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The New Senate

THE NEW SENATE

Presentation by

Senator David Tkachuk

To the Canadian Study of Parliament Conference

September 15, 2017

[check against delivery]

The prevailing opinion is that the “new” Senate is some kind of revolutionary improvement over the old and that the method of appointment is a stroke of genius that will enable the Senate to function “as it was intended”.

Let me bring some reality to the discussion. There is nothing new about this type of appointment process.  Prime Minister Harper in 2012 established an advisory committee for vice-regal appointments.  There have been others instances where it has been used. 

Nor is there anything revolutionary about this process. It is just a formal way of doing what has always been done informally.  All Prime Ministers have consulted people about who they should appoint to the Senate: Colleagues, premiers and, most importantly, the elected members from the province in question. This Prime Minister decides who sits on his advisory board (therefore who he consults) and, like his predecessors, still retains final say over whom to recommend for a Senate appointment, as he constitutionally must.  Nothing has changed. 

If anything it is less transparent than the old way.  We have no idea why one candidate was selected over another.  We don’t know how a Quebec Senator, for example, who didn’t meet the $4000 property ownership qualification when he applied, got through the application process. It’s a mystery given that the application form he filled out explicitly states that the application won’t even be considered if he doesn’t meet this criteria upon filling it out.

 We are told that by appointing only independent senators, the Liberals are removing partisanship from the Senate. As if partisanship was ever the source of the Senate’s problems. As Dr. Gary O’Brien, a former Clerk and Deputy Clerk of the Senate pointed out when he testified before the modernization committee:

To be quite honest, in my experience in the 37 years I served, senators did vote freely. I recall very few occasions when there were guns to heads. I know Senator Molgat once faced a situation when he was the Speaker. The Speaker can vote and the pressure was on him to vote a certain way as the Speaker, and he was almost crying to me. I was the deputy clerk at that point in time and he said, "You wouldn't believe what I'm under.''

A Senator on the committee asked Dr. O’ Brien: so he refused to vote? Dr. O’ Brien replied:

He acted on his own conscience. I think many senators who felt that way would do that because they believed in what they were doing. They were part of a caucus, that's true, but they believed what they were feeling.

Dr. O’ Brien continued:

There were many examples of leaving the caucus; many examples of breakaway. Even in the repatriation of the Constitution, I think 13 Liberal senators did so; Elsie Inman was one of them. She said, "John A. Macdonald wanted me to be independent and I am going to be independent.'' She was a lifer and she was not going to cow-tow to anybody.

This is exactly the nub of the issue: There will always be pressure on Senators to vote a certain way. Whether it is from caucus colleagues, from the media, from lobbyists or from constituents. Perhaps even a phone call or visit from the Minister to one’s office or to the Chamber before an important vote. There will always be pressure. The fact that through their appointment Senators don’t have to bow to that pressure is the source of their independence.

The way people are using the word “independence” today, as it applies to the Senate, is a complete misnomer, which I think is intentional. What we’re being told by the Trudeau government and it’s appointees in the Senate is that to exercise independence in the Senate you need to be independent of a political party. But that is nonsense. Nor is it what the nation’s founders had in mind.

The definition of “independence” as used by John A Macdonald and the Founding Fathers wasn’t about being free of Tory or Liberal Party membership; independence came through your appointment. You were independent because you were appointed until you died. That’s a lot of independence. No one could fire you; no one could remove you; you could think what you wanted, say what you wanted and vote the way you wanted. I am as independent as any Trudeau appointee.

Now what was the point of this?  What was their intention? We have to go back to what the founding fathers were guarding against.  Again, I refer to the testimony of Gary O’Brien:

It is very important to remember that bicameralism was never put forward as the theory of the best government….Rather, its original purpose was to try to prevent the worst government.

The worst government back then was tyranny. They wanted to guard against tyranny of a single monarch or tyranny of the majority. That is what the Senate was designed as a check against. And it was that irrevocable appointment for life that allowed Senators to do just that. As an earlier panelist, Dale Smith, has noted in his book, The Unbroken Machine, the Senate was designed to be a check on the “excesses of democracy” especially to prevent excesses that would infringe on the rights of minorities.

Who were those minorities?  Not the ones you think. As the historian Janet Ajzenstat points out when John A. Macdonald spoke about protecting minorities through the bicameral system he was speaking not of ethnic or religious minorities, he was referring to political minorities: the political opposition in the Senate, the commons and in the populace at large (those are her words not mine).  The intention of the Senate was to act as a check on the House and to guard against the tyranny of the majority there.   Thomas Ryan, who was a member of the Canadian Legislative Council, Victoria Division, and among the first senators appointed in 1867 said it best:

If the constituents of both houses are merely the same,” he argued, “you lose the power of the check, or at least you will not have it effectual because you will have the same sentiment and feeling represented in this house as in the other.”

Under the guise of what I think is a willful misinterpretation of the word “independence” the Trudeau government is appointing Senators not of their party, maybe, but most, if not all, of them are, as Ryan  put it, of the same sentiment and feelingas the Liberal majority in the House. 

Andrew Griffith published a paper in Policy Options magazine last February examining diversity in the Senate. What he pointed out is that the group of non-affiliated Senators appointed by Prime Minister Trudeau includes more activists than in the past and largely on the left. They are almost all of the left.

This appointment process is subterfuge, in my opinion, something that cannot be viewed separately from Mr. Trudeau’s efforts in the House, twice, to change the standing orders, to remove procedural power from the opposition and a similar effort by Senator Harder in the Senate to lead a movement against procedural tools used by the opposition to do its job. Senator Harder has made no bones about the fact that it is his intention to eradicate the opposition in the Senate.

We would do well to remember that the rules in both Chambers are not there to cater to the majority – they have enough levers at their disposal to get their way. They’re the majority. The rules are there to protect the minority. We remove them or modify them to favour the wishes of the majority at the peril of our democracy.

Let me return to partisanship for a minute. The argument people make against the so-called “old” Senate is that partisan senators, which for Senator Harder, means Conservatives (read his paper: Sober Second Thinking: How the Senate Deliberates and Decides) are just rubber stamps for their caucus colleagues on the other side.

People who say that don’t know how caucuses work. I belong to a caucus – the Conservative caucus - because I am in general agreement with their views on the future of the country. I belong to the Party because it is a vehicle for not just expressing the vision we share for the country, but achieving it. In this place (the Senate) if I support my colleagues in the House, I am supporting the will of the people as expressed in the election.  If I disagree with something – a particular piece of legislation, say - I express that in caucus. I make my views known.  And you know, you win some, you lose some.  You may even express those views in the Chamber as Senator Pierre Claude Nolin used to do without hesitation.  Then, you can either hold your nose and vote, or, if it comes down to it, you can abstain from voting.

In extreme situations, as Dr. O’Brien pointed out above, you let your conscience decide. That is when the true meaning of independence comes into play. And the true purpose of the Senate: it is an insurance policy, and a bargain-price one at that.

I think the attitude that the political parties are bad is the same attitude on university campuses that shuts down free speech because somebody might be offended.

This government has made a lot of noise about diversity but only a certain type of diversity. I haven’t seen any farmers appointed to this new independent senate. Nor anyone from the trades.  Not many business people either. Activists and social science majors, on the other hand, are well represented. But no frontline politicians of course. 

Which is ludicrous, because, let’s face it, politics is the game we are in. This new Senate appointment process is politics through and through.  It is the brain storm of a partisan party, the Liberal Party of Canada, and was part of their platform in the 2015 election. It was designed to capitalize on the media ginned-up outrage over the expense improprieties of a few senators.   Never mind that the PM and his senior staffers got tangled up themselves in expense improprieties in just their first year of government and had to pay back tens of thousands in expenses.  Only after they got found out of course.

I opposed the Liberal platform in 2015 and I oppose it now.  But Senator Harder expects me to stand down and roll over because “correct-thinking” people understand that a new and inevitable tide of independence is sweeping the Senate.  I don’t think so.

 I truly believe that this is a very dangerous road we are going down.     

The Senate – pitting those who oppose against those who propose - is like a vaccine against a disease known as the tyranny of the majority.  The so-called “modernizers” are like anti-vaxxers who forget the disease ever existed. Anti-vaxxers have been so effective that in some places diseases that we thought were eradicated, are making a comeback.

Similarly, if you get rid of the opposition in the Senate, you risk exposing the country to democratic despotism: which as Janet Azjenstat put it, is:  the rule of popular leaders in the lower house who claim absolute and uncontested authority to speak for the many. Tyranny, a relic of the past, something we have forgotten about, will make a comeback.

How many times have you heard Justin Trudeau say the following in defence of his policies: “that is what Canadians expect us to do, and that is exactly what we are going to do?  He got 39% of the vote. Yet he believes and wants you to believe he has the uncontested authority to speak for all Canadians; the many.

This effort to create a “new senate” is not some kind of altruistic plan to make it a better place. It is part of a comprehensive political effort to get rid of the conservative opposition in the senate and to help silence the voice of conservative opposition in this country. 

Now I don’t want to be considered anti-modernization, so I have a reform-proposal of my own:  If the Conservative voices and presence in the Senate are so troublesome for some, perhaps we can provide safe spaces and counselling for those with such tender sensibilities.