The Quest for Senate Legitimacy: Next Steps Towards an Independent Upper House.

• Author: Woo, Yuen Pau

With more than 80 per cent of its members sitting outside of partisan caucuses, the makeup of Canada's Senate is unlike anything in its history. Reflecting on his experience as Facilitator of the Independent Senators Group, the author takes stock of how the Upper Chamber has transformed since changes in the appointment process were introduced in 2016. Using a landmark article written by two distinguished former senators as a jumping off point, the author reviews recent changes in the Senate and suggests other potential reforms that could help alter the negative perceptions of the institution many Canadians still hold. He stresses that popularity of the new appointment process in and of itself will not be enough to convince the public that the Senate should be valued as a pillar of Canadian democracy.

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Seven years after the introduction of a new process for the appointment of senators, the makeup of Canada's Upper House is unlike anything it has seen in over 150 years. Before the first set of seven senators appointed as non-partisan members in the Spring of 2016, there were just 13 senators sitting as independent members, accounting for 16 per cent of the total membership. By March 2023, non-partisan senators accounted for 83 per cent of the membership. The 74 independent senators belong to one of three parliamentary groups that are not associated with a political party or sit as non-affiliated members, and have no formal links to partisan caucuses in the House of Commons. (1) The only remaining group that is explicitly partisan is the Senate Conservatives, but their numbers have dwindled from 42 in March 2016 to just 14 in March 2023. The move to a more independent Senate is now entrenched.

A change in the complexion of Senate members, however, does not guarantee the success of the reforms that Justin Trudeau heralded with the expulsion of Liberal senators from his caucus in 2014. Even though the appointment of non-partisan senators is arguably the most profound set of reforms to the Upper House in its history, they are but the first step in Trudeau's longer-term goals for the reforms" ... to restore public trust in the Senate and move towards a less partisan and more independent Senate." In changing the appointments process alone, the Prime Minister has put the onus for the larger challenge of raising the performance, effectiveness, and credibility of the Upper Chamber on the Senate itself. A 2021 Nanos survey found that while 76 per cent of Canadians agree with the new merit-based appointment process and only three per cent want to return to the previous model of partisan appointments, the majority of Canadians continue to have a poor opinion of the Senate as a whole. (2)

The contrast between resounding approval of the process for appointing senators and continued dissatisfaction with the institution poses a unique challenge for today's Senate: How do we parlay the widespread support for appointment of independent senators into greater support for the institution?

It would be wishful thinking to assume that public favour towards the Senate will inevitably turn more positive because of the composition of its membership. On the contrary, it is likely that as the novelty of the appointment process wears off, a deep-seated antipathy towards the Upper House--rooted in longstanding questions about its legitimacy--will dominate public opinion. This will be the case even if 100 per cent of senators are non-partisan. (3)

A Historic Opportunity

This article discusses how the Senate, taking advantage of its newly reformed membership and building on the impetus of recent modernization efforts, can address the central issue of legitimacy without constitutional change. It is based on the idea that the 2016 reforms introduced by Prime Minister Trudeau were necessary but not sufficient to repair the damage to the Senate's reputation brought about by the expenses scandals of previous years. Furthermore, I suggest the intent of those reforms was to set in train other changes that would improve the structure and functioning of the Upper House, and by extension, its legitimacy with the Canadian public.

The starting point for this article is A House Undivided: Making Senate Independence Work, (4) the landmark paper published by the Public Policy Forum on the 2016 Senate reforms and its implications for the Upper House. Authors Michael Kirby and Hugh Segal, two distinguished former senators who belonged to the Liberal and Conservative caucuses, respectively, assert:

There is nothing in the altered appointments process introduced last January that automatically assures a positive outcome for an independent Senate. Nor is there anything that automatically condemns it to failure. Success will depend on the wisdom and flexibility of the men and women who have been called upon to serve in the Senate.... Today's senators have an historic opportunity to lift a weakened institution from its torpor and demonstrate its value to good governance in Canada. I offer this article in the spirit of grasping the "historic opportunity" that is before the Senate. Senators Kirby and Segal were astute, even prescient, in their observations about the reforms that had only just taken effect at the time of their writing. In this article, I offer my first-hand observations as a member of Senate leadership from 2017-2021 to assess their proposals, as well as to offer suggestions of my own. These points are summarized under five headings, broadly corresponding to the main recommendations offered by the two former senators.

Regional Representation

From its inception, the logic of the Senate has been based on equal regional representation. The bargain of equal numbers of senators from each of the regions that made Confederation possible provides a certain stability and predictability for the Upper House. But, it is also a perennial source of discontent for regions that, over 150 years of demographic change, are severely underrepresented relative to their population. (5)

As Kirby and Segal point out, the high bar set out in the constitution and confirmed in the 2014 Supreme Court reference (6) means there is little near-term prospect for changing the regional makeup of the Senate. They call for regional "caucuses" to replace partisan groups to manage the task of assigning committee seats to senators and other routine functions.

Even though few sitting senators would disagree with the Kirby/Segal assertion that "the regional factor is fundamental to the Senate's founding purpose," the idea of organizing themselves along regional lines has not had much traction.

Regional identity is important for all senators, but not important enough to constitute a basis for senators from a given region to band together as a recognized parliamentary group. The Canadian Senators Group, for example, was formed in 2021 as a collective of senators who explicitly prioritize advocacy for regional interests, but who hail from different regions. Senators from the same region who belong to different groups have periodically come together on an ad hoc basis to work on issues that affect them collectively. For example, Atlantic Canadian senators successfully caucused against a provision in a 2018 bill which would have allowed a rail provider to reduce service in the region. (7) On the whole, however, it is rare that senators from a given region band together across groups to oppose or lobby for a position that is not generally supported by most other members.

The underlying reason for lack of take-up on the Kirby/Segal proposal is that senators in general prioritize common interests over regional comradeship. This has been true for both partisan caucuses and non-partisan groups. Members of the Independent Senators Group (ISG), for example, did not band together solely for the purpose of sorting out committee seats and other administrative functions, but to allow for active collaboration and exchange on legislation, committee studies, and other substantive activities of the Upper House--short of voting as a bloc. The Progressive Senators Group (PSG), in turn, identifies as a group of "like-minded senators united by a common set of views and a philosophy grounded in the values of liberty and...