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Canada's Senate: Renovation in Progress

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Speech to the Canadian Club of Toronto

February 21st, 2017

The Royal York Hotel

Peter Harder, Government Representative in the Senate

Thank you for that kind introduction, Fred, and the warm reception. I know that Toronto is often not so welcoming to Ottawa Senators. So thanks for that bit of restraint.

It’s delightful to be at the Canadian Club with so many old friends. And encouraging to see so many young faces interested in our bold experiment to renew the Canadian Senate. 

I don’t need to tell you that this was not always the case. Used to be when you got this many people talking about the Senate it ended with a punchline.

But times have changed considerably over the short space of a year. It was only last March when seven Canadians, including myself, became the first senators appointed under a new process aimed at renewing the role of the Senate and rebuilding Canadians’ trust in it. 

Today, the number of Independent senators stands at 42, a plurality in an upper house that is becoming increasingly vital and ever-more detached from the partisanship of the past.

This is literally history in the making. I mention it at the beginning of my remarks to remind you that, although our renewal project is in its early days, we are making real progress towards a Senate that is less partisan, more independent, accountable and transparent. And relevant to Canadians’ daily lives.

Over this short period, the national conversation about the Senate has steadily moved away from patronage, scandal and insignificance, and towards a discussion over how it should best fulfil the role that the Fathers of Confederation envisioned – that of an independent chamber of sober second thought acting as a steadying balance to the elected House of Commons.  

As change materializes, Canadians are beginning to glimpse the Senate’s important role in helping make good law.  This includes how the Senate focuses on aspects of bills that may not have been exhaustively scrutinized by the Commons, how it incorporates the contributions of Canadians who may not have had their views previously heard; and how it can provoke national discussion by studying issues that can be politically delicate.

Let’s be clear off the top. Canada would not exist today had the Fathers not agreed to the need for an upper chamber to act as a safeguard on the powers of the majority in the House of Commons.  To underscore its importance in the debate, the founders spent 6 of 14 days on the Senate when they met in Quebec City in 1864 to cobble together the Confederation bargain.

It was Sir John A. who coined the phrase “sober second thought” as a way to describe the Senate’s as a complementary body designed to regulate legislation initiated by the elected House of Commons.

Our canny first prime minister and his colleagues also built a Senate that mandated equality of numbers among the founding divisions of Canada: initially 24 senators for Quebec, 24 for Ontario, and 24 for the Maritimes.  The upper chamber was to provide a moderating voice on behalf of the smaller regions as well as for our nation’s minorities.  It would not be an exaggeration to argue that, without guaranteed numerical equality of Senators vis-à-vis population-rich Ontario, Quebec and the Maritimes would not have signed the paperwork of Confederation. 

The founders also exhibited keen judgment by insisting that the Senate be appointed and not elected. While the upper chamber has essentially the same powers as the House (save for money bills), the fact that it is not popularly elected serves as a check on its own power. While the Senate chamber can block, amend or postpone legislation, its non-elected makeup helps to preclude it from over-reaching.

Our country’s Founders knew full well that, as an appointed chamber, the Senate would not have the political legitimacy to act as a perennial rival to the elected House of Commons. Instead, it would nearly always defer to the clear will of the people. They were right.

But the Fathers also wanted the Senate to be a “check” on the excesses of winner-take all majority rule, a role that is particularly relevant given the nearly limitless powers that majority governments wield in Canada, often with less than 40% of the popular vote. The Senate was the safety valve of the Confederation deal. This is something often lost in historical translation, as modern-day pundits focus enthusiastically on the unelected nature of the Red Chamber. If the Senate were to have become an elected chamber, it would act as a rival to the House of Commons – not a complementary check.  I guarantee you that deadlock would ensue in Ottawa.

Finally, it was also the Old Chieftain who insisted that the Senate be independent in its deliberations in order to insulate itself from the rough-and-tumble that characterized the partisan politics of the House.

He said, and I quote, “It must be an independent House, having a free action of its own.” One of the objectives sought by of the Fathers through the appointive system was to endow the Senate with independence from the electoral process to which members of the House of Commons were subject. The system was designed to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives. 

It’s a testament to the Founders’ wisdom, that the reasons for establishing the Upper chamber are as valid today as they were at the time. Perhaps even more so.

To the founders’ aims we can add the fact that Canada has become an increasingly complex nation to run, and the government which does so has broadened its reach into nearly all sectors of society. The executive branch is increasingly powerful and that power is concentrated in the hands of fewer individuals. Strong oversights, like those which can be provided by a Senate consistent with the Fathers’   intent, are needed more today than perhaps at any point in our country’s history.

The Founders’ view of and need for the Senate were  underscored by no less than the Supreme Court of Canada ruling of 2014, which recognized that the Senate plays an integral role in our nation’s democratic life.

The decision made it clear that any effort to fundamentally alter the institutional design of the Senate would require a round of constitutional negotiations between the Federal government and the provinces.  For example, transforming the Senate into an elected institution would require the agreement of at least seven provinces representing a combined population of more than 50 per cent of Canadians. The Supreme Court also confirmed that outright abolition of the Senate would require the unanimous agreement of provinces and the federal government

Moreover, the Court confirmed that, at its core, the Senate is meant to be the Canadian Parliament’s less partisan and more independent complementary chamber of sober second thought. So, on the Senate’s fundamental role in our political system, the 1867 Fathers of Confederation and the 2014 Supreme Court are on the same page.

It goes without saying, of course, that for a majority of Canadians, the Senate wasn’t living up to this promise.

Its image was tarnished by the expense scandals, and further public scrutiny revealed a Senate that was increasingly consumed by hyper-partisanship and top-down control by the PMO. To say that the institution went astray is understatement in the extreme.

With constitutional reform out of the question, could anything be done to salvage Canada’s Upper Chamber?

A considerable part of the solution was provided in 2014 by Justin Trudeau, then leader of the third Party in the Commons. While he was astute enough to see that the Senate was not fulfilling the role that the Fathers had intended, he also believed that a form of non-constitutional reform could restore its tattered reputation. So he took action, in 2014, by removing all Liberal Senators from his caucus.

The Senate, he said, had become little more than a hyper-partisan echo chamber to the House because of the party structure that existed within it.  At best, the Senate had become redundant, at worst it amplified the power of the PMO, instead of checking it.   So, while the decision to sever his ties with Liberal Senators may have seemed to some like tinkering, for the Senate, it was a transformational decision.

For almost 150 years, the Senate had been dominated by a duopoly of Liberals and Conservatives. But now, one of the two parties had cut its supporters loose and relinquished a key lever of power. Mr. Trudeau added at the time that, should he become Prime Minister, his goal would be to go back to basics and make the Senate a more independent, complementary and non-partisan Chamber. 

Last year, Mr. Trudeau took another crucial step toward restoring Senate credibility by implementing a new partisan-free and merit-based appointment process.

This new process allows any Canadian who qualifies to apply to an independent advisory board, which makes recommendations to the prime minister. 27 individuals have been appointed under this process, and they now sit in the chamber as Independents unaffiliated with any political party.   Unlike the past, their votes are not whipped. Party line does not exist for them.

Understandably, critiques of reform have emerged, with two of the more prevalent taking opposite different tacks. The first imagines that Senators will become so empowered by the elimination of party discipline that they will brashly assert their formal powers in opposition to elected MPs.  The second argument holds the polar opposite – that the renewed senate will become little more than an advisory committee to the House because of its detachment from true political issues of the day.

My own view is that the truth will be found in the sweet spot of sober second thought put forward by the founders.  Senators will generally subordinate themselves to the House by virtue of the fact that they are appointed. But they will also cease to be a mirror of the House because of the removal of party discipline.

For now, the loosening of the Prime Minister’s prerogative of appointing senators has translated into some unpredictable outcomes for government legislation.  As the Government’s Representative in the Senate, I can definitely attest to this. The corollary, of course, is that this new independence has produced some robust reviews, debates and amendments over bills. 

Last June, for example, our country was engrossed by important legislation allowing physicians to help Canadians facing a terminal condition end their own lives. Senators made an important contribution, which included an amendment to broaden the eligibility for assisted dying beyond those facing foreseeable death. Many Senators argued that, absent broadened eligibility, the existing legislation was not constitutional.

The Government and the House of Commons disagreed with this view. When the bill came back to the Senate, members appropriately yielded to the will of the elected chamber.  But while they weren’t successful in changing the fundamentals of the bill, they did trigger a nationwide debate on the issue of eligibility for assisted dying.

And other important changes to the bill were added by the Senate, like the requirement to issue reports on any issues arising from the legislation, and consultations on palliative care options.

Similarly, two months ago, a group of senators led by Independent Senator André Pratte, a former editor of Montreal-based La Presse, objected to provisions in a bill establishing new federal consumer-protection measures under the Bank Act. Senator Pratte argued that the proposed federal law undermined the principle of cooperative federalism, treaded on provincial jurisdiction over civil law, and ultimately afforded less-robust protections to consumers than provided by similar legislation in Quebec.

The federal government could have tried to shape the debate by asserting its legal authority over the banking sector.

Instead, Finance Minister Bill Morneau chose cooperation over potential division, and agreed to bring in a separate bill at a later date.            

On yet another bill dealing with gender discrimination related to passing down Indian status under the Indian Act, the government accepted a recommendation from a Senate committee to seek a court extension to allow for wider consultation with aboriginal communities.

There are, of course, those who argue that the new Independents are just small-l Liberals dressed in Independents clothing because their appointment is ultimately made by the PM.

I would invite you, though, to look at the resumés of these new parliamentarians, not only for the individual levels of accomplishment, but for the various fields from which they were appointed.

Our new senators include a former police commissioner, an expert on China-Canada trade relations, an advocate for prisoners’ rights, a former bank vice-chairman, and a physician and university professor whose medical practice provides services to seniors and end-of-life patients. A number are recipients of the Order of Canada, including Senator Ratna Omidvar, who happens to sitting to my right. Senator Omidvar has been a tireless advocate for diversity and is sponsoring important legislation on Canadian citizenship.

Those who think the new Senators arrive with their minds made up miss another key point.

While it would be fallacious to argue that Independent senators don’t come to public life with some views already formed, the real point is that they cannot be dictated to. As government representative, I have no caucus to direct, no favours to give and no privileges to revoke. Any influence that I exercise depends on my ability to persuade.

This new freedom from party discipline will also provide the general public with the opportunity to exert more of its own influence. Consultations with stakeholders, industry associations and members of civil society will have more meaning for participants, who will recognize that Senators are no longer beholden to partisan interest. 

Indeed, an executive with the Canadian Automobile Association involved with a recent bill on automobile safety noted, and I quote “a whole lot of people are going to have to get to know a whole lot of senators a lot better than they used to.”           

While the Senate exercises its newfound independence on legislative matters, its work identifying and triggering debate on issues crucial to Canada’s future continues and, I think, will be enhanced.

The tagline on the Senate Liberal website refers to the Senate as Canada’s original think tank, while Historica Canada has described it as Canada’s best think tank. It’s hard to argue.

The Senate’s excellent work over the past year includes a report recommending a national campaign to combat dementia, a timely study on Canada’s trade policy, and a current study on what is entailed in transitioning to a low-carbon economy. Permit me also to give a shout-out to Senator Art Eggleton, who is also with us today, for the work he has helped lead on combating obesity. As deputy chair of the committee on social affairs, science and technology, Senator Eggleton and the committee have recommended solutions like increasing the affordability of healthy foods and combatting trans fat content in food.         

Aside from the appointment of Independents, other important alterations are also taking place.

For instance, government ministers now appear in the Senate’s Question Period once per week, and the Senate has increased transparency by adopting a new proactive public disclosure model for Senators’ expenses and attendance records. We are also examining the prospect of broadcasting of all senate procedures when the Senate moves to the Government Conference Centre, scheduled for next year.

These reforms are notable. But, as I said at the outset, the project is far from finished and a number of issues remain to be resolved.

For example, I regularly get asked how a Senate without political parties organizes itself.  How can an Independent Senator who opposes government legislation get other colleagues to join him or her in that opposition without being part of a political party that acts as an organizational tool?

It’s important to understand that a Senate reformed along Independent lines would not prevent members from coming together into all sorts of like-minded groups, such as military affairs, minority languages, business issues and the like.

Second, I am mindful that many of our changes are very new, and not yet cemented in the public mind.

Many politicians – including some within the Senate itself – would prefer that we maintain the upper chamber as a traditional partisan place, with an official opposition caucus and one for the government.

Their views are sincerely-held. But at the end of the day, we have decided to take the Independent path.

In that spirit, I’d like to spend the few minutes left to me discussing the need to maintain positive momentum, and to not forget what the public demands of us.

Just as I arrived to the Senate, a Nanos Research survey found that three in four Canadians believed that Senators should vote independently of any party caucus, a result that helps confirm the road we’re on. That same poll also found that only 14 per cent of Canadians preferred that senators be members of a party caucus. 

But the survey also made clear that Canadians’ old concerns are not far from the surface, with two-thirds saying they had a negative impression of senators generally.

That said, I believe that faith in our project is growing, but we must assure Canadians that we are getting on with our work by comprehensively debating the issues before us and ultimately voting on them in a timely fashion. This is something we are working on and could be better at.

Canadians who may be affected by important legislation can’t be kept waiting indefinitely.

I also believe that we need to move more quickly to establish an independent oversight mechanism that provides an extra layer of review on senate expenditures as well as advice. When the focus on the Senate is all about spending, it removes attention from the work we should be doing on behalf of Canadians.

Let me close by saying that all the soaring talk around renewal only matters to Canadians insofar as it reaffirms for them what the Senate is supposed to be. When all is said and done, our job is not to simply make the Senate look good. Our role is to pursue the business of the country, to make legislation better and to serve the public interest.  

Let me thank you again for coming out today and listening. And if you can help us maintain the conversation that we’ve started by mentioning it to your students, friends, business colleagues and others, the country will be much obliged.