for reform in the short to medium term would be change from within the Senate itself.

Trudeau knew that Senate reform was unlikely under the die-hard, take-turns-in-power Liberal-Conservative duopoly, and so set out to prompt an evolution towards a more independent Senate—a move which initially drew a cynical reaction from his Conservative opponents. But in a move not previously seen in the institution’s 153-year-old history, Trudeau gave some teeth to his reform initiative on at least three fronts.

First, in a move that shook the old Senate to its partisan foundations, the PM ousted the Senate Liberals from his parliamentary political caucus, resulting in considerable unhappiness on the part of Liberal Senators and leaving Senate Conservatives scratching their heads in disbelief.

Second, Trudeau’s appointments have been consistently non-partisan, with dozens of new appointees drawn from the worlds of academia, public administration, business, charitable and community organizations. Some have deep experience in constitutional law, others are experts in banking, financial and energy regulation, the environment and the senior levels of Canada’s public services. There is also a smattering of former legislators. As a result of these appointments and a shift of some Senators away from political caucuses, about 80 per cent of Senators have now declared their independence from partisan caucuses.

Third, the Senate has gender parity for the first time in its history and is considerably more diverse, particularly in terms of Indigenous representation. There is also a greater diversity of ideas and approaches to how the Senate operates. There has been a distinct shift away from the long-standing “us versus them” government-opposition duality in the Senate, which tended to look like a cheaper knock-off of the elected and partisan House of Commons. The reaction of Independent Senators to government bills has been unpredictable. Tough questions are asked of government ministers, and there have been more amendments to government bills than seen in the old system; in the 42nd Parliament, when the Independent Senators group was first formed, 34 bills were passed with 429 amendments. As opposed to taking direction from political parties, Independent Senators have been much more likely to make individual determinations based on their own research and information arising from Senate Committee reviews of bills.

Fourth, we have also seen a more activist Senate led by Independent Senators through motions, inquiries and Senate bills, especially in the areas of social policy and justice system reform. Look no further than Senator Kim Pate, an expert in justice reform and particularly prisoners’ rights and issues associated with solitary confinement.

In June of this year, Senators Rosemary Moodie, Wanda Thomas Bernard, and Marie-Françoise Mégie put a broad Senate lens on anti-Black racism as part of the widespread reaction to the May 25, 2020, killing of George Floyd in Minneapolis. We saw a rare emergency debate on the realities of anti-Black racism in Canada and a “Committee of the Whole” in which government ministers were called to the Senate Chamber to answer questions on government policy and responses.

Senators Frances Lankin, who led a major review of social assistance in Ontario, and Ratna Omidvar, whose career has focused on immigration and refugee settlement, are among 50 Senators who have advocated powerfully for a Guaranteed Basic Income.

Senator Murray Sinclair and his Indigenous (and many non-Indigenous) colleagues are highlighting the social and economic issues affecting the country’s Indigenous peoples, and also some obvious responses such as legislation confirming Canada’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

The Senate’s review of Canada’s first Medical Assistance in Dying Bill (MAID) in 2016 and of cannabis legalization bill C-45 in 2017-18 signalled a shift towards bringing a more research and policy-based approach to reviewing bills. By this I mean, looking closely at the government’s stated policy goals, and the degree to which the proposed legislation was likely to meet those goals effectively, or not.

For both reviews, there was also rare agreement on getting the Senate’s debates and key votes on these bills scheduled on the calendar, as opposed to the more haphazard and unplanned approach to Senate business that has been mostly the norm for decades. Senator Peter Harder (the former government representative in the Senate and now a member of the Progressive Senators Group) has advocated for the formalization of this sort of planned approach to our work through the creation of a Senate business planning committee. There has been a surprising degree of resistance to this on the basis that “we don’t do things like that here,” an argument that wouldn’t last very long with Canadians who expect the Senate to work efficiently on their behalf.

Independents evolve, and the future

Most of the new independent appointees initially coalesced in the now-majority Independent Senators Group (ISG), which was formed in the early stages of reform by the first group of Independent appointees, together with some pre-existing reformers. Not surprisingly, this has now evolved.

The former Liberal caucus, recently re-branded itself as the Progressive Senators Group (PSG) and now has 11 members, including several of Trudeau’s independent appointees.  A third, more conservative-minded independent group, the Canadian Senators Group (CSG), formed last year under the leadership of former Conservative Senator Scott Tannas, and has drawn members from the three other Senate groups. The creation of new independent groups in the Senate is a healthy development and had been anticipated for some time. I believe that all of us share an interest in building a modern, more responsive and less-partisan Senate.

What’s next?

It’s clear that the now-smaller Conservative caucus would love things to go back to normal. Following the initial shock of reform, our Conservative colleagues regrouped and chose to pretend that the old duopoly remained in place, hoping that everything would return to normal if their leader won the 2019 federal election. They have denounced Senate reforms as “Liberal window-dressing.” Independents have been regularly assailed in Trump-like terms as “Fake Trudeau Independent Senators” (I am not kidding here). I’m sure it hasn’t seemed that way to government ministers who have faced tough questioning and criticism from some of the most capable independent social justice advocates in the Senate.

The Conservatives say that as the “official opposition” their job is to oppose the government, and they certainly do this—sometimes in the most simplistic ways, unfailingly following in lockstep with their Conservative colleagues in the House of Commons. The Senate’s Question Period is a replay of QP in the House of Commons, and for the most part so are Conservative contributions to debates and commentary on the legislation that is supposed to be held up for close scrutiny and “sober second thought” once it arrives in the Senate. Instead, Senate business is often just held-up.

While most of these shenanigans can be shrugged off as partisan game-playing, the most damaging behaviour is the intentional use of Senate rules for the purpose of delaying or killing legislative initiatives. The Conservatives used these built-in delays to hold up for over a year a simple vote on a proposed bill to make the national anthem more gender neutral.

There are myriad examples of costly and non-productive delays, including shutting down debate by introducing serial amendments and sub-amendments, and requiring one or two-hour delays by invoking one or two-hour periods of bell ringing to summon Senators while we are obviously all present in the Senate Chamber. If this sounds a little juvenile, that’s not the half of it. These delays hold up Senate business for hours at a time and at a cost of thousands of dollars in additional security and staff support. Senators Sinclair and his Quebec counterpart Senator Pierre Dalphond have initiated a discussion on tackling these delays through changes to Senate rules, but of course this discussion could be held up almost indefinitely by delays provided for by the very rules many of us would like to see change. But we will get there because it’s the right thing to do.

The new Senate’s majority of independent Senators will not be quickly or easily replaced by a successor government wanting a return to partisan appointments. It’s clear that Canadians don’t want this: an April 2019 Nanos poll suggested that 77 per cent of Canadians want future governments to carry on with the new Senate appointment process. Only three per cent of Canadians wanted a return to the old partisan appointment process, while the remaining 20 per cent were unsure.

It will take more hard work, and less politics, to regain the public trust in the Senate. This will have to be earned one day at a time, by demonstrating that the institution is working on behalf of Canadians as opposed to the interests of any particular political party.

This means fulfilling our constitutional responsibility to take a hard look at proposed legislation and providing our best advice, representing our home jurisdictions, and advancing the rights of those in our society who would otherwise have no voice.

We have to fulfil those responsibilities effectively, efficiently and responsibly. This is what a reformed Senate of Canada looks and feels like and it’s a privilege to contribute to the reform process alongside my independent colleagues.

 

This article appeared in the September 21st, 2020 edition of the Hill Times  

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