A fundamental question about Justin Trudeau's Senate move

Emmett Macfarlane on the difficulties associated with non-constitutional reform of the Senate

(Sean Kilpatrick, The Canadian Press)

Justin Trudeau has created a big stir with his announcement that all Liberal senators would be effectively removed from caucus to sit as independents, and that, as prime minister, he would appoint senators as part of an “open, transparent, non-partisan process.”

I was asked by the Liberals to provide my informed opinion on the constitutionality of some of their ideas with respect to the Senate (something I would happily do for any political party), particularly in light of the Supreme Court’s deliberations in the ongoing reference case on the constitutionality of the federal government’s proposals to impose term limits for senators and to establish “consultative elections” for senatorial selection.

The Liberals are on the record as opposing outright Senate abolition, which is almost certain to require the unanimous consent of all 10 provinces (another thing the Supreme Court will clarify in its reference decision). With respect to today’s announcement, a fundamental question concerns what meaningful reforms are possible without requiring a constitutional amendment.

Given the nature of my involvement, I do not feel it would be appropriate to explore any ideas or proposals that may have been discussed but were not part of today’s announcement, but I thought I would share my thoughts on the difficulties associated with non-constitutional reform of the Senate and on what the Liberals put forward today.

As I noted in the“Guide to the Senate Reference” I wrote for Maclean’s last fall, the Court is likely to find that consultative elections require the approval of provinces under the “7/50 rule” because it constitutes a change to the “method of selecting senators” under section 42(b) of the Constitution Act, 1982.

Despite the fact the prime minister would retain formal discretion under the law to refuse to appoint the winner of an advisory election, it is reasonable to believe that a convention would emerge that would effectively constrain this discretion in practice – there would be considerable pressure on future prime ministers to appoint elected senators.

But does a similar logic apply to any process a prime minister might put in place to appoint senators? A lot will depend on how much emphasis the Court places on the distinct nature of an electoral process as the thing that binds discretion. Informally, it must be remembered, a prime minister can currently choose senators in any way he wants. If Harper wanted to appoint only people who were members of the Order of Canada, or only his friends, or pull names out of a hat, there’s nothing to stop him from doing so.

The issue becomes much more complicated if a prime minister attempts to formalize a particular process in law. This is where Trudeau’s pledge of an “open, transparent and non-partisan process” gets interesting. On my reading of the amending formula and what we might discern from the Supreme Court’s hearing on Senate reform, it makes a big difference whether he promises to act in a certain way if he were prime minister than if he attempts to entrench a specific process into law (particularly a process that could be said to bind the PM’s discretion).

Appointing senators only as “independents,” and removing Liberal senators from caucus, raises its own issues. For example, the Supreme Court was asked whether Parliament could impose term limits on senators. A key issue is whether that affects the “powers” of the Senate – which the Court is likely (though not definitely) to interpret as anything affecting the “essential features” or “character” of the institution. If it does, then provincial consent is required under the constitutional amending formula.

So there’s a good chance Parliament could not pass a law by itself to forbid partisan affiliation in the Senate, if we believe that the removal of party caucuses affects its essential characteristics. However, there is nothing plainly unconstitutional about the parties – or individual senators, obviously – from deciding not to organize in that manner. The Senate enjoys institutional independence, and so the organization of its internal affairs and procedures are largely left to it to decide.

So nothing about Trudeau’s announcements raise significant constitutional concerns, in my view.

Politically, however, the announcement has already made waves. I have seen some suggest that independent senators are unworkable – that they somehow go against the whole idea of responsible government and that Senate committees, etc. will be unworkable. This is, to be blunt, nonsense. While I agree a non-partisan Parliament would be a tricky thing to operate, the idea that there cannot be a functional Senate opposition composed of independent members is a misrepresentation of how the institution works.

In the short-term, the Liberals might face all sorts of challenges from this relatively risky move. Some have suggested there may be implications for how the Senate funds non-partisan senators. And other have pointed out that the Liberal Party’s constitution states that the “‘Caucus’ means those members of the Party who are members of the House of Commons or the Senate of Canada.” Oops? (I suspect these are manageable problems).

Longer term, some have suggested a Senate composed of independents is unworkable because the government would never be able to get bills through the upper house. This too seems to be a bit of red herring. The Senate, in this scenario, would remain unelected. It is unlikely to suddenly become terribly obstructionist. And new prime ministers have faced a Senate composed of mostly opposition party members in the past, and haven’t had too much trouble getting their agenda through.

The proposals, however, will not convince those who think the only meaningful options are elections or abolition. For those who think there is still some value to an unelected upper chamber, however, what Trudeau seems to be pushing is for more of a cultural change. A move away from patronage and partisanship – even if just through new practices rather than formal legal change – is a good objective, and it might demonstrate that the Senate could be improved without the mess of a major constitutional battle.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. You can follow him on Twitter @EmmMacfarlane

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