John Ivison: More party hacks to the Senate as Trudeau renounces Red Chamber reform

The Senate expenses affair in the run-up to the 2015 election was a very Canadian scandal: there was no sex and no-one was found guilty of doing anything wrong.

Former senator Mike Duffy was charged with 31 offences by the RCMP over expense claims he made but was exonerated by the Ontario Superior Court.

Charges against two other senators over allegedly questionable expenses were subsequently dropped.

However, the Senate’s reputation as an ermine-lined soft landing for party hacks was established and the Red Chamber’s credibility was further impaired by a broader investigation by then auditor general, Michael Ferguson, who found 30 senators had claimed expenses that were not in accordance with Senate rules.

Stephen Harper’s government had already tried to reform the Senate by introducing term limits for senators but had been foiled by a Supreme Court ruling that said Ottawa could not act without provincial consent.

As a result, Harper all but washed his hands of the Senate, leaving 22 vacancies in the upper house by the time he left office in 2015.

Justin Trudeau’s response to the discredited Senate’s lack of accountability and transparency had more to commend it — at least on paper.

Without warning on the morning of Jan. 29, 2014, Trudeau gathered all 32 Liberal senators — many of whom were friends and contemporaries of his father — and told them they were out, expelled from the Liberal caucus. At the same time, he said that if elected prime minister, he would inaugurate a non-partisan appointment process.

In the run-up to the 2015 election, he unveiled a 32-point plan to “restore democracy in Canada,” that included introducing electoral reform (2015 would be the last election under the first-past-the-post system), overhauling the access-to-information regime and creating a nonpartisan Senate.

In government, he instituted a Senate advisory board to nominate new senators that has since made 86 “independent” appointments to the 105-seat chamber.

The dynamics of the Red Chamber were altered irrevocably from the adversarial structure of government and opposition typical of Westminster institutions. There remains a small core of Conservatives and three other loose parliamentary groups that may or may not vote together.

Critics have long made the claim that the new senators are Liberal in all but name. As former Harper deputy chief of staff Howard Anglin and Cardus co-founder Ray Pennings wrote recently: “Without casting aspersions on the integrity of any senator, Trudeau’s appointments are not representative of a cross-section of ‘independent’ political perspectives. They are a relatively cohesive ideological conformity that is mostly aligned with the current Liberal party.”

Yet, at least initially, you didn’t need to be a card-carrying party member to be considered, as now seems to be the case for the majority of new senators.

There have been occasions over the past eight-and-a-half years when the independent Senate has bitten back. In 2017, it refused to pass the government’s budget as written, with some senators unhappy that the Trudeau Liberals had stuffed the plan with legislation for its new infrastructure bank and included an escalator tax on beer that would have seen prices rise in perpetuity.

The Liberal-dominated House vetoed Senate amendments and the senators were forced to back down, but not before reiterating their powers under the Constitution to amend legislation.

The problem is that the Senate’s attempts to assert the independence to which Trudeau played lip service has encouraged the prime minister to make a mockery of his promise to “restore democracy.”

This summer has seen the appointment of five new senators: Victor Boudreau in New Brunswick, who is a former interim leader of the province’s Liberal party; Tracy Muggli in Saskatchewan, who is a former federal Liberal candidate; Charles Adler in Manitoba, a former conservative broadcaster who professes his dislike of Pierre Poilievre; and last weekend in Alberta, Daryl Fridhandler, a corporate lawyer and businessman who was once a regional fundraiser for the federal Liberals, and Kristopher Wells, a university professor who has been a vocal critic of provincial Premier Danielle Smith’s gender policies.

The last two are perhaps the most egregious appointments, given that Alberta held Senate elections in 2021 and chose three Conservatives, with one candidate, Pam Davidson, garnering 382,000 votes.

The government’s fig leaf response is that all new senators were recommended by an advisory board chaired by former University of Ottawa chancellor Huguette Labelle. But the appointments are ultimately made by the prime minister. We have no idea how many recommendations he passed over before agreeing to candidates who fit his partisan demands.

Milton Friedman’s assertion that it is a great mistake to judge policies by their intentions, rather than their results, is a criticism that could be applied to this government in almost every circumstance, but it is particularly apt in this case.

If Trudeau had in good faith named a bipartisan advisory board and chosen senators who were representative of a cross section of Canadian society, he could have fudged an acceptable compromise.

But he seems determined to stack the Senate with ideological fellow travellers, with the intent of frustrating an incoming Conservative government.

Anglin and Pennings were concerned that this could foreshadow a constitutional crisis, where senators breach the convention that they can oppose the government “vocally, but not politically.”

That seems to me to be an unlikely development. Senators know their legitimacy depends on them backing down.

Canada’s constitution is judged the world’s most difficult democratic constitution to change by formal amendment: major reforms are virtually impossible and killing the Senate requires unanimous consent of all the provinces.

But if a “Liberal” Senate tried to impede a Conservative-dominated House, Poilievre could go to the people and call a Senate-abolition referendum, as the late senator Hugh Segal proposed twice when he served in the Red Chamber.

If Canadians were suitably outraged, a vote of 50 per cent plus one in favour of abolition in every province, if unlikely, may not be an impossible outcome.

There remain four vacancies in the Senate. If there are more overtly partisan appointments, the Senate will be heading back to the disgraceful days when, at roll call, senators don’t know whether to shout “present” or “not guilty.”

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