Tuesday, 29 April 2014

What the Court's Reference Re Senate Reform Really Says About Trudeau's Appointments Scheme

While the Senate may be a headache for the government, the Governor General may provide the solution to the third party's perceived appointments problem. Unfortunately, everyone seems to have written off Justin Trudeau's proposed -- albeit vague -- appointments scheme. Writing about the Supreme Court of Canada’s Senate reference, Globe and Mail columnist Lawrence Martin argues that: 
The Trudeau plan, should he come to power, would see him appoint a special non-partisan panel to forward nominations for the Senate. That creates problems on its own. How do you find a credible non-partisan panel? 
The Supreme Court decision adds more woes. As NDP Leader Thomas Mulcair’s office has pointed out, clauses 64 and 65 of the court’s decision appear to require that any new consultative process for Senate selection obtain provincial agreement and constitutional change. If such is the case, Mr. Trudeau has a Stephen Harper-like dilemma – only worse, because he’s already committed to his reform.
There seems to be a broad consensus in the media, and particularly in Parliament, that the Trudeau plan is entirely unworkable and, as Martin claims, the Court’s decision makes it even more improbable. The contrary is actually true. If anything, the Court’s ruling has cleared the way for Trudeau by clearly showing what will not be permissible – elections – and, in doing so, has left the realm of possibility considerably open. I argue that Trudeau’s critics are deliberately misreading the ruling. The Court’s ruling is much more nuanced and leaves the executive with considerable leeway. Finally, contrary to both the NDP and the Conservatives, there is a viable model that can be readily adapted and, surprising, it is a model established by the Conservatives and subsequently demonstrated to work quite well.

The distinction between a consultative election and a panel of advisors is paramount and is fundamental to understand the Court’s judgement. Unfortunately, it appears that – while many can cite what the Court has said – very few have actually bothered to listen. Indeed, the Court has substantially clarified the issue and has essentially placed no barriers in Trudeau’s path (with the notable exception, of course, that he cannot consult the public at large).

Contrary to the NDP claims, a non-partisan consultation process would be entirely constitutional. The NDP contends that Trudeau’s plan for expert consultation would offend two clauses of the Reference re Senate Reform (parts 64 and 65). As has so frequently been demonstrated before, New Democrats have a very problematic grasp of the Constitution (the NDP had been claiming for months, no matter what they are saying now, that outright Senate abolition was both the easiest and best option) and lack a rudimentary ability to decipher judicial decision making. The NDP interpretation only works by entirely divorcing the context of the discussion – ‘elected’ Senators – and thus altering entirely what the Court is saying.

At Paragraph 64 the Court writes:

Our view that the consultative election proposals would amend the Constitution of Canada is supported by the language of Part V. The words employed in Part V are guides to identifying the aspects of our system of government that form part of the protected content of the Constitution. Section 42(1)(b) of the Constitution Act, 1982 provides that the general amending procedure (s. 38(1)) applies to constitutional amendments in relation to “the method of selecting Senators” (“le mode de sélection des sénateurs”). This broad wording covers the implementation of consultative elections, indicating that a constitutional amendment is required and making that amendment subject to the general procedure

Two things need to be clarified. First, the Court is quite specific about why this particular method of selection poses a problem. The Court illustrates [supra para 58, 60-61] that consulting with voters would endow the Senate with a popular legitimacy that it currently lacks. There are ramifications that result. It would potentially alter the balance between the two Houses, a balance that has been long set by convention, but nevertheless strongly set. Despite protestations to the contrary, out of hundreds of bills, very few are ever rejected outright by the upper chamber (the Senate of the 1980s is an anomalous and still relatively restrained). A Senate endowed with a democratic mandate may assume it has legitimacy and thus more frequently assert itself against the Commons given that the lower chamber could no longer retain a monopoly on the ‘democratic’ moniker.

Second, and perhaps more subtle, this affects the ‘method of selecting Senators’ because it would present a bind on the Prime Minister that does not otherwise exist. Consultation is not synonymous with a ‘consultative election’. By establishing elections, the process is fundamentally altered through the introduction of a formal and a democratic element. In contradistinction, the Prime Minister is free to choose those from which he wishes to receive advice on appointments and to establish the criteria (ie. simply substitute party loyalty for some other quality). So long as this remains within the Privy Council Office and/or Prime Ministers’ Office it does not in any way alter prime ministerial prerogative. An informal panel of advisors and a formal election are two beasts entirely. In constitutional interpretation nuance is important and has a profound impact.

At Paragraph 65 the Court writes: 

The words “the method of selecting Senators” include more than the formal appointment of Senators by the Governor General. “[S]ection 42(b) refers to the method of selecting persons for appointment, not the means of appointment”: Whyte, at p. 106 (emphasis in original). By employing this language, the framers of the Constitution Act, 1982 extended the constitutional protection provided by the general amending procedure to the entire process by which Senators are “selected”. The proposed consultative elections would produce lists of candidates, from which prime ministers would be expected to choose when making appointments to the Senate. The compilation of these lists through national or provincial and territorial elections and the Prime Minister’s consideration of them prior to making recommendations to the Governor General would form part of the “method of selecting Senators”. Consequently, the implementation of consultative elections falls within the scope of s. 42(1)(b) and is subject to the general amending procedure, without the provincial right to “opt out”.

Again, the point may seem trivial and little more than taking refuge in semantics, but it is nevertheless a fundamental distinction that what the Court is arguing against here – consultative elections – is entirely different from the kind of proposal the leader of the third party has vaguely proposed to enact. In the latter, the “method” remains constant, its inputs merely change. As noted above, the process remains entirely within the scope of the Prime Ministers, his office and his advisors (a list which remains open, so long as the name does not appear on a ballot). Again, the question is of avoiding direct election. The Court has done nothing, for instance, to prevent the Prime Minister with consulting with the Premier of the originating province (much like he may do when appointing a Lieutenant Governor, also a Prime Ministerial prerogative). As long as the decision remains formally vested in the Prime Minister the process remains unchanged

Once the Prime Minister moves the selection process itself beyond his office or is formally bound in his decision-making process, however, the ball game changes. The power cannot be directly delegated, for instance, to a provincial legislature or to Parliament. To put it in other terms: so long as the advice is tendered privately – as Cabinet confidences and under the purview of the executive alone – the process of selection remains unchanged. Once other governments or the public is brought into play formally, the method changes. In short, the more secret the process, the more we can be sure the process conforms to the Constitution.

The Prime Minister is free to consult and it is a power not circumscribed by the Constitution.
It seems entirely antithetical to our democratic sensibilities that the public should be excluded from the process, yes, but that is entirely the point of how the framers constructed the upper house. As the Court acknowledged: “Appointed Senators would not have a popular mandate — they would not have the expectations and legitimacy that stem from popular election” [para 58]. In short, to paraphrase R. MacGregor Dawson in The Principle of Official Independence: the absolute irresponsibility of the Senate is precisely that which was intended to insulate the chamber and protect its institutional independence. The fact that this mechanism is not particularly adequate for the task does not mean it can simply be overlooked. The Senate was designed to be ‘irresponsible’—that is, accountable to no one – but this is something that needs to altered within the confines of the constitution, a document which cannot be changed by crass populism and wishful thinking.

 Moreover, whether the original framers of 1864-1867 wisely drafted the provisions that bind us or whether or not we should indeed be bound by their world view is entirely beside the point. This basic architecture was reaffirmed by governments representing nine provinces (if you count the federal Liberal’s massive majority in Quebec – all but one seat – the entire country is covered). The simplistic assertion that the Constitution is illegitimate because it lacks ‘popular legitimacy’ is not persuasive and lacks a basic understanding of representative democracy.

Secondly, the status quo was affirmed by the citizens of the country in 1992. In a representative democracy in which the Constitution is an accord between governments, not peoples, the test of constitutional legitimacy is affirmed. Finally, and perhaps most importantly, we are not governed by the constitution we wish we had, but by the constitution we actually have. It is so frequently ignored that the Constitution Act is the “supreme law of Canada” and it is the supreme law, warts and all. The Senate may not be a popular feature (in any sense) of Canadian government, but it is an important part of a federal Parliament and protected by the Constitution. The point of a constitution is to entrench certain principals so as to place them outside continuous popular contestation. Indeed, democracy is about more than the will of a transient majority. It entails respect for the rule of law (including the Constitution) and the protection of minority rights. The populist appeal that a majority trumps all else is a dangerous one.

Finally, beyond the Court’s ruling, there is ample evidence to suggest that the kind of process suggested by Trudeau could be workable. Consider that a wide variety of consultation takes place for, in particular, judicial appointments (this does not mean patronage is eliminated – see Vic Toews – but it also affirms that fact that Prime Ministerial prerogative is not imperiled. The most direct parallel, however, is the “Advisory Committee on Vice-Regal Appointments” which was established by the Prime Minister in 2012. It works to select the Governor General and Lieutenant Governors, includes fairly broad membership and, importantly, respects the appointment process rules as laid out in the Constitution Act. The Prime Minister sets the parameters and is free to accept the recommendations of the panel or reject them. The same process could be introduced for the selection of Senators, all while maintaining the Prime Minister’s prerogative and respecting the Constitution and the judgement of the Court. No amendment is needed nor is wide consultation required. All the Prime Minister needs to do is give the order. It simply requires the will.

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