Histrionics in the Senate and the faltering PMO

John Crosbie
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Part 1 in a two-part series

In my June 15 column, I offered  thoughts on any controversy that might involve the Senate, or at least some senators — which may indicate that I was psychic in anticipating recent events in the red chamber.

The controversy raging over the last several weeks involves three senators — Pamela Wallin, Mike Duffy and Patrick Brazeau. Frankly, it shows that the appointment of senators has to be given much more thought and consideration by the prime minister and his office, since the appointment process has certainly not been handled adequately.

It’s obvious from recent events that the current way senators are appointed by the prime minister — with the assistance of the PMO — isn’t working, since obviously the three suspended senators apparently believed they were entitled, because of their appointments, to something other than undertaking hard work and being diligent in the activities of the Senate.

This controversy has made it obvious that the problems were caused by the fact that, in recent years, appointments to the Senate have not been as carefully thought out as they should have been.

The  controversy also shows that the Senate is not only valuable as a venue for sober second thought and excellent committee work, but valuable, as well, for encouraging independent thinking and unfettered debate, which we’ve seen this week.

One reform needed immediately is change in the way the prime minister decides who should be appointed to the Senate.

With respect to judicial appointments, there’s a process in place where the minister of justice appoints committees in each province and for the country as a whole, to which lawyers who are interested in becoming judges apply. They communicate their interest and provide information on what they’ve done during their careers so that the members of the committee can decide whether they can recommend them as people qualified to be judges.

With this system, an impartial committee of qualified people makes recommendations to the justice minister or — if such a system was adopted for the Senate, it would be to the prime minister, advising him who they consider, of those interested, to be qualified to be appointed to the Senate because of their previous actions, activities and character.

They would report their recommendations for the Senate, and the prime minister would accept their opinion in making appointments.

The Senate, and the great majority of current senators, are diligent and do excellent work on Senate committees and in Senate debates.

I believe political experience is an essential requisite to be appointed to the Senate, since it is important for senators to have experience in representing people by having been elected to municipalities or provincial legislatures or as MPs.

Naturally, only people whose past careers have shown they are likely to do an honest and sincere day’s work should be appointed, and if they have represented people before, even better.

In 1997, after I left active politics, I wrote a political autobiography entitled “No Holds Barred” which described my life in politics up to that time.

In one section, I wrote about earlier in my career, in 1984, when I was appointed as minister of justice. I served in that department for 22 months, until June 1986. At that time, the Senate was dominated by a large majority of Liberal senators — holding 72 of the 104 seats, with just 25 Tories and several independents. The Liberals used their majority to delay all legislation sent before them.

In May 1985, I introduced a resolution to reform the Senate by amending the Constitution of Canada so that money bills and important legislation could not, any longer, be delayed indefinitely by the Senate when legislation went there from the Commons. The Senate can delay constitutional amendments for 180 days, but otherwise cannot defeat such legislation.

Today, some people are suggesting the Senate be abolished, but I disagree.

Nor do I favour  other wacky notions such as a “Triple-E Senate,” where all members of the Senate would be elected, with equal representation from each province, which is supposed to make it effective and give it powers equal to that of the Commons.

It was the clear advice of  Department of Justice professionals when I was their minister that an amendment to the Constitution required the approval of the House of Commons and seven provinces, representing at least 50 per cent of the population of Canada, meaning that the seven governments of those seven provinces would have to approve any Constitutional amendments.

With many other issues to be dealt with at that time, we did not proceed with the attempt to secure a constitutional amendment.

The Harper government has applied to the Supreme Court of Canada for advice on constitutional amendments, and the matter will likely be heard this year and a decision brought down next year.

Observers of our political scene have doubtless noted that on

Oct. 25, the Quebec Court of Appeal released an opinion on a reference by the former Charest government of Quebec that the federal government had no right, under Bill C-7, to create Senate elections and set term limits without the approval of seven provinces.

The Court of Appeal of Quebec, in a strong ruling, wrote, “There is no doubt that (the Senate) was a fundamental component of the federal compromise in 1867.”

The court stated that, “It follows from the principle of supremacy of the Constitution that political actors must comply with its text and its spirit. They cannot circumvent it on the pretext that the constitutional amending process is complex or demanding.”

It is clear from this ruling that “To reform the Senate needs approval of at least seven provinces holding half of the country’s population.”

In my view, the Supreme Court of Canada will come to the same conclusions as the Court of Appeal of Quebec, but this remains to be seen.

Still, I doubt the advice I was given by the Department of Justice when I was the minister has changed since.

My opinion certainly remains unchanged.  

Next week: What makes

the Senate worthwhile

John Crosbie welcomes your feedback

by email at telegram@thetelegram.com.

Organizations: Department of Justice, Supreme Court of Canada, House of Commons Quebec Court

Geographic location: Quebec, Canada

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