When news came last week that Prime Minister Justin Trudeau had nominated the novelist David Adams Richards to the Senate for a New Brunswick seat, I was decidedly neutral on the issue of a literary figure taking his place among the Red Chamber.  After all, we've had some great writers and artists do very good work in the Senate over the years.  Other friends of mine from the East Coast had a few more opinions.

"I hope any bills he writes don't make me want to kill myself after reading," one of them wrote over social media, before adding that "He will bring a perspective and empathy to the role that I think is missing in many of those that are appointed."

Fair enough with the depressing nature of his general oeuvre, but what started to make me a little more nervous were interviews that he gave once the announcement was made, particularly with Power & Politics.

It wasn't so much where he talked about the desire to move onto something else after writing some thirty-one books, or the fact that he'd like to become a voice for New Brunswick and in particular the Miramichi region being a voice for the regions is part of the role of the Senate, after all.  But it was some of the more policy-related issues that Richards expressed that made me question.

"For years, I've been saying that there has to be something done to have a kind of inclusion for the First Nations in education," Richards said.  "There is one female surgeon that's a First Nations person in all of Canada that's kind of tragic.  I've always tried to promote that in my work, and that's what I'll promote up there.  Also, the salmon stocks on the Miramachi are quite bad, so hopefully we can do something about that."

To both of these issues, I have to question just what he thinks that a senator is supposed to be able to do.  After all, the primary function of the Senate is as a revising and deliberative body the famous "sober second thought," where issues and legislation are examined through a lens that is less about electoral gain than it is about bigger-picture considerations, as well as how it will impact regions or minorities.  Coming in with a list of pet policies tends to be a bit more problematic because that's less the role of senators.  Sure, they can make recommendations, and they often do in the form of committee studies, which have a well-deserved reputation for being some of the highest quality policy development tools in the country, and have earned the Senate its reputation as being parliament's built-in think tank.

Nevertheless, as much as there is a subtler policy role in the Senate, what he expects to be able to do with a fairly complex file like First Nations education, or inland fisheries, is where I have questions.  It is especially more difficult to have that kind of direct influence as a senator because any Senate Public Bills that they draft can't task the government with spending any money.  Add to that fact, this new cohort being appointed as independents limits some of their policy influence even further.  And in Richards' case, he is expecting to be just that.

"I'm sitting as an independent man," Richards said in the same interview.  "I'll make my own decisions to the best of my ability when I'm in the chamber."

There once was a time where Senators could have a great deal of influence in the party's back rooms, behind the closed doors of national caucus because they are the institutional memory of Parliament, and can steer discussions or policy plans based on their years of experience, which many MPs don't have by virtue of the low incumbency rate of Canadian politics.  These new senators don't get to have that role unless they join the ranks of the Conservatives, which is the only caucus by which that kind of influence can still be exerted.

For the rest, many are coming into the Senate with an expectation that they will have a greater legislative role than is traditional for the Canadian Senate, and because many of these new appointees are activists from the social sciences who feel like they now have a place inside the system to start making changes, which could very well be opening up Pandora's box when it comes to the way in which our bicameral system functions.

This is why my discomfort with the way that the current government has set up their Senate nomination advisory panel, which relies on self-nomination, has become quite acute.  If you have a group of activists for any number of worthy causes selecting themselves to the role, once they get it, they come in with the expectation that they have power and influence that they can start to exercise rather than what we used to see, which was taking their years of experience in the field and applying their perspective to the legislation before them.  And given the additional fact that because senators are no longer in the caucus rooms, we have an explosion of ministers lobbying individual senators to get legislation passed, offering to trade favours for votes, we risk empowering a group of individuals beyond what their ambit should be in our system.  If we keep going down this path, the Senate is very likely to be less of a chamber of sober second thought and of applying different minority lenses to legislation than it will be a chamber of activists negotiating with the government of the day over personal policy goals.  So, while it may very well be that a new senator like Richards will bring a voice for the Miramichi to the Red Chamber, or that he may have a perspective and empathy that others may not have, that he has actual goals in mind that exceed his role does give me serious pause.

Photo Credit: National Post

It's not actually that novel that NDP leadership hopeful Jagmeet Singh has said that he wouldn't run for a seat in the House of Commons right away if he won the party's contest.  The current leader of the Bloc Québécois doesn't have a seat either, and has no plans to resign her provincial seat before the next election.  During the Conservative leadership contest, Kevin O'Leary had no plans to run for a seat anytime soon either (for as serious as his leadership bid actually was).  But these kinds of pronouncements are becoming increasingly commonplace, and we should ask ourselves about what kind of message this is sending about how we value our Parliament.

There used to be a time when you had to be a Parliamentarian to win the leadership.  Up until 1919, to be a party leader meant being an MP or Senator, and yes, we did have two Senators who served as Prime Minister in the years following Sir John A. Macdonald's death.  But regardless of their not being MPs at the time, they still had seats in Parliament and were part of the parliamentary caucus.  But it was in 1919 that things started to change in Canada, when the Liberal Party decided to open up the contest to outsiders, and to let the party membership hold a delegated convention to choose that leader William Lyon Mackenzie King, who had lost his seat in the previous two elections and didn't have one when selected.

The practice that followed for the next few decades was that when a party leader was chosen that didn't have a seat was that someone in a "safe seat" would resign and then the new leader would run in a by-election.  Usually that works, but not always just ask John Tory about when he lost a by-election in 2009 after having lost his bid to displace Kathleen Wynne in Don Valley West in the 2008 Ontario election.  But while the safe seat gambit became the compromise to get the leader into Parliament as soon as possible, this was again broken in 1984 when John Turner became prime minister without holding a seat, and didn't plan to immediately run in a by-election.  Instead, nine days after he was sworn in (after Pierre Elliot Trudeau stepped down earlier than planned, which was in exchange for Turner agreeing to a list of patronage appointments that Trudeau had planned to make), Turner called a general election and was soundly defeated, though he did manage to win his seat and stayed on as leader of the opposition for another election.

Why this history matters is because of the ways in which it has contributed to ways in which we have slowly been divorcing party leadership from Parliament in Canada.  The tradition of caucus choosing the leader has remained in the UK until just recently, where their attempts to turn that selection power over to the party membership has wound up with problematic leaders like Jeremy Corbyn with Labour, who has managed to alienate his caucus on a continual basis, but they can't oust him because of Corbyn's dedicated activist base a major problem when the basis of our shared Westminster system is that leaders must have confidence, and he is a leader who has not managed it.  Australia still largely has the caucus selection system, but they too have been trying to move to a more Canadian system after successive back-and-forth spills of their prime ministers over the past decade, and some people desired a process that would garner more stability, forgetting that the rule of unintended consequences for this has long played out in Canada.

By attempting to "democratize" the leadership selection process in this country, we inadvertently created party leaders who no longer felt bound to respect the wishes of their caucus.  Mackenzie King is reputed to have told his caucus during a revolt over a scandal that they had not selected him, and therefore they could not remove him like they normally would.  It broke the accountability that leaders feel toward their caucuses and with the later addition of new rules that mandated party leaders sign off on nomination forms (for perfectly benign reasons at the time), it gave those leaders another tool to keep their members in line.

Leadership contests have become increasingly like presidential primaries in this country, and we're now to the point where we are demanding that leaders produce policy rather than let the party grassroots develop it for themselves.  By selecting leaders who are not in caucus and who don't feel the need to get a seat as soon as possible, we are slowly but surely formalizing this quasi-presidentialization of our political system.  At the same time, it diminishes the roles of MPs to becoming the Greek chorus of that leader's pronouncements, under penalty that they won't have their nomination forms signed again, and it undermines the role of the party grassroots when it comes to determining policy.

When a leadership candidate says that their time is better spent crossing the country to "engage with Canadians" rather than actually doing the job of being a parliamentarian and holding the government to account, it continues the marginalization of our parliament.  And we've even seen this happen when new leaders already have a seat witness when Justin Trudeau was selected as Liberal Party leader, he only showed up in Question Period on days that Stephen Harper did (read: one day a week, maybe two if you were lucky) and spent the rest of the time doing that party outreach.  You could argue that it helped to win him the election by energizing his base, but it also gave Canadians little sense of how he would comport himself in the House of Commons in a leadership position not that performance in the Commons helped Thomas Mulcair, mind you.  Nevertheless, if the signal that a leader sends by not even bothering to get a seat or to show up when they do is that parliament doesn't matter, then we might as well start replacing our MPs with drones that can read their canned speeches into the record and vote as ordered to.

But if we do value parliament, then maybe we need to send a signal to the leaders that it matters that they have a seat, that they show up, that they do their jobs because democracy matters, and that Canada doesn't have a presidential system.

One might suspect that when Senator Mike Duffy and his lawyer came up with the $7.8 million figure by which they planned to sue the Senate, the Government, and the RMCP, that they hoped it might scare the government into looking to settle.  After all, if they could get even half of that, they could reasonably claim that it would be a bargain to taxpayers that would save the years and millions of more dollars of litigation, but that would be a flawed calculation.  Rather, they can expect the Senate in particular to put up a fight because it's not just an issue about money it's the rights and privileges of Parliament itself that are at stake.

It cannot be understated that with this case, the Senate's existence as a self-governing body of parliament are being attacked, with yet another demand that the courts step in.  It's not the only one currently out there the NDP's attempt to take the House of Commons to court over the satellite offices issue remains in the air as well, and they haven't yet been told by the Federal Court that this is an issue of parliamentary privilege and they should go drop on their heads.  Likewise, Duffy and his lawyer are going to tempt those same fates, hoping that the courts will give them a sympathetic ear, the rights and privileges of parliament be damned.

Let's unpack some of these issues.  To start with, Duffy's suspension without pay was unrelated to his criminal trial, and happened before charges were even laid.  That makes the use of Justice Vaillancourt's ruling something of a red herring in Duffy's attempt to claim his being wronged.  The Senate was interested in protecting its reputation, and given the media attention and the obvious lapses in judgment when it came to Duffy's expenses, many of which did in fact contradict the established rules (regardless of Vaillancourt's opinion) were what prompted the Senate to exercise its ability to censure its own members.  Likewise, when they chose to claw back further expenses that were uncovered as part of the trial, it was under their self-governing abilities to do so.  They don't need a court's permission because in essence, Parliament is a court, and it's important that Parliament has the ability to set its own rules and to exercise them.  Remember that the separation of powers is a Thing, and crying to the courts is an invitation to trample on that separation.

It's also not really true that Duffy was denied all due process at the time of his suspension.  We can't deny that the mechanisms in place were imperfect (and in fact have been improved since witness the more rigorous process followed with now-former Senator Don Meredith's harassment allegations).  We also can't deny that the suspension motions were bullied through out of a sense of political expediency, but Duffy did get his right of reply to the Senate, and he made his case.  (It should also be noted that Senator Pamela Wallin was one who was not afforded that chance when the suspension motion was passed, and if anyone has a bone to pick with this process, it would be her).  Furthermore, Duffy had a later opportunity to have his case and the repayment demands reviewed by former Supreme Court Justice Ian Binnie with the appeal process that the Senate set up he declined to do so.

And this is where the Senate will start to want to dig in its heels, because there is an acute awareness that any backing down and diminution of their privileges will set a dangerous precedent going forward.  The Meredith situation is exactly an illustration of why privilege matters if they don't defend them, then they can't exercise them when necessary, and it is very necessary for them to have the ability to do things like oust one of their own when they break the established rules.  This is especially important because the Senate is a body that operates on tenure, where its members can't be removed by ordinary means as a form of protecting their institutional independence; enforcing those rules up to the point of expulsion has to come from within, which is why protecting their privileges matters.

Backing down with Duffy's lawsuit and demands for millions would not only set a bad precedent, it would limit their ability to censure the next senator who abuses their office budget, or their position and authority as either they found both Duffy and Meredith to have done.  Add to that, backing down would be a public relations nightmare for the Senate, which has been working to rebuild the trust of Canadians following the slow drip of spending "scandals," because it would mean that someone like Duffy would be able to get away with it, and furthermore, it would paint their disciplinary tools as being illegitimate, which is a very big problem for their ability to use them.  Add to that, saying that the decisions that parliament makes when it comes to its own governance would be subject to judicial review further strains the issue of separation of powers, which is a path that the Senate won't want to go down.

But, this having been said, I do see one very big potential danger down the road, which is the fact that there are some ten new appointments coming, and they'll all be independents, per the prime minister's promise.  Ten new members to the Independent Senators Group will give them the plurality in the chamber, and possible control over the Internal Economy Committee.  And it's possible that some of these members of the ISG will be more sympathetic to Duffy, who is now a member of the ISG, and that these newer senators won't be as keenly aware of the problems around precedent and privilege that they may be more willing to settle.  I think that would be a very big mistake, which would cause no end of problems down the road.  Let's hope that sanity prevails, and that Duffy's attempt to circumvent parliamentary privilege goes down in flames.

Photo Credit: CBC News