An April Nanos poll showed that the percentage of Canadians who had an unfavourable impression of the Senate has declined from 65 per cent in 2016 to 51 per cent.Adrian Wyld/The Canadian Press
Justin Trudeau’s latest Senate appointments demonstrate both the strengths and weaknesses of the Prime Minister’s purportedly non-partisan approach.
On the downside, he has failed to make the appointment process truly non-partisan. Though his Senate picks sit as independents, most are progressives who support his government’s agenda.
On the upside, the Senate has been working well on Mr. Trudeau’s watch. Some conservatives fear a Senate filled with independent progressives may frustrate Pierre Poilievre’s agenda, should the Conservative leader become prime minister. But these fears are based more on supposition than evidence.
Let’s look first at the latest appointments, both from Alberta. Daryl Fridhandler is a corporate lawyer with a background as a fundraiser for the Liberal Party. Appointing party bagmen is what Mr. Trudeau had promised not to do. Disappointing.
Kristopher Wells is an academic who studies sexual and gender issues at MacEwan University. He is a strong proponent of the rights of LGBTQ youth. A sound choice.
Danielle Smith insists that Mr. Trudeau should have appointed elected senators-in-waiting. But Mr. Trudeau doesn’t make placating the Alberta Premier a top priority.
On the whole, the Senate has been doing a good job since Mr. Trudeau came up with the reformed appointment process. The Library of Parliament tells me that while Stephen Harper was prime minister, the Senate amended 14 bills sent from the House. Since Mr. Trudeau became Prime Minister, it has amended 39.
An April Nanos poll showed that the percentage of Canadians who had an unfavourable impression of the Senate has declined from 65 per cent in 2016 to 51 per cent. Encouraging, though still not great.
(The phone and online survey of 1,069 adult Canadians, conducted March 31 to April 1, has a margin of error of plus or minus three percentage points, 19 times out of 20.)
If the process put in place by Mr. Trudeau were to continue, a Conservative prime minister might appoint independent senators who are conservative in their outlook, though the Tories appear inclined to go back to the original, openly partisan approach.
Writing in the Hub earlier this year, Howard Anglin and Ray Pennings warned that a Senate full of progressive independents might be tempted to block Pierre Poilievre’s agenda if the Conservative Leader becomes prime minister.
“What happens when legislation from a future Conservative government runs into a senator’s strong ideological commitments?” they asked. “Is there an expectation that senators with deeply held convictions will pass legislation they believe is wrong?”
These are fair questions, but there is no evidence as yet that the Trudeau-appointed senators would be willing to defy the entrenched precedents of the Westminster system.
Under that system, the Senate may send legislation back to the House with suggested amendments, but it must defer to the will of the House in the end.
The Senate has, on exceedingly rare and controversial occasions, rejected a bill completely. The most famous occurred in 1988, when a Liberal-dominated Senate refused to pass Brian Mulroney’s free-trade agreement with the United States until an election was held on the issue. The Progressive Conservative prime minister won that election, then resubmitted the legislation, which the Senate passed.
This represents an example of what is known as the Salisbury convention: An unelected upper house, such as the British House of Lords or the Canadian Senate, may not veto legislation that a governing party campaigned on.
So if a Conservative government sent the Senate a bill dismantling the English-language arm of the Canadian Broadcasting Corporation, as Mr. Poilievre has promised to do, the Senate would be obliged to pass it.
Peter Harder, who was the Liberal government’s representative in the Senate from 2016 to 2019, has declared the Senate should not pass any legislation that includes invoking the Constitution’s notwithstanding clause.
But Mr. Harder knows that if Mr. Poilievre promises in an election campaign to use the clause to immunize his tough-on-crime agenda from judicial review, the Senate will have to defer.
People have grappled with the Senate since the first day of Confederation. Mr. Trudeau made real progress in making it more effective and responsible. His successor should try to keep moving things forward, rather than going back.