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The renewal of the Senate: historic changes underway

Speech to The Canadian Club of Edmonton on April 27, 2017

(Check against delivery)

Thank you for your kind introduction and warm reception. I don’t think it’s a stretch to say that someone with the musical talents of Tommy Banks is a hard act to follow.  

It’s not always easy to be an Ottawa Senator in Alberta, but I know the rivalry between Ottawa and Edmonton is nothing compared to that of Edmonton and Calgary, where I spoke yesterday.

Calgarians were very welcoming, so I made sure not to say that I was saving the best for last by coming to Edmonton today.

Wherever you find yourself in Alberta, it is big sky country, and when it comes to reforming the Senate of Canada, Alberta is also the land of blue sky thinking.

Today, I want to talk about recent changes taking place in the Senate — big, even historic changes —many of which owe a lot to Albertans and their bold ideas for Senate reform.

It was a little over a year ago, in March of 2016, 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.  

Since then, 20 other independent senators have joined our ranks. Today, the number of independents in the Senate 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. 

In many ways, this change is taking us closer to the original vision of the Fathers of Confederation to make the Senate an independent chamber of sober second thought that acts as a steadying balance to the elected House of Commons. Sometimes called the confidence chamber, the government, led by the prime minister, receives its authority through the confidence of members of Parliament.

With this year being the 150th anniversary of Confederation, it’s worth remembering that the country we are celebrating would not exist had the Fathers not agreed to creating 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 six 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. MacDonald, perhaps Canada’s historical figure least likely to be associated with sobriety, who coined the phrase “sober second thought” to describe the Senate 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. The upper chamber was to provide a moderating voice on behalf of the smaller regions as well as for our nation’s minorities.  

The founders also exhibited keen judgment by insisting that the Senate be appointed and not elected.  As an appointed chamber, the Senate would not have the political legitimacy to act as a 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 per cent 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.

Finally, it was also the Old Chieftain who insisted that the Senate be independent in its deliberations 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.” Appointed Senators would be independent from the electoral process to which members of the House of Commons were subject. That way Senators would be distant 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 150 years ago.  

But that doesn’t mean that the Senate cannot be improved.

Calls for changes to Canada’s Senate have been around for a long time, and many of those calls for reform started right here in Alberta. Let me mention just a few.

In the 1980s, the Canada West Foundation did important work offering up prescriptions for a better Senate.

In 1985, Alberta’s Select Special Committee on Upper House Reform introduced the notion of a Triple-E Senate — equal, elected, and effective.  And let me say now, that senate elections in Alberta have contributed thoughtful Canadians to the chamber, including my colleague Doug Black.

During the 1990s, the Alberta-born Reform Party made Senate Reform a big part of its platforms.

In 2006, Stephen Harper’s minority government introduced legislation setting term limits for senators and Senate elections.

Five years later, with a majority government, Stephen Harper introduced the Senate Reform Act, which the then prime minister described as a first step toward a constitutional amendment and an elected Senate.

In 2014, however, the Supreme Court advised that a move to an elected senate would require at least seven provinces representing 50 per cent of the population, and abolition of the Senate would require unanimous agreement of the 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 were on the same page.

Notwithstanding such august support, a majority of Canadians believed the Senate wasn’t living up to this promise.

Its image was tarnished by expense scandals, hyper-partisanship and top-down control by the Prime Minister’s Office. 

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

Coming back to Alberta, in March 2015, the University of Alberta’s Centre for Constitutional Studies organized a conference entitled “Time for Boldness on Senate Reform” to mark the 30th anniversary of Alberta’s Select Special Committee on Upper House Reform.

The three outcomes of this conference led very much to where we are today when it comes to change in Canada’s Senate, that is, a way forward toward constructive, non-constitutional reform that would return the red chamber to its original purpose.

Changes that would make the Senate:

  • a complementary body, not a legislative rival, to the elected House of Commons
  • true to Sir John A. MacDonald’s vision of “sober second thought” 
  • independent of public opinion, control by governments, and the short-term political considerations of political parties

A considerable step forward had already been taken in 2014 when Justin Trudeau, then leader of the third Party in the Commons, removed 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.  So, while the decision to sever ties with Liberal Senators may have seemed to some like tinkering, for the Senate, it was a seismic shift toward independence. Indeed, some Liberal senators have referred to this day as “Independence Day.” 

Remember, 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—a board that includes as member, Indira Samarasekera, former President and Vice-Chancellor of the University of Alberta. Twenty-seven 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. The party line does not exist for them. 

Understandably, not everyone agrees with these changes. Generally, critics represent two opposing views. 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 vision 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, change 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.

At the risk of opening old wounds, I would like to look back at some policy that was highly controversial in Alberta when introduced in the 1980s. Yes, the National Energy Program. We cannot know if the program would have been different had the Senate been independent at the time, but we do know that the responsible cabinet ministers of the day, as cabinet ministers today, would not have taken Senate acquiescence for granted. And we also know that, similar to the legislation for assisted dying, there would have been extensive, national debates with stakeholders and Canadians being heard.

The new appointment process for senators is fundamental to the renewal of the institution.

Let me be clear. The Senate of Canada has had remarkable individuals who served Canadians with dedication and integrity and were appointed by the prime minister of the day. Let me mention Alberta’s own Senator Joyce Fairbairn, the first woman to serve as Government Leader in the Senate, who, during her tenure, also chaired the agriculture committee to ensure the voices of the rural poor were heard and who was a passionate advocate for literacy.

And Tommy Banks, who, in addition to a remarkable musical career, made many vital contributions as senator serving on many committees including Veteran’s Affairs, Finance, and the Standing Committee on Energy, Environment, and Natural Resources, which he chaired. The former Senator Banks also co-chaired a task force to look at urban issues which sparked national debate and led to a Canadian urban strategy.

And I cannot forget my good friend and former Senator Doug Roche, a writer, diplomat and activist, whose life work has been devoted to the cause of peace and disarmament.

These three Albertans were extraordinary senators, and I have the pleasure of working with peers today  whose contributions are exceptional, including two from Edmonton, Senator Claudette Tardif, one of Canada’s foremost defenders of minority linguistic rights and Senator Grant Mitchell, who served in Alberta’s legislature and represented the riding of Edmonton-McClung for 12 years.

There are Senators serving today who are outstanding.

And I can confirm, that thanks to the new appointment process, this will continue to be the case.

This appointment process provides the prime minister with a short list of possible candidates vetted through an independent advisory board. This innovation has yielded, and will continue to yield, excellent appointees. In the Senate today we see people from all walks of life who share a passion for public policy and for Canada, people ready to give back, people ready to protect the Canadian Charter of Rights and Freedoms. People who are unafraid to confront the ugliness of history, such as the shameful chapter of residential schools. People who are committed to support the healing that must take place.

Don’t take my word for it, though. 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.

While it is certain that Independent senators 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. 

My ability to persuade, but also that of Canadians. Independence and freedom from the party line makes Senators free agents who are accountable to the regions they represent and to Canadians—not a political party.

This means that the general public has an opportunity to exert more of its own influence. Consultations with stakeholders, industry associations and members of civil society will have more meaning as Senators are no longer beholden to partisan interest. Indeed, the number of stakeholders reaching out to senators has increased significantly—tripling—over the last year.

An executive with the Canadian Automobile Association involved with a 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.”

I would add that Canadians across the regions may want to consider getting to know their senators a lot better as well.

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.

Independent, complementary to the elected House of Commons, and a chamber of sober second thought: we’re on our way back to the original vision of the Fathers of Confederation — a good place to be as we celebrate 150 years of Canada. 

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 to pursue the business of the country, to make legislation better and to serve the public interest.   

Don't just take this from me.

I was heartened to read in the Calgary Herald this morning the views of one of Canada's foremost experts on Senate Reform, Alberta's own Roger Gibbins.

Let me quote from the article.

"The landscape has changed a lot, said Gibbins, who gave the government credit for doing "as much as they can" on the Senate issue.

Let me thank you again for coming out today and listening. We want to engage Canadians as we move forward with our work in the Senate. That starts with people like you.

Alberta has always been very vocal about Canada’s Senate. Don’t ever change. 

Thank you very much.