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Part II Institutions and Constitutional Change, B The Parliamentary System, Ch.8 Political Institutions in Canada in a New Era

Lori Turnbull

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 October 2020

(p. 173) Chapter 8  Political Institutions in Canada in a New Era

1.  Introduction

Canada has a Westminster system of parliamentary government, in which the executive and legislative branches are fused together into a single Parliament. The Prime Minister and Cabinet make up the “active Executive” and the elected Members of Parliament (MPs) study, debate, amend, and vote on legislation in the House of Commons. For a bill to become law, it must pass through the House of Commons and the Senate in identical form. Though legislation can be introduced in either chamber, it is normally the case that bills are introduced by a Minister in the lower house.1

Responsible government is the set of constitutional conventions that make Canada’s parliamentary system a democracy. In order to govern legitimately, a government needs the confidence of a majority of MPs in the House of Commons. Though there is no law that spells out exactly how to measure confidence, or whether and when it has been lost, practitioners and experts tend to agree that a Speech from the Throne and a budget bill are always treated as “confidence votes.” Constitutional convention holds that, if a government were unable to secure the support of a majority of MPs on a confidence vote, it must either resign or seek the dissolution of the House, which would trigger a general election. However, as Don Desserud2 and Andrew Heard3 have argued, it is not always (p. 174) easy to determine whether confidence has been won or lost. Because the confidence convention is just that—a convention—it is binding in a political rather than a legal sense. In the end, it is the Prime Minister who makes a political determination as to whether the government holds the confidence of the House. Aucoin, Jarvis, and Turnbull4 have argued that the lack of clarity around conventions, and their existence as political norms rather than enforceable legal rules, contributes to the excessive concentration of power in the hands of the Prime Minister. Simply put, the constitutional conventions that provide checks on the power of the Executive can be ignored easily, and so the Constitution becomes whatever the Prime Minister can get away with.

The theory of responsible government suggests that the balance of power rests with the legislative branch rather than the Executive. After all, the legislature has the right to defeat a government and replace it with another, at any time. However, in practice, power is heavily concentrated in the hands of the Prime Minister and a number of close advisors. The major reason for this reversal in the logic of responsible government is party discipline. Canadian politics is very much affected by party discipline, even in comparison to other Westminster systems. The expectation of complete solidarity among caucus members in political parties further consolidates the balance of power in favour of the political Executive because a Prime Minister is able to count on the support of every caucus member when there is a vote on government legislation. In majority government situations, a loss of confidence is virtually impossible.

Party leaders, and Prime Ministers especially, are able to command the allegiance of MPs through the implementation of a “carrot and stick” approach. Loyal MPs are rewarded with leadership positions within the party, including party whip and House leader, while rogues can be punished with uninspiring committee assignments, disappointing office space, or even expulsion from caucus. The Prime Minister has many, many “carrots” at his disposal, the most sought-after of which is Cabinet membership. The Prime Minister’s power of appointment is perhaps the most important tool at his disposal to maintain discipline within his caucus and to affect the complexion of political institutions writ large. By virtue of the Prime Minister’s exercise of the Crown’s prerogative power to appoint, the Prime Minister appoints Senators, judges in provincial and federal courts, Supreme Court justices, Governors General and lieutenant governors, and, of course, Cabinet ministers.

The concentration-of-power phenomenon has been documented and explored by a number of academics, including Donald Savoie and Aucoin, Jarvis, and Turnbull. Westminster systems, by nature, tend to concentrate power in a strong Executive, which is then held to account by the legislative branch. Parliament, then, is not a lawmaking chamber but a confidence chamber; its primary function is to make and remake governments. This is in contrast to a congressional system such as the one in the United States, where the primary intent of the institutional design is to avoid the concentration (p. 175) of power and the corruption that could result. So, instead of fusing the executive and legislative branches as we do in Canada, the American Constitution clearly enumerates the specific responsibilities and powers of the legislative and executive branches so that neither one can overrule the other.

All of this to say is that, in parliamentary systems, the concentration of power is expected and even healthy—at least, to a certain degree. A strong Executive is able to govern efficiently and effectively and, when something goes wrong, the lines of accountability and responsibility are clear. However, if power is accumulated in the executive branch to the point that balance of power between the executive and legislative branches is upset, the system does not operate as it should. Responsible government presupposes a strong Executive, but it requires a functional legislative branch as well.

The general election in October 2015 saw the Liberal Party of Canada form a majority government under the leadership of Justin Trudeau, the son of former prime minister Pierre Elliott Trudeau. A significant element in the Liberals’ campaign platform was democratic reform and, under this umbrella, they pledged to take a number of measures designed to facilitate a more equitable balance of power between the executive and legislative branches. These proposals include: an empowered, gender-equal Cabinet; a new approach to the selection of committee chairs; limitations on the Prime Minister’s ability to prorogue Parliament; more free votes and fewer omnibus bills in the House of Commons; and, a new approach to Senate and Supreme Court appointments.

The Liberal parliamentary reform agenda is safe politics, to a large extent, as many of their platform commitments can be described fairly as low-hanging fruit. For example, who can argue fervently against using secret ballots to elect committee chairs? The parliamentary reform agenda makes political sense also because it resonates with calls for institutional reform that have echoed for decades. In this sense, the reform package is mainstream rather than revolutionary. However, the Trudeau government’s approach to appointments stands alone in its capacity to cause a fundament shift away from the concentration of power in the hands of the Prime Minister and his advisors. The Trudeau government has stepped away from the Prime Minister’s power of appointment with respect to the Senate and the Supreme Court, giving much of the discretion over to independent advisory boards to make recommendations to the Prime Minister for appointments on the basis of merit, objective qualifications, and the representation of Canada’s diversity. The potential implications are enormous, not the least of which is that, to the extent that the Prime Minister now shares responsibility for appointments with independent advisory boards, the Prime Minister’s box of “carrots and sticks” has significantly fewer “carrots.”

This chapter explores the meaning and significance of the new Liberal government’s parliamentary reform agenda, with particular attention to the new approach to appointments. Each element of this agenda is described and assessed for its potential to facilitate a healthier balance of power between the executive and legislative branches. As stated above, the Trudeau government’s approach to appointments stands to make the most significant change to the way our Westminster system of parliamentary government works. Although ceding some of the Prime Minister’s control over appointments could (p. 176) help to bolster both the perception and reality of independence in our government institutions, it also comes at a cost with respect to executive accountability.

2.  Campaign 2015: The Liberal Government’s Parliamentary Reform Agenda

Prime Minister Stephen Harper’s Conservative government held office for almost 10 years, from January 2006 till November 2015. Prime Minister Harper formed three governments: two minorities and one majority. During his tenure, he became known as a power-monger who was willing to resort to extreme measures in order to silence criticism and opposition. In a best-selling book, Party of One: Stephen Harper and Canada’s Radical Makeover,5 columnist Michael Harris cites the Harper government’s muzzling of government scientists, agents of Parliament, and even Parliament itself, all in the name of message control and ultimate political survival. Harperland: The Politics of Control6, a best-seller by columnist Lawrence Martin, offers relentless evidence to support Harper’s control-freak reputation, including his decision to dismantle “sub-groups” within the Conservative Party—including youth wings—in order to ensure that there was no authority that could compete with his own.

Given Harper’s vulnerability on the democracy file, it is little wonder that Trudeau’s Liberals paid significant attention to parliamentary reform in its platform. In fact, many of its features can be understood as solutions to problems that appeared to either form or worsen under Harper’s rule. In this chapter, I analyze the various components of the Trudeau government’s parliamentary reform agenda and the degree to which they could contribute to a more equitable balance of power in Canada’s Parliament.

A.  A Gender-Equal Cabinet

At the swearing-in ceremony on 4 November 2015, Prime Minister Trudeau confirmed that his Cabinet would be made up of 15 men and 15 women, plus himself. Earlier that morning, Harper’s last cabinet of 39 members resigned, only 12 of whom (31 percent) were women. Four of these 12 were Ministers of State, or junior Ministers, who are assigned specific responsibilities in support of senior Ministers and are paid less. In Prime Minister Trudeau’s Cabinet there are no junior Ministers; all Ministers have the same rank.

(p. 177) In a press conference following the swearing-in ceremony, when asked why he appointed a gender-equal cabinet, Prime Minister Trudeau responded: “Because it’s 2015. Canadians elected extraordinary Members of Parliament from across the country and I am glad to have been able to highlight a few of them in this cabinet here with me today.”7

Gender equality in the Cabinet has never happened in Canada until now. It is significant in the sense that women are present in equal numbers in the executive branch, where power is concentrated. Women are still underrepresented in the House of Commons, where only 26 percent of Members of Parliament are women. By the United Nations’ standards, Canada continues to underperform on this measure, as we do not meet the 30 percent threshold that “the UN suggests leads to a shift in policy and practice in government.”8 Systems that use proportional representation (PR) tend to perform better with respect to the inclusion of women in elected assemblies. So, if an electoral reform agenda were to lead to the adoption of a PR system, even a mixed one, the number of women in Parliament would likely increase as well.

Prime Minister Trudeau’s cabinet is significantly smaller than Prime Minister Harper’s last cabinet. At 31 members including the Prime Minister, it is the same size or smaller than every Cabinet appointed since 1980 by Prime Ministers Harper, Chretien, Martin, Mulroney, and former prime minister Trudeau. However, 31 members is a large Cabinet when compared to the United Kingdom, where legislation caps the size of the Cabinet at 25 members (in a House of 649 MPs compared to Canada’s 338). Aucoin, Jarvis, and Turnbull have argued that although a large cabinet can be politically useful in that it has enough members to offer wide-ranging symbolic representation of Canada’s diversity, it is not as useful for deliberation and decision. There are simply too many people around the table for decisions to be taken in earnest by a full Cabinet of over 30 people, and so the work of Cabinet committees is vitally important to Cabinet government.

Brent Rathgeber, former Conservative-turned-Independent MP from Edmonton, Alberta, tabled a private members’ bill in 2015 aiming to cap Canada’s Cabinet at 26 members.9 He was inspired by the UK example. Because there are so few Cabinet positions, the likelihood of getting one is small, so MPs tend to focus more on their legislative work and devote less energy to cultivating positive relations with party leadership. It is possible that, if Canada were to work towards a smaller Cabinet size, a similar cultural effect could take hold. This would tip the balance of power towards a stronger, more independent legislative branch.

(p. 178) B.  Committee Reform

The Trudeau Liberals vowed that, if elected, they would take measures to enhance the power and independence of parliamentary committees. To this end, when Parliament resumed in 2015, parliamentary committee chairs were chosen by secret ballot so that voting MPs would be empowered to vote freely, rather than to rubber stamp the preference of the party leader, as was the norm previously. This change in approach to committee chair selection is consistent with trends in other Westminster countries such as the United Kingdom, where the entire House casts secret ballots to elect committee chairs. It is also in sync with a proposal from the Public Policy Forum, an Ottawa-based think tank, in a report entitled Time for a Reboot: Nine Ways to Restore Trust in Canada’s Public Institutions released in the weeks following the 2015 election.10

The Trudeau government has determined that Ministers and parliamentary secretaries cannot be voting members on committees, and cannot vote if they are substituting for a voting member. This, combined with the new approach to electing committee chairs, is designed to bolster the independence of committees from the executive branch and from the government’s agenda. Parliamentary committees are, to a large extent, the place where the legislative branch performs its essential functions, as it is in committee where proposed legislation and estimates are closely scrutinized, where witnesses are heard, and where amendments to legislation are crafted. Stronger committees mean a stronger legislative branch, with greater capacity to hold government to account.

It is too early to tell whether committees will be meaningfully transformed as a result of the Trudeau government’s reforms. At the time of writing, which is just over a year after the October 2015 election, it is fair to say that party discipline is no less present in committees than it was before. Even though MPs are freer to vote their true preferences when it comes to selecting a chair, they seem to be no less bound to the party line. This is not surprising, as party whips continue to play a strong role, which includes ensuring that MPs are present at committee meetings and aware of their role in defending and advancing party positions. However, it is possible that the cultural and behavioural implications of the institutional reforms might take longer to appear.

C.  Prorogation

Until December 2008, it seemed as though no one in Canada had ever heard the word “prorogation” before. But a prospective constitutional crisis brought it to the forefront of Canadian politics and governance. In November of that year, a newly-elected Conservative minority government under Prime Minister Stephen Harper delivered a (p. 179) fiscal update in the House of Commons. Among its contents was the proposal to end per-vote subsidies for political parties, which amounted to roughly $2 per vote in every year between general elections. Though the most popular parties stood to gain the most in absolute terms, the per-vote subsidy was an equalizer to the extent that it provided all parties that obtained at least 2 percent of the national vote with a guaranteed income each year, the effect of which could only be stabilizing.

The Conservatives’ plan came as a shock to the other parties, as it was not part of the Conservative election platform that fall and the opposition parties had not been consulted on it. The opposition parties, together making up a majority in the House, indicated that they could not support the fiscal update and, given that it was comparable to a “mini-budget,” it was interpreted as a confidence measure. It was merely weeks since the last general election. There would have been little appetite (or money) for a new election following the defeat of the government, so the Liberals and the New Democrats proposed that they form a coalition, with the Bloc Quebecois as a supporter. This proposal became public in the form of an open letter to the Governor General. However, in order for this proposed coalition government to become a reality, the Conservative government would have to be defeated first. Prior to the scheduled opposition day, on which the government was all but sure to be defeated, Prime Minister Harper requested that the Governor General prorogue Parliament, a measure that brings an end to the parliamentary session and its business.

Prime Minister Harper was widely criticized, by academics, journalists, politicians, and citizens, for his willingness to take extreme measures to avoid a confidence vote he knew his government was destined to lose. In 2009, he sought and obtained prorogation again, this time in coincidence with parliamentary inquiries into the Afghan detainee affair.11 To be fair, Prime Minister Harper was not the first to use prorogation to quieten the House for political purposes. Prime Minister Chretien did as well, for example, in advance of the Auditor General’s damning report on the sponsorship scandal in 2003. Less fuss was made at the time, perhaps because Prime Minister Chretien’s government held a majority in the House and, though the report was damaging and embarrassing, confidence was not an issue. Prorogations do not happen very often (some Westminster systems do not use them at all), but Prime Ministers’ willingness to resort to prorogation as a political tool has been a factor in upsetting the balance of power between the executive and the legislative branches. To be clear, the former can effectively shut the latter down for a period of time.

The Liberals campaigned on eliminating the government’s ability to use prorogation to silence Parliament and avoid its scrutiny. The most commonly-suggested way to do this is to require a multi-party or even all-party agreement before Parliament is prorogued.12 This would protect the legislative branch against a politically-motivated purging at the hands of the executive branch.

(p. 180) D.  Free Votes and Omnibus Bills

As already mentioned, party discipline is strong in Canada. It is as though all votes are treated as confidence votes, and so deviation from the party line is a rarity. The Liberals campaigned on allowing more free votes in the House of Commons; specifically, the platform says that MPs should be free to vote as they wish on matters other than the following three: those that implement the Liberal Party platform, confidence votes, and, matters addressing the Charter of Rights.

Free votes are a tricky issue. On the one hand, they are appealing to the extent that they release MPs from the strict expectation of party solidarity and allow them to vote either according to their own judgment or conscience (the trustee model) or in a way that takes into consideration the wishes of constituents (the delegate model). On the other hand though, we know that voters take party into account when they cast their ballots. By voting for the Liberal candidate, there is an expectation that, if elected, this individual would support the platform that she campaigned on. In this sense, the three restrictions mentioned above make sense. And, the public expects solidarity from caucus members; there is not likely to be much in the way of a public outcry if no free votes come up during a parliamentary session.

Trudeau’s Liberals are not the first to campaign on more free votes in the House; Paul Martin did too in his campaign for the Liberal leadership. He was looking for a way to connect with veteran MPs who were not Cabinet members but were looking for a more meaningful role to play as legislators. Martin proposed the British three-line whip approach, which would free backbenchers from the party line on votes that were considered less important to the government’s mandate and survival. Martin’s “democratic deficit” reform package got media and academic attention when he introduced it, but in general it failed to materialize once he became Prime Minister.13

The caveats specified in the Trudeau Liberal platform with respect to the use of free votes guarantee that a free vote would never lead to the defeat of the government; Liberal MPs are still expected to vote with the party on matters of confidence. And, the Liberals’ pledge for more free votes affects the Liberal caucus alone; it would be up to other leaders to choose whether to follow suit. In light of these factors, the Liberals’ willingness to tolerate more free votes might, in fact, do very little to change the current balance of power in the hands of the Executive.

The Liberal platform also pledges to change the Standing Orders to prevent the use of omnibus budget bills as a means of forcing legislation through the House of Commons quickly and without proper scrutiny. The Conservatives were accused of this when they introduced “monster omnibus budget bills” into the House of Commons. As argued in an editorial in The Globe and Mail in 2015, “(t)hey usurp Parliament’s most important (p. 181) role, that of oversight, by lumping a variety of matters into a single bill.”14 Further, because bills are studied by only one parliamentary committee, it means that no matter which committee is involved, it gets a huge, complex, unmanageable bill that incorporates a number of matters outside its normal expertise. To top it off, the fact that an omnibus budget bill is a confidence measure means that the Executive is essentially bullying Parliament by forcing them to pass it. To do otherwise would be to trigger an election, which would mean that the public would lose out on all of the goodies crammed into the bill.

The end of omnibus budget bills would be a good thing for Parliament and for the balance of power between the Executive and the legislature. They serve no purpose other than political advantage, and they come at the cost of Parliament’s essential scrutiny function. Make no mistake, the Executive will always take ownership of the budget, and the role of MPs will always be to scrutinize and amend rather than to create. This is the proper division of labour in a Westminster system. But each role is essential, especially on budget bills—the most significant in the tenure of any government and the most vital to the implementation of the government’s agenda and the delivery of public programs and services.

E.  Senate Appointments

Canadians got a preview of Justin Trudeau’s approach to appointments in January 2014, when he announced that Senators would no longer sit in the Liberal caucus. This came as a shock to the media, the public, and the Senators themselves, who were not given much in the way of advance notice of this change. At the time, Trudeau had been Liberal leader for less than a year. The party was in third place in the House of Commons and had the lowest number of seats it had ever held in Canadian history. The Liberals won a dismal 34 seats in the 2011 election. Trudeau had the daunting task of turning the party’s fortunes around in time for the 2015 campaign. In this light, his decision to remove Senators from caucus was a way of breaking ranks with the Liberal Party of the past. His was a new party, one where only elected members could sit in caucus. In a way, this was Trudeau’s first step in implementing a democratic reform agenda. Obviously, the implications of his decision stood to go beyond the Liberal Party itself and could affect the operation of the Senate as an institution. Once the former Liberal Senators were set free, they quickly decided to caucus together, which mitigated the initial institutional effects of Trudeau’s decision. However, as the weeks and months went on, more Senators announced their decision to sit as true Independents. Slowly but surely, the ties (p. 182) that bound the Senators to the House of Commons—and to the leaders who appointed them—were weakening.

As Prime Minister, Trudeau followed through on his promise to facilitate the appointment of Independent Senators which, in turn, could make the Senate a more independent institution. Historically, Prime Ministers have held closely their power to appoint members to the Senate. It has been a very useful tool to reward party loyalists and to ensure that the upper house has a critical mass of representatives from the Government so that bills get through in the form that they passed through the House. A hostile Senate could be a problem for a government, as it could slow down or thwart its agenda by introducing amendments, filibustering, or refusing to pass a bill altogether. In comparison, a Senate full of Independents is an unknown variable. Nevertheless, the Trudeau government has made good on its promise to establish an Independent Advisory Board for Senate Appointments. This five-member Board accepts applications from qualified Canadians when Senate positions become available. The Advisory Board assesses the applications and, on that basis, makes non-binding appointments to the Prime Minister based on merit.15

The recommendations have to be non-binding, as to do otherwise would require a constitutional amendment regarding the Crown’s prerogative to appoint. Technically, according to the Constitution Act, 1867, it is the Governor General who appoints Senators on behalf of the Crown. However, the Prime Minister has always exercised discretion with respect to appointments and the Governor General’s role is strictly ceremonial. A constitutional amendment would be very difficult to obtain and is unnecessary to achieving the desired outcome, so long as Prime Ministers respect the work of the Advisory Board.

The Liberal government’s approach to appointing Senators follows a number of attempts to reform the Senate. By today’s standards for democracy, it is difficult to justify the existence of an upper house full of political appointments. The impetus for reform is clear and the desire is widespread, but the practicalities have proven very difficult. As the Supreme Court of Canada ruled in 2014, the Conservatives’ preference for fixed terms and provincial elections for Senators would require formal constitutional change and the consent of at least 7 of the 10 provinces representing at least 50 percent of the population.16 There is no provincial consensus on Senate reform, which makes a constitutional amendment virtually impossible under the amending formula. The mere thought of reopening the constitutional debate sends shivers down the spines of most politicians and many Canadians as well. Aucoin, Jarvis, and Turnbull contend that the lack of political will to pursue constitutional reform impedes our growth and maturity as a democracy, as it prevents positive change from going forward. Upon drawing the conclusion that formal constitutional change is impossible but Senate reform is necessary, Prime Ministers Harper and Trudeau both pursued “informal constitutional change.” Most (p. 183) recently, Prime Minister Trudeau has introduced an appointments process that does not challenge the Crown’s prerogative to appoint under the Constitution. Because the Advisory Board’s recommendations are not binding on the Prime Minister, he retains his access to the Crown’s prerogative power to appoint, and constitutional change is not required to implement the Liberal’s platform promise on Senate reform.

To date, Prime Minister Trudeau has appointed 28 Senators under the new process including Senator Peter Harder, a former deputy minister and career public servant. Senator Harder serves as the Government’s representative in the Senate, which means he works with the Government House Leader to ensure that legislation gets tabled in the Senate.17 The changing role of the Government leader in the Senate has been a focal point of concern and speculation, as traditionally this individual was appointed to the Cabinet and was considered a key player in moving the Government’s agenda through the Senate. This made political sense, as having a partisan operative in a leadership position in the Senate gave the Government assurance that its legislation will be treated favourably in the upper house. In the new independent Senate, where the idea is to appoint non-partisans and to operate independently from the House, what is the role of the Government’s representative? How does this individual “oversee” a group of Independents? What does “representative” mean in this context?

Senator Harder has admitted that he anticipates challenges. With the new appointments, the number of Independent Senators has grown significantly, making the institution even more of a wild card. However, the lack of party and/or government affiliation in the Senate does not necessarily mean that it will become more wily or uncontrollable. It simply means that party caucuses will no longer be the primary organizational feature in the chamber. No doubt, factions will develop—perhaps around region, identity, language, or on a case-by-case basis according to the issue—as independence does not preclude cooperation and working together on a common cause.

We have had an opportunity to see how a less-partisan Senate interacts with government legislation. The Senate responded to the government’s bill on doctor-assisted dying by proposing amendments. Among them was the suggestion that the bill be amended to include access to assisted dying for patients who are not terminally ill. The House agreed to most of the Senate’s proposed amendments, including providing consultation on palliative care options, but did not accept the Senate amendment regarding access for patients who are not terminally ill. When the amended bill returned to the Senate, it deferred to the House’s wishes and the bill passed.

The bill provided an opportunity for dialogue between the two chambers. The exchange that took place was constructive in the sense that the Senate did not shy away from its responsibility to provide “sober second thought.” Indeed, many Canadians are onside with the Senate’s concern with respect to limiting the application of the bill to terminally ill patients. By proposing the amendment, the Senate forced the House to (p. 184) rethink its approach. But in the end, the Senate deferred to the will of the elected House of Commons. Independent Senator Andre Pratte described the situation as follows: “I am convinced the government is making a serious and cruel mistake by taking away the right to medically assisted dying from a group of patients, those who are not terminally ill yet suffering terribly. … But the government will answer to the people for that error.”18

This quotation speaks to the appropriate balance of power between the House and the Senate. Though the latter can provide scrutiny and ask the government to reflect on its plans, it is ultimately the former that is accountable to the people. To the extent that a more independent Senate is more capable of providing a sincere sober, second thought, it will act as a more effective check on the executive branch than the Senate has ever been. Accountability in this context does not require that government legislation be defeated or changed substantially, but that it is scrutinized and debated in earnest, and that Senators are empowered to suggest amendments that they deem appropriate.

It is difficult to predict how future Senate appointees will interpret their role as Independents. After all, the Senate has historically been organized along party lines, though often with less partisan acrimony than what exists in the House of Commons. The Senate is not a confidence chamber, which means that strict party discipline has been less of an imperative. But the new Senate is charting a new course altogether and it remains to be seen how the upper chamber will perform its legislative review and regional representation functions. On a depressing note, nothing about the new appointments process prevents the occurrence of a scandal, or accusations of wrongdoing such as the ones against Senators Duffy, Brazeau, and Wallin that left the Senate in disgrace.

F.  Supreme Court of Canada Appointments

The Prime Minister announced, in an opinion piece in The Globe and Mail, the government’s new process for filling vacancies on the Supreme Court of Canada.19 According to the new rules, any Canadian who is a qualified judge or lawyer, functionally bilingual, and “representative of the diversity of our great country” can apply. There is now an independent advisory board, chaired by former prime minister Kim Campbell, to review applications and make recommendations to the Prime Minister in the form of a short list of three to five candidates. Before the list is passed on to the Prime Minister, it is reviewed by provincial and territorial Attorneys General, the Chief Justice of (p. 185) Canada, relevant Cabinet ministers, and opposition justice critics, and by a parliamentary committee as well. Applicants complete a questionnaire and the ultimate nominee faces questioning by MPs and Senators.20 In December 2016, Justice Malcolm Rowe of Newfoundland was appointed to the Supreme Court of Canada via the new process. His appointment filled a vacancy created when Justice Thomas Cromwell of Nova Scotia retired.21

This is a rigorous process with much input and multiple check points. The previous appointment process involved input and review from provincial representatives, Cabinet ministers, and others, and since (and including) Justice Rothstein’s appointment, some nominees have been subject to an “interview” of sorts in Parliament. So, the main differences between the old process and the new one are that individuals are to nominate themselves and an independent board will craft the short list. The Prime Minister’s comments with respect to diversity indicate that the new advisory board will be looking to ensure that the Supreme Court’s membership is reflective of Canada’s rich diversity. Historically, the mandate of the Court to be representative has been a source of contention, as the bench has not always been balanced with respect to gender diversity and the inclusion of minorities, including of Aboriginal peoples.

The one element of Canada’s diversity that is embedded in the composition of the Supreme Court is the representation of Quebec. By statute, three of the nine justices must come from Quebec. Apart from that, the convention has been to appoint three justices from Ontario, two from the West, and one from Atlantic Canada. Following the announcement of the new process, the Prime Minister’s Office (PMO) confirmed that this process might cause a break with the tradition of regional representation described here. In fact, PMO went as far as to say that, when the retirement of Justice Cromwell created a vacancy, there was no guarantee that the spot would be filled by another Atlantic Canadian. In the end, Justice Rowe’s appointment maintained the tradition of regional balance.

PMO might be said to have been picking an unnecessary fight with Atlantic Canada by departing from the convention to appoint a judge from the Atlantic region. Politically, it seemed a risky move and a snub to the region that elected Liberal candidates in every one of its 32 ridings. Provincial justice ministers from the region took to the airwaves to express their concern, so it might have been the case that the new appointments process would have caused a rift in federal-provincial relations if the nominee for this position had hailed from another region.

There is no clear consensus as to whether regional representation on the Court is necessary. As Robert Schertzer from the University of Toronto argues, there is little (p. 186) evidence to suggest that the regional affiliation of justices affects their rulings. However, “the power and importance of symbolism should not be underestimated. The Supreme Court itself has been clear that regional representation on the bench is of utmost importance.”22 In a country such as Canada, where regional identity is the most relevant political cleavage, even symbolic regional representation in Canada’s foremost political institutions confers legitimacy. However, Atlantic Canada is the country’s smallest region, with a population of just over 2.3 million people. The total population of the four Western Canadian provinces is approximately 10.3 million by comparison, and Quebec and Ontario have populations of 8.2 million and 13.6 million respectively. Therefore, Atlantic Canada cannot make the claim that, based on the principle of representation by population, there must be a Supreme Court justice from Atlantic Canada at all times. The numbers simply do not warrant it. But regional representation in Canada has been by convention and has been deeply embedded in our political culture. It is not simply about numbers.

Even apart from the issue of Atlantic Canada’s representation on the Court, the new process for Supreme Court justice appointments is much more high-risk, from a political perspective, than the other reforms discussed here, including the reform of the Senate appointments process. The difference is that the Senate has long been the subject of proposals for reform, especially on the subject of the appointment of Senators by the Prime Minister. This process left the Senate vulnerable to appointments that were entirely politically-motivated and, as mentioned previously, it is difficult to justify an upper house full of patronage appointees. Today’s standards for democracy are attentive to fairness, merit, equality, and the representation of diversity, but political loyalty has all too often been the primary criterion for becoming a Senator. On this file, the broad consensus was that it was time for change.

Supreme Court appointments, on the other hand, were never the subject of such intense criticism. Even though there are expectations that the Court be more representative of Canada’s diversity, the appointments process has always been based on merit and so not vulnerable to accusations of patronage. Perhaps the most controversial moment in the history of Supreme Court appointments was the failed nomination of Justice Marc Nadon. His name was put forward by Prime Minister Stephen Harper, but the appointment was vetoed by the Supreme Court itself after Prime Minister Harper referred the question to the Court. The Court ruled that the appointment could not go ahead because Justice Nadon did not meet the statutory criteria set out in the Supreme Court Act.

Canadians’ trust in the Supreme Court as an institution has been consistently very high. Public opinion data have shown that Canadians trust the Supreme Court more (p. 187) than any other institution, including Parliament.23 In contrast, the public’s attitude toward the Senate is particularly hostile, especially following criminal charges against Senators Duffy and Brazeau and an investigation into Senator Wallin. The was no discernible public pressure to reform the Supreme Court appointments process, and there seems to have been no major problem to solve, and so the new process reflects a desire on the part of the Trudeau government to adopt a new, government-wide approach to appointments that is based on self-nominations, scrutiny by independent boards, merit, and the representation of diversity.

3.  Conclusion

Justin Trudeau’s approach to appointments could inoculate him politically, in the event that an appointee lands in hot water in the future. Consider the case of Senator Mike Duffy. In 2015, he went to trial on 31 criminal charges that related to four overarching themes: whether he met the residency requirement to represent Prince Edward Island in the Senate, whether his process for administering contracts using Senate funds was appropriate, whether his travel claims and reimbursements were legitimate according to the Senate financial administration rules, and, whether he intended to accept a bribe from Nigel Wright, Chief of Staff to the Prime Minister. He has been acquitted on all 31 charges, and has since returned to his work in the Senate, but his acquittal is understood to be largely a result of lax rules in the Senate about both residency and Senators’ use of public funds. His own reputation remains in tatters, and the damage has not stopped with Duffy. The Prime Minister who appointed him, Stephen Harper, was held to account for Duffy’s appointment on the campaign trail in 2015. This was by no means the only—or even the primary—reason for the defeat of the Harper government, but the Prime Minister could not escape political accountability for his decision to appoint Duffy to the Senate. To the extent that the new appointments process dilutes the discretion of the Prime Minister, and relies on the objective review of candidates by independent advisory boards, the Prime Minister is relatively immune from political blowback if appointees become engulfed in controversy.

There are a number of proposals in the Liberal Party’s 2015 platform that could be placed in the category of democratic reform, including pledges to review election spending, to revisit the measures implemented under the Fair Elections Act, and to study alternative electoral systems. However, I chose to focus here on those campaign promises that relate most directly to the relationship between the Executive and the legislature. It is possible that electoral reform, for example, could lead to a transformed relationship between the two branches of government but, without knowing which new system—if (p. 188) any—will be adopted, musings on the effects of electoral reform on Westminster governance would be premature speculation.

The concentration-of-power phenomenon has long been a concern of students and observers of Canadian politics. The Liberal platform on parliamentary reform speaks to this concern and is largely a step in the right direction toward achieving a healthier balance of power between the political executive and elected MPs. Though some proposals, such as an increase in free votes, are unlikely to affect this relationship to a great extent, the Trudeau government’s new approach to appointments stands to make a significant change to the traditional powers of the Prime Minister of Canada. Time will tell whether these changes will last or whether a subsequent Prime Minister will abandon independent advisory boards and return to the old model in which the Prime Minister’s discretion over appointments was paramount.

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Footnotes:

Associate Professor, Department of Political Science, Dalhousie University.

1  It is important to note that although legislation can be initiated in either house, the Senate cannot introduce money bills.

2  D. Desserud, The Confidence Convention under the Canadian Parliamentary System (Canadian Study of Parliament Group, 2007). Available at: http://cspg-gcep.ca/pdf/Parliamentary_Perspectives_7_2006-e.pdf.

3  A. Heard, “Just What Is a Vote of Confidence? The Curious Case of May 10, 2005,” (2007) 40:2 Canadian Journal of Political Science 395–416.

4  P. Aucoin, M. Jarvis and L. Turnbull, Democratizing the Constitution: Reforming Responsible Government (Emond Montgomery Press, 2011).

5  M. Harris, Party of One: Stephen Harper and Canada’s Radical Makeover (Viking Canada, 2014).

6  L. Martin, Harperland: The Politics of Control (Viking Canada, 2010).

7  A. Frisk, “ ‘Because It’s 2015’: Trudea’s Gender-Equal Cabinet Making Headlines around the World, Social Media,” Global News (5 November 2015). Available at: www.globalnews.ca/news/2320795/because-its-2015-trudeaus-gender-equal-cabinet-makes-headlines-around-the-world-social-media/.

8  E. Anderssen, “We Have a Record Number of Female MPs, but Hold the Applause.” The Globe and Mail (20 October 2015). Available at: http://www.theglobeandmail.com/life/we-have-a-record-number-of-female-mps-but-hold-the-applause/article26887164/.

9  A Raj, “Independent MP Seeks to Limit Size of Federal Cabinet,” Huffington Post 2015. Available at: http://www.huffingtonpost.ca/news/brent-rathgeber-private-members-bill/.

10  Public Policy Forum, “Time for a Reboot: Nine Ways to Restore Trust in Canada’s Public Institutions.” Ottawa, Ontario (October 2015). Available at: http://www.ppforum.ca/sites/default/files/PPF_TimeForAReboot_ENG_v6.pdf.

11  R. Whitaker, “Prime Minister v. Parliament,” The Toronto Star (18 December 2009). Available at: https://www.thestar.com/opinion/2009/12/18/prime_minister_vs_parliament.html.

12  See Aucoin, Jarvis and Turnbull, above (n 4).

13  P. Aucoin and L. Turnbull, “The Democratic Deficit: Paul Martin and Parliamentary Reform” (2003) 46 Canadian Public Administration 427–449.

14  Editorial, The Globe and Mail (12 May 2015). Available at: http://www.theglobeandmail.com/opinion/editorials/another-budget-another-contemptuous-tory-omnibus-bill/article24404300/. See also A. Dodek, “Battling the Omnibus Bills”, National Post (29 August 2016). Available at: http://news.nationalpost.com/full-comment/adam-dodek-battling-the-omnibus-bills.

15  Government of Canada, Independent Advisory Board for Senate Appointments (2016). Available at: https://www.canada.ca/en/campaign/independent-advisory-board-for-senate-appointments.html.

16  2014 SCC 32.

17  H. Jackson, “Peter Harder, Trudeau’s Senate representative, Seeks $800k Budget, Gets Half,” CBC News (21 April 2016). Available at: www.cbc.ca/news/politics/peter-harder-senate-budget-1.3546501.

18  L. Stone and S. Fine, “Senate Backs Down, Passes Assisted-Dying Legislation,” The Globe and Mail (17 June 2016). Available at: http://www.theglobeandmail.com/news/politics/senate-passes-assisted-dying-legislation/article30507549/.

19  J. Trudeau, “Why Canada Has a New Way to Choose Supreme Court Justicess,” The Globe and Mail (2 August 2016). Available at: http://www.theglobeandmail.com/opinion/why-canada-has-a-new-way-to-choose-supreme-court-judges/article31220275/.

20  J.P. Tesker and C. Tunney, “Justin Trudeau Outlines Selection Process for New Supreme Court Justices,” CBC News (2 August 2016). Available at: http://www.cbc.ca/news/politics/supreme-court-canada-justices-selection-1.3703779.

21  CBC, “Justice Malcolm Rowe Is Welcomed to the Supreme Court of Canada,” CBC News (2 December 2016). Available at: http://www.cbc.ca/news/politics/malcolm-rowe-supreme-court-1.3879443.

22  R. Schertzer, “Reflecting Canada’s Regions Confers Legitimacy on the Top Court, even if Doesn’t Influence the Judges’ Rulings,” Policy Options (17 August 2016). Available at: http://policyoptions.irpp.org/magazines/august-2016/why-regional-representation-on-the-supreme-court-does-and-doesnt-matter/.

23  B.J. Siekierski,“Vast Majority of Canadians Trust Supreme Court, including Most Tories,” iPolitics (2005). Available at: http://ipolitics.ca/2015/08/16/vast-majority-of-canadians-trust-supreme-court-including-most-tories/.