Time to break out the Dame Shirley Bassey, because it’s all starting to feel like a little bit of history repeating. The looming retirements of both Senators Romeo Dallaire and Hugh Segal are highlighting the growing number of vacancies in the Upper Chamber, and the unwillingness of the Prime Minister to do his constitutionally mandated duty to fill those seats.
Prime Ministers don’t actually have a choice when it comes to making Senate appointments or not, no matter how many wags in the commentariat or opposition leaders insist that the PM should just cease making them and letting the chamber starve for membership. There of course are more than a couple of stumbling blocks with this absurd and wrong-headed notion, the first of which is the constitution itself. Section 24 spells it out:
The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.
Take note of the term “shall” – in legal parlance, that is an imperative. The Prime Minister doesn’t have a choice but to advise the Governor General on appointments. When people who think they’re being clever note that there is no time frame written into that section, but it’s because it was unconscionable that those seats would remain vacant, just as it’s unconscionable that an empty seat in the Commons should remain that way for any length of time, as it denies people their representation. And yes, the Senate is a representative body. To date, however, it hasn’t been necessary to take a Prime Minister to court for violating Section 24, but there may yet be a first time for it to happen.
The other problem with this notion that a Prime Minister can simply not appoint senators is that it would not only make the legislative process grind to a halt, given that all legislation still has to pass through the Senate, but that it concentrates the Senate’s veto power into a shrinking pool. The official quorum of the Senate is 15 members. Does anybody really think that giving fifteen people an absolute veto on legislation is a good idea? And because Senators have institutional independence and protection from being unceremoniously dismissed – the mechanism by which they are empowered to speak truth to power and to hold governments to account – those fifteen would become an unaccountable powerhouse.
The constitution aside, the other problem with Harper sulking in his office rather than making these appointments is that it sets up to repeat the very same problems that happened in 2009, with his major glut of appointments. Recall that prior to the coalition crisis of 2008, Harper refused to appoint any Senators that weren’t first “elected” as Alberta does (Michael Fortier excepted), and the number of vacancies grew to 18. When the thought of a coalition coming to power and making their own appointments, Harper panicked and filled all 18 seats without enough time to properly vet them. Witness the appointments of Mike Duffy, Pamela Wallin and Patrick Brazeau, each of whom had red flags in their prior history that should have been picked up by a cursory background check, like the kinds that they put would-be candidates through as part of a greenlighting process for a nomination race. Not so for senators, apparently.
The real crisis in the Senate that Harper is setting up yet again is the shock to its system from another mass appointment. With the two coming retirements this month, the Senate will have eleven vacant seats. That’s ten percent of the chamber that, if filled at once, will place an undue strain on an institution that is built to absorb two or three new members at a time. With the 2009 glut, that one-fifth turnover in the chamber meant that these new senators were put under more rigid controls by the Senate leadership, and in turn the PMO – something that never should have happened. It can take a Senator up to three years to get fully up to speed as to their jobs and what it all entails, which is why a mass appointment makes it harder for them to do their jobs, learn their responsibilities, and maintain their independence. And yet, Harper is building for a repeat of this problem.
It’s time for Harper to stop behaving like a petulant child, face up to the fact that he made some bad appointments, and do what he needs to in order to preserve the functioning institutions of parliament that he is sworn to uphold. How does he avoid the same mistakes as he did with his previous appointments, while respecting the rules that the Supreme Court clarified with their reference decision? It’s not that difficult. He could certainly continue to appoint based on the status quo, but the public trust in his judgement has now gone, and unless he comes up with a list of eminent Canadians that have little in the way of ties to the party, he’s going to need to find a more transparent process.
An outside appointment process is certainly viable, and he has a model readily available in terms of the vice-regal appointment committee that he established and made permanent. Nothing in that model contravenes the constitutional requirements that Senators be selected and not elected. If he chooses from a short list, it means he stays within the accountability framework of our system of responsible government. Alternately, he could publish a list of criteria by which he will appoint senators on the basis of, thus again providing a means by which he can be held to account. Again, it fits within the established parameters for appointment.
Appointments need to be made. The longer Harper holds off, the greater the problem becomes, and the last thing the Senate needs is another crisis of his creation.
UPDATE: Shortly after publication, Conservative Senator JoAnne Buth gave notice of her own early resignation, which will mean that there will be twelve vacant seats by summer.
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