C-377, the NDP, the PMO and the future of the Senate - Macleans.ca

C-377, the NDP, the PMO and the future of the Senate

Seriously though, what should we do with the red chamber?


The amending of C-377 continues to reverberate.

The Broadbent Institute tweets, seemingly in response to this post, while Greg Fingas posits one reading of the situation.

To start with, for all the talk about the single amendment by Hugh Segal “gutting” C-377, the fact is that the bill remains live, well and set to be reconsidered (and potentially pushed through again in its original form) by the House of Commons. Which makes for a stark contrast to how Harper’s trained seals in the Senate trashed previous legislation which had been approved by Canada’s actual elected representatives – voting it down altogether rather than amending it for reconsideration.

If the best case to be made for the Senate’s continued existence is as a check on the out-of-control executive, then, the Senate’s actions under Harper suggest that it’s broadly failing in that role – and the improvements to C-377 make at best a minor dent in the overall impression.

Conservative Senator Hugh Segal—appointed by Paul Martin—talks to John Ivison and sounds a bit like Brent Rathgeber in explaining how a government is best served.

Mr. Segal said the notion that senators used the amendment as a means of sending a message to the PMO was reading too much into it. “I didn’t get any sense of that.” He disputed the suggestion by some Conservative caucus members that the senators were being disloyal by sending the bill back to the House. “Most of us consider ourselves loyal Conservatives. Sometimes the most loyal thing you can do is protect the Prime Minister from bad legislation,” he said.

Conservative Senator Richard Neufeld—appointed by Stephen Harper—explains how he understands his role.

“I appreciate that he appointed me, but the Senate has a job to do and that job is to review legislation, and if there are things of concern to the Senate, we are to bring it to the government’s attention,” Neufeld told The Vancouver Sun. “I’m just doing the job I was appointed to do. I wasn’t appointed just to rubber-stamp everything. I don’t believe that.”

That said, Senator Neufeld says that if the House of Commons returns the bill to the Senate without the amendments, he would feel obligated at that point to defer to the elected chamber.

Senator Neufeld is part of the Senate Class of December 2008. In July 2010, he suggested he wasn’t sure about moving to an elected Senate before clarifying that he would support the government’s reforms.

Though it’s heartening to see independent thought and legislative rigour, I still basically think we could do without a Senate and that an elected Senate might create more problems than it solves. Is there some kind of way an appointed Senate could be unobjectionable? Is there a compromise here? There is the House of Lords model. If we were starting entirely from scratch, I can imagine something like two or three senators from each province and one from each territory, nominated by an independent advisory body, with the power to review legislation passed by the House of Commons and study issues of public policy. Would they be able to initiate their own legislation? Would this Senate’s agreement be required to pass legislation? Would anyone want to serve on this Senate? It would be lovely if it would be as small and as non-partisan and as limited in power as possible. The sober second thought without any of the other characteristics that make the Senate so problematic in a modern democracy.

I can almost see the sense in something like that. But then, I think I’d still generally prefer that the goal be greater independence for MPs, greater power and responsibility for House committees and, with an empowered House of Commons, an end to the Senate.


C-377, the NDP, the PMO and the future of the Senate

  1. I’m personally a fan of a fixed but appointed Senate. I quite like the current model in principle, and I don’t subscribe to the belief that democracy is anything but a means to an end. Accordingly, I see no reason that we can’t have a Senate formed of Canadian luminaries who are quite nonpartisan and serve as a review body in the legislative side of government (to complement the popular, unelected, unccountable review body we currently have, where lots of time and energy has to be expended to get it to exercise its powers—I’m talking of course about the Supreme Court).

    I agree entirely about an elected Senate: it’s a cop-out solution that just tries to sidestep the abolition issue by proposing something worse.

    • In a democracy, voters elect politicians so politicians have the right to represent voters and are held accountable to them. As Churchill pointed out, democracy is the best of all worse alternatives. Appointed philosopher kings will not be accountable to anyone. Fooling with an inherently corrupt appointment process is the real cop out. The rest of the developed world has either abolished their senates or opted to elected their senators. It’s amazing how parochial and ignorant so many people are on this issue.

    • A “non-partisan” Canadian luminary. A famous/peer-lauded individual who displays no bias for any political party or socio-economic prescriptions? And I’m an easygoing fanatic.

      Me for the burn-it-down-salt-the-ground solution. Or, make it voluntary. Anyone can run to serve, but you don’t get paid. No one who enters the building pulls down a treasury-funded salary. Now let’s see what blockhead’s are keen to contribute.

  2. I’ll agree an elected senate would certainly be worse.
    I’ll agree that the proposed alternative senate would be miles better.
    I’ll always disagree that we should ever get rid of the senate and leave legislation entirely in the hands of those whose short-term interest in getting re-elected outweighs any long-term interest in the welfare of Canadians.

    • Especially since the legislative branch of government (i.e., the HoC) has been essentially neutered by the overwhelming, virtually unchecked power of the executive branch (i.e., the PMO). An independently-appointed Senate comprised of the best and brightest that could be recruited to serve could, properly charged, spare the nation from the worst excesses of an omnipotent executive…one would hope.

      • As Churchill said, democracy is the best of all worse alternatives. Appointing politicians is a worse alternative. The reason we elect politicians in a democracy is so they have the right to represent voters and are held accountable to them come next election. Democracy is the best choice when it comes to affecting legislation.

        No doubt, senate supporters like to project their own reasons for why the institution exists. But the real reason a senate exists is to give regional representation at a federal level.

        The question is, do we need this kind of representation in Canada? The fact is the provinces are very powerful and fund the lion share of programs. Considering we’ve gotten along for 150 years with a whipped partisan senate that hasn’t represented the provinces, why bother now?

        • Appointing politicians is a worse alternative.

          And I would submit electing both houses in a bi-cameral parliament is a worser alternative, an almost-guaranteed formula for the kind of gridlock and chronic inter-house bickering that virtually paralyses federal governance in America.

          Given the insurmountable barriers to the kind of constitutional reform needed to abolish the Senate, let’s at least try to take the blatant partisan patronage appointments out of the selection process. If it’s worked (relatively) well for the Supreme Court of Canada, why not for the Senate, too?

          • It’s absurd to suggest the US federal government is virtually paralyzed. The contention over policy is occurring at present because the US has the equivalent of a minority government: a Democrat president and a Republican House of Representatives. Traditionally Democrats and Republicans compromise to pass legislation. But Tea Bagger extremists are grandstanding. Of course, this is a process that works itself out. Americans and Republicans tire of the grandstanding; Republicans lose power; Republicans re-evalute their coalition with the Tea Baggers.

            The US senate also doesn’t have the power to kill legislation on a simple majority. If Canadians voted to elect senators to represent the provinces/regions, a formula would have to be worked out to determine how the upper house could affect legislation (as happened in other countries.)

          • Thank you for making my case.

            The “equivalent of a minority government” (as you, rather simplistically, characterize the current American state of affairs) could easily prevail in the Canadian parliamentary system, wherein an elected Senate (also claiming to have its own “mandate from the people”) had a different composition and different agenda than the HoC. The composition of an elected Senate could potentially be even further factionalized than now with elected (and partisan) representatives of the Bloc, Greens, NDP, and Independents. In fact, its composition could make the Tea Party’s mischief in American politics look merely annoying by comparison.

            There’s more than enough partisan skulduggery going on in the HoC. We don’t need to import it into the Senate, as well.

          • Import partisan politics to the senate? Clearly you are completely ignorant of what already goes on in the senate. The senate has been corrupted with partisan appointments since Confederation. That makes it either a hallowed hindrance to democratic government or an ornamental rubber stamp.

            Your claim it’s better to have the senate stacked with Liberal and Conservative cronies than elected with members of other parties is ridiculous. We don’t need to elect Tea Baggers to the senate. Harper has already filled the senate with them. (Who knows what they’ll do when the Liberals come to power.)

            Comparing the present relationship between the US executive and House of representatives to a Canadian minority government is not at all simplistic. You are simply ignorant of how American politics work. Canadian minority governments can experience similar “gridlock.” Of course it’s better for parties to negotiate and compromise than dole out absolute corrupt power to an arbitrary minority party (which is our present ironic interpretation of democracy.)

          • ‘Scuse me?

            Where did I “claim it’s better to have the senate stacked with Liberal and Conservative cronies than elected with members of other parties”?

            I’m advocating an appointed Senate freed from party patronage. That’s all.

          • “Given the insurmountable barriers to the kind of constitutional reform needed to abolish the Senate”

            More ignorance. The Supreme Court has yet to rule. The 7/50 formula for a constitutional amendment could suffice. A federal referendum could provide enough impetus for action.

            The constitution doesn’t need to be opened up to wide sweeping changes and squabbling among different interest groups to abolish the senate. A single constitutional amendment is all that would be required. In a democracy, constitutional amendments are rare, but’s it’s foolish to claim they are impossible.

          • If I’m “ignorant” on the subject then include me among a small assemblage of brighter constitutional minds who’ve analyzed the question and reached a similar conclusion. It’s a constitutional quagmire that would deflect the nation’s collective energy from far more important issues, IMO.

            But then, how could I convince you? You’ve already concluded that I’m merely “ignorant” on these matters.

          • “If I’m “ignorant” on the subject then include me among a small assemblage of brighter constitutional minds who’ve analyzed the question and reached a similar conclusion. It’s a constitutional quagmire that would deflect the nation’s collective energy from far more important issues, IMO.”

            There are a wide range of opinions on the matter. None of them matter. The only opinion that matters is the one that the Supreme Court will render some time in the future. To claim as a fact the Supreme Court is going to rule a certain way (as was your original assertion,) could be called “ignorant”, or “foolish”, or “ridiculous”. Take your pick.

            I highly doubt the Supreme Court is going to take the hysterical position that if Canadians want to abolish the senate they will have to open up the constitution to a number of other unrelated issues. If Canadians are to learn anything from Mulroney’s constitutional bungling it should be that constitutional amendments must be dealt with one at a time.

            BTW, the Constitution Act of 1982 was not a “constitutional quagmire” and didn’t require all the provinces to sign on. I think getting rid of the senate would be an easier task.

          • I don’t believe I made any prediction at all about how the Supreme Court is going to rule. But I’ll quite happy to give this a rest until they do.

          • ” let’s at least try to take the blatant partisan patronage appointments out of the selection process. If it’s worked (relatively) well for the Supreme Court of Canada, why not for the Senate, too?”

            The US Supreme Court was free of partisan appointments until Reagan came along. With the Reformers serving as Canada’s new natural governing party, it won’t be long until we see the same.

            Under the Constitution, the prime minister has the right to appoint senators. If one PM gives up this right, another can just as easily take it back. Ultimately, a Constitutional amendment would be required to make the change binding. (Or as ignoramuses would foolishly put it, we would need to “open up the constitution.”)

          • I wasn’t referring to the ridiculously-politicized appointments process in the U.S., which is a five-alarm gong show. I was referring to the process of appointing Supreme Court judges in Canada which, even in Harper’s term, has been relatively free of controversy (so far).

            I see no reason why a similar process couldn’t be instilled in Canada’s political culture, with respect to Senate appointments.

            And I look forward to assailing you with more examples of my own “ignorance”. Yours isn’t exactly disarming, so far.

          • “I wasn’t referring to the ridiculously-politicized appointments process in the U.S., which is a five-alarm gong show. I was referring to the process of appointing Supreme Court judges in Canada which, even in Harper’s term, has been relatively free of controversy (so far).”

            Yeah “so far.” But since reading comprehension is not your strong suit I will reiterate: US president Ronald Reagan is the one who made a mess of the appointment process in the US (starting about 30 years ago.) Part of his incremental agenda to make the US more social-conservative was stacking the Supreme Court with social-con judges. Reformers like Harper have the same agenda. So who knows what the Supreme Court appointment process in Canada will look like 30 years from now.

          • Speculative and irrelevant.

          • “I see no reason why a similar process couldn’t be instilled in Canada’s political culture, with respect to Senate appointments.”

            Many Canadians hold onto the senate like a hoarder would a piece of junk. It’s human nature to blindly cling to institutions. That doesn’t mean they care. If one PM changes the appointment process political junkies might become enamored with it. But most Canadians would not even notice. So a future PM deciding to go back to the traditional appointment process would not cause rioting in the streets.

          • And your point is?

          • “And your point is?”

            That an improved appointment process would stand little chance of being instilled in Canada’s political culture…

            It should also be pointed out, that no one is offering to change the appointment process. Justin Trudeau has only said Canadians need to “demand more from their senators.” The problem with non-partisan appointments (by an independent panel) is that they would ensure a Conservative majority in the senate for a very long time. So I would be surprised if the Liberals would make this a part of their 2015 platform.

    • It’s a fallacy to suggest the senate has any long-term interest in the welfare of Canadians. The senate has been corrupted with partisan politics since Confederation. Senators do not represent the provinces, they represent the PM who appointed them.

      Here is some long-term vision from senators. When Mulroney was PM, Liberal senators tried to score political points by thwarting him on the GST and US-Canada Free Trade Agreement. Today, Liberals wholeheartedly support these policies.

      The senate is as reliable as a broken watch which only tells the right time twice a day. It is comprised of corrupt crony appointments — partisan hacks who have no right meddling in the affairs of democratic government.

      The real work of reviewing legislation is done in Commons committees. The senate is nothing more than a clunky fifth wheel. Either elect senators (so they are accountable to voters) or get rid of them.

      • So, as I suggested above, eliminate patronage in the selection process, eventually eliminating the partisan hacks from the scene. Historically, It’s never really been tried in the Senate appointment process.

        • The Constitution gives the PM the right to appoint senators. That means any kind of reform requires a constitutional amendment to make it binding. So the half-baked solution is not the easy way out.

          BTW, who would appoint these senators in any case? The provinces? That would mean some provinces would appoint them and others would elect them. That sounds like Harper’s present solution that set off threats of constitutional challenges from some of the provinces (which is why he consulted the Supreme Court on the issue.)

          • Short answer: I would rather see the PM exercise his/her authority to appoint Senators by deferring to the recommendations of a panel of “wise persons” than by offering to appoint anybody whose name turns up in some straw vote convened by whichever province (hello, Alberta) buys in.

            BTW, just to complicate the discussion, my panel of wise persons would include First Nations representation.

            None of which requires getting mired in the swamp of constitution writing.

          • Who would appoint the appointers? That’s why democracy is superior: voters are responsible for the person they elect to represent them; if they make a bad choice they only have themselves to blame.

            If the PM creates a federal panel to appoint provincial senators that could very well get “mired in the swamp of constitution writing” as the provinces challenge the federal government in the Supreme Court.

            BTW, there is no precedent to suggest that bringing in a constitutional amendment (typically based on the 7/50 formula,) requires Quebec to sign on to the 1982 Constitution Act. The hysterical position that one constitutional amendment requires negotiating a wide number of constitutional amendments is predicated on an misunderstanding of history.

          • Hey, I’m good with waiting for the Supreme Court ruling on this. Until then…

      • And I never did. But the house is explicitly designed *against* that ever happening. The senate at least has the possibility of it occurring.

        To say that the real work of reviewing legislation is done in the commons committees, given the legislation that’s been coming out, is simply further evidence of why we need somebody else doing it as well. Besides, it completely ignores the point that commons committees, staffed by MPs, are designed to prioritize short-term considerations.

        • Instead of wasting brain cells trying to follow that pretzel logic, I’ll just cut the Gordian knot: democratic government passes legislation that deals with short-term, medium-term and long-term issues. An undemocratic senate provides no special wisdom, insight or foresight in any of those cases. It is arbitrary, unreliable and unaccountable.

          • Wow. So the logic of “I need to get elected in 4 years, so what this will do in 10 years isn’t nearly as important as what it does before election day” is that daunting to you?

            You’re right, you better not waste any brain cells.
            It seems you’ve got precious few to spare.

          • Your hypothesis (you attempt to weasel around) that the senate puts a long-term perspective on legislation (because, presumably, they are appointed for life,) and the House of Commons is only interested in the very short term is a fallacy.

            It is rare for the senate to put forward any legislation. When the senate decides to meddle in the affairs of democratic government the motivation seems to be arbitrary or partisan (like the opposition to the GST and Free Trade Agreement.)

            There are many examples of democratic government acting in the long term interest: Paul Martin’s 10 year Canada Health Transfer; Mulroney’s GST and FTA; Harper’s 20 year commitment to military funding; education reforms among the provinces (which gives Canada a high ranking among other developed countries); climate change legislation with long-term reduction targets among the provinces; etc.

          • If you can’t deal with my argument as it stands, kindly piss off rather than put words in my mouth.

            What I’ve consistently said is that the House of Commons is designed to prioritize short term effects over long term. You seem to be having difficulty understanding the meaning of the word “prioritize”. Here’s a hint: It doesn’t mean “Makes the other impossible.”

            If any of those things you mentioned had short term detriments, they don’t get done. And since you brought it up, I’ll point out that the climate change legislation is actually an excellent example of this, because it was designed specifically to prevent any short-term detriments, even though that meant the longer term would be next to impossible to keep and enforce.

            I’ve never said that the Senate does put a long-term perspective on legislation, but I’ve said that unlike the House, they at least don’t have any incentives to avoid that.

  3. The problem isn’t necessarily with the appointees, it’s the office that appoints them. The PMO is the most powerful, least accountable, and least responsible element of our system of governance.

    The Supreme Court has to sit in public and explain its rulings, the House of Commons and the Senate at least sit in public and publish their proceedings. The PMO does whatever it wants in secret, spends whatever it likes and doesn’t have to explain itself to anyone but a caucus that is ruled by equal measures of fear and favour. We need checks on the power of the prime minister and his courtiers, Conservative Liberal or whatever.

    • Under the Constitution the prime minister has the right to appoint senators. So changing the appointment process requires a constitutional amendment. Of course, Canada would become a laughing stock if it enshrined appointed politicians in its constitution. (Countries in the rest of the developed world that have senates elect senators. It’s a newfangled concept called “democracy.”)

      • FYI…

        Germany’s Bundesrat, the second chambrer, has representatives elected by the landers, not by the people.
        France, who has long ago adopted democracy, has a senate elected by an electoral college (les Grands Electeurs), mostly local politicians, not the citizens of France

        • In Germany, the Bundesrat ensures state representation at a federal level. The people elect a state government to power. The state appoints delegates to represent it at the Bundesrat. When a state elects a new government, new delegates are appointed. This is much different than appointing senators for life or a term limit.

          In France, the senate also ensures regional representation at a federal level. Thousands of regional officials (who are democratically elected) elect senators to 6 year terms.

          If Canada is to indirectly elect senators, like France and Germany, it would require a constitutional amendment. In fact, changing the appointment process, electing senators directly or abolishing the senate all require constitutional amendments. (Only in Canada do people get hysterical about a simple constitutional amendment.)

  4. My mother has suggested an elected Senate with 10 year terms (forced retirement at 75, regardless of time left in the term) and a term limit of one term. Without needing to worry about re-election, and with the long term, we avoid some of the issues of elected office (acting in the interests of re-election, rather than the interests of the job, for instance). It would ensure that the Senate is renewed over time as well, making it more reflective to the politics of the day without being hyper-partisan in the way that a more immediately-elected body can be. Preferably, candidates would also have to run and sit as independents, but as it’s difficult to get politicians into the spirit of that, so it may be better to have the party affiliation in the open.

    • The problem with an elected senate, as with any elected body, is that elections are really good at picking people who are electable. That’s it. If a person happens to be intelligent, wise, well-educated, charitable, and loves Canada and her citizens, but also happens to be of a sour demeanor and not suffer fools kindly, they’re probably not going to be elected.

      Meanwhile, the happy moron with the right party affiliation and no glaring deformities can get elected every time. It’s sad, but that’s the way it is.

      Worse, a person who could only be elected once and for a limited duration has very little incentive to use their time for anything other than bettering their own situation for when they leave office.

      This isn’t to say that there aren’t good things that can come out of elections. Especially systems where re-election is regularly required, as this forces those elected to keep an eye on the feelings of their constituents, and do things so as to make sure people don’t get angry with them.

      But I believe it’s important we have an appointed house as well, to help deal with the electability issue. And I believe it’s important that those appointments last for life, or at very least until you’ve pissed off a majority of the Canadian public, so as to reduce the incentive of the senators to simply work for their own personal benefit.

      If I could make a change to the system, I’d introduce a way that during each election, every voter could vote for one senator who displeased them most. If a majority of voters choose the same senator, that person is removed and their pension forfeited.

  5. The current situation is inherently undemocratic. The most obvious example being that BC has less Senators than NB, despite the fact that BC has about 6 times the population of NB.

    For this reason, it’s all but certain that any changes that require a Constitutional amendment would be vetoed by BC unless a more equitable arrangement is included in the changes.

    Personally, I think the Senate in its current form is an anachronism. Is there any other developed country that has a legislature that is appointed (by a single person, no less), and where its members serve until age 75 with almost zero accountability, and where the notion of representation by population is turned upside down?

    • Good point. Canada and the UK are the only developed countries to appoint senators. The UK has a good excuse given its House of Lords dates back to the 14th century.

      We should either elect senators or get rid of them. Given we’ve gotten along for 150 years without an effective senate, there’s no reason to bother reforming it now. It’s time for an appendectomy.

      • Why is it that only MPs on the side of the majority are viewed as having democratic relevancy? Why is it that all the amendements proposed by the opposition were rejected ? An opposition MP is as democratically elected as Stephen Harper himself or any MP of his caucus. Don’t the people themselves have a role in democracy, other than voting every 4 or so years?x Why is it that only the Senate has accepted to voice the concerns of citizens over this bill ?

        • “Why is it that only MPs on the side of the majority are viewed as having democratic relevancy? Why is it that all the amendements proposed by the opposition were rejected?”

          This is because Canada is not a democracy. Here we dole out absolute corrupt power to arbitrary minority parties (the ironic interpretation of democracy) because of our absurd voting system, First-Past-the-Post.

          We can fix this with Preferential Voting. This changes the ballot from single-choice to ranked ensuring representatives earn their seats with a majority giving them the right to represent their constituents.

          If Canada was a democracy, minority parties would not have the power to bully Commons committees. They would be free to go over legislation with a fine tooth comb, send back omnibus bills, lop off parts of legislation and amend bills. (Real “sober second thought.”)

          An undemocratic senate whose affect on legislation is arbitrary, partisan and unreliable is not a solution to this problem. But electoral reform is (Preferential Voting or Proportional Representation will work.)

    • Last time I checked, the average age of a US Senator (elected) was greater than the average age of a Canadian Senator.

  6. Aaron, your last sentence makes entirely too much sense. I say that
    because I had a comment on a previous post where I said pretty much
    the same thing. Unfortunately, my comment also concluded that such
    thoughts will go floating away into the bright blue sky.
    But a fully staffed and properly structured committee system could solve
    a lot of current problems … and maybe create new ones to fuss over.

  7. Maybe I’m a little slow on this…I’m only now beginning to realize that reforming the Senate would require a reformation of both the House of Commons (eg. reduce the PMO to an executive secretary and a receptionist) and the political parties…

  8. I think we should keep the Senate. It;s a good test of peoples’ characters and in a recent picture of the beautiful, central red carpet I thought it could be referred to as the trough.