If you want to be a Senator, now is your chance

By Justin Ling Web Only

If you want to be a Senator, now is your chance

The Trudeau Government has unveiled its reform package for the upper chamber, complete with the criteria that prospective candidates must meet, and a commitment that Canadians will be able to nominate themselves for the job.

But the plan still raises questions as to what sort of unilateral reform is acceptable.

Maryam Monsef, Minister of Democratic Institutions, unveiled the plan this morning. “The new, merit-based appointment process will reduce partisanship in the Senate, improve its capacity to serve Canadians, and help restore public confidence,” Monsef promised, while stressing that the new process still maintains the authority for the Prime Minister to make his recommendations to the Governor General, unimpeded.

The government will set up the Independent Advisory Board on Senate Appointments, which will “provide the Prime Minister with a non-binding shortlist of nominees,” a government background explains. “The Advisory Board will be guided by merit-based criteria in evaluating all candidates.”

Three federal members will staff the board, assisted by two provincial members from whichever province is having its vacancies filled.

That criteria contains the qualifications enumerated in the constitution — that they must be 30 years of age, a citizen of Canada, that they must have $4,000 in property, and be resident in the province or territory for which they are the Senator for — but also adds new categories of eligibility.

The board will be required to vet candidates based on “gender, aboriginal and minority balance,” meaning that “priority consideration” will be given to prospective senators who are ethnically and linguistically diverse, especially Aboriginal applicants — although bilingualism, the government notes, is an asset but not a requirement. The board will also be asked to “demonstrate” that they can think in an independent and nonpartisan manner, that they are knowledgeable about the role and operations of the Senate, and that they are ethically and morally upright.

Finally, the prospective senators “must” demonstrate that they have some experience in some level of government; have a “lengthy and recognized record of service” in their community; and/or been recognized for their leadership or record in their profession or field.

The board will recommend five names per opening.

The new requirements amount to a clear directive as to how the board may select and recommend prospective senators to the Prime Minister, but the question now becomes whether it amounts to an overt constraint on Trudeau’s discretion.

The Liberals maintain it will not.

“Does this process require a constitutional amendment?” Reads a Q&A posted to the government’s website. “No. Under the Constitution, the power to appoint Senators rests with the Governor General. By constitutional convention, the Governor General’s power is exercised on the advice of the Prime Minister. The Independent Advisory Board will be preparing a non-binding short-list for the Prime Minister’s consideration for each vacancy to be filled.”

The previous Harper government had tried its hand at reform, only to have it swatted away by the Supreme Court of Canada.

Harper’s plan would have seen provinces hold consultative elections that would have drawn up lists from which the Prime MInister could draw from, or not, subject to his prerogative.

The top court determined those elections would imbue Senators with a popular mandate, and thus contradict the express purpose of the Senate set out in the constitution.

“[The plan] provides that the Prime Minister ‘must’ consider the names on the lists of elected candidates. It is true that, in theory, prime ministers could ignore the election results and rarely, or indeed never, recommend to the Governor General the winners of the consultative elections. However...we cannot assume that future prime ministers will defeat this purpose by ignoring the results of costly and hard-fought consultative elections,” the Supreme Court ruled.

It concluded: “A legal analysis of the constitutional nature and effects of proposed legislation cannot be premised on the assumption that the legislation will fail to bring about the changes it seeks to achieve.”

That leaves some ambiguity over what degree of constraint is okay. Evidently, holding an election goes too far in tying the prime minister’s hands — but what of the advisory board?

Emmett Macfarlane, associate professor of political science at the University of Waterloo, writes in Policy Options Magazine that crafting a process to empower the Senate is ultimately a good step forward to regaining the body’s legitimacy, but that “a government would likely not be able to formalize this system in law — any attempt to bind future prime ministers to a particular model would count as a change to the ‘method of selecting senators’ and thus require constitutional amendment — but a prime minister should be free to exercise discretion in how he or she selects senators, including striking an informal committee to provide names.”

Paul Daly, associate dean in the Université de Montréal’s faculty of law, put Trudeau’s plans to the test in 2014, assessing them on the two fronts that Harper’s reforms fell apart on — that Harper’s plans did not respect the overall intention of the constitution as a complete document, and that it did not respect the actual mechanisms envisioned by the framers of the constitution.

On those two tests, the substantial and the formal, Trudeau’s plan does not escape without concern.

Daly writes that Trudeau’s reforms “pass the test of substance with flying colours.” The plans, which he sketched out in 2014 before fleshing out more fully during the election campaign, respect the core principles of the Senate, which is to provide ‘sober second thought’ and to underscore the regionalist and minority-minded Parliamentary representation.

“The formal test presents difficulties, however,” Daly writes.

“Even if the committee only presented a shortlist, from which the Prime Minister would be free to make the ultimate choice, his discretion would be somewhat constrained. The committee’s recommendations would shape the entire process.’”

That doesn’t mean Trudeau’s plans are dead in the water, however. He notes that, by neglecting to legislate the advisory board, Trudeau could perhaps defend the idea that the process is purely informal.

“A holistic analysis would approve of Mr. Trudeau’s proposals, because they would further the fundamental features of the Senate, while also respecting the foundational principles of protection of minorities, federalism and democracy by ensuring that criteria are set out to appoint regionally and ethnically diverse Senators in a transparent process,” Daly concludes. “It would be perverse to conclude that such a set of proposals could not be implemented without a constitutional amendment.”

Justin Ling is a regular contributor based in Ottawa.

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