Prime Minister Justin Trudeau and the new Liberal government face a unusual dilemma. They have an ambitious legislative agenda. They have a majority in the House of Commons. But they do not control the Upper House, the Senate. In that legislative chamber, the Conservative Party have 47 members. The Liberals cast their senators, now numbering 29, from their caucus. There are 7 independent senators. And 22 vacancies. Because the Liberal senators are no longer subject to party discipline, their votes cannot be controlled. One can imagine nevertheless that Liberal senators would be inclined to vote for the Liberal Party’s legislative agenda. But the Conservative Party Senators, however, have been strictly whipped, at least under the leadership of former Prime Minister Stephen Harper.

Before the Supreme Court had pronounced on the Senate Reform Act Bill, on January 29, 2014, the day that Justin Trudeau, then leader of the third party in the House of Commons, released the Liberal Senators from his caucus, he made the following announcement (I am reproducing it in its entirety for sake of accuracy and completeness):

Good morning.

Canadians want their leaders to be open and straight with them, to tell them the truth. They expect us to come forward with practical solutions that address problems directly.

The Senate has become one of those problems. That, I have heard clearly from Canadians. The Senate is broken, and needs to be fixed.

At the same time, Canadians do not want to re-open the Constitution. They don’t want a long, rancorous, and likely pointless debate with the provinces that would distract us from focusing on more important problems.

They want leaders who’ll help build an economy that works for all of us, in which everyone has a real and fair chance to succeed. They want us focused on their jobs, their pensions, and a good future for their kids.

So today, I propose an immediate remedy that will not only quell many of the distractions that the current senate is causing, but actually improve its capacity to serve all Canadians.

You see, the Senate is suffering from two central problems: partisanship and patronage.

Let us begin with partisanship.

The Senate was once referred to as a place of sober, second thought. A place that allows for reflective deliberation on legislation, in-depth studies into issues of import to the country, and, to a certain extent, provide a check and balance on the politically-driven House of Commons.

It has become obvious that the party structure within the Senate interferes with these responsibilities.

Instead of being separate from political, or electoral concerns, Senators now must consider not just what’s best for their country, or their regions, but what’s best for their party.

At best, this renders the Senate redundant. At worst — and under Mr Harper we have seen it at its worst — it amplifies the Prime Minister’s power.

That is why I have come to believe that the Senate must be non-partisan. Composed merely of thoughtful individuals representing the varied values, perspectives and identities of this great country. Independent from any particular political brand.

And since I believe that real leadership is not just about making campaign promises, I’m taking immediate action, today.

As of this morning, only elected Members of the House of Commons will serve as members of the Liberal Caucus. The 32 formerly Liberal Senators are now independent of the national Liberal Caucus. They are no longer part of our parliamentary team.

Let me be clear, the only way to be a part of the Liberal caucus is to be put there by the voters of Canada.

Further, I challenge the Prime Minster to match this action. As the majority party in the Senate, immediate and comprehensive change is in Conservative hands. I’m calling on the Prime Minister to do the right thing. To join us in making Senators independent of political parties and end partisanship in the Senate.

And by ending partisanship now, we can also end patronage, going forward.

The Senate of Canada is a public institution. It should not be run like the Prime Minister’s private club.

Here’s what I’m going to do about it.

I’m committing today that, if I earn the privilege of serving Canadians as their Prime Minister, I will put in place an open, transparent, non-partisan public process for appointing and confirming Senators.

No more closed doors. No more secretive deliberations. No more announcements the week before Christmas, under the cover of darkness.

We are all poorly served by the way in which Senators are appointed. Canadians especially, yes, but also Members of the House of Commons, even Senators themselves are discredited by the antiquated convention that sees Senators appointed by one person, and one person only.

Eight years ago, Mr Harper railed against this convention as Leader of the Opposition, and committed to change it.

As we know all too well: he didn’t. In fact, he embraced this archaic process.

As Prime Minister, he has made 59 appointments, despite his promise to appoint zero. In fact, Mr Harper is the only Prime Minister in our country’s 147 year history to appoint the same two people to the Senate twice.

All of these people share one characteristic. The Prime Minister, and the Prime Minister alone, judged them to be useful to himself, and to his party. Mike Duffy, Pam Wallin, Patrick Brazeau, Irving Gerstein are particularly egregious examples of where that leads.

It shows that Mr Harper and the Conservatives have been in power so long that they can no longer tell the difference between their party’s interest, and the public interest.

That’s poor judgment. More than that, it’s just plain wrong.

That is why I call upon the Prime Minister to publicly commit, as I have today, to be guided in all future Senate appointments by an open, transparent, non-partisan process, and once appointed, have senators sit independent from the political parties that serve in the House of Commons.

And in so doing, we will remove partisanship and patronage from the Senate, reforming it and improving it in a deep and meaningful way, without ever having to touch the Constitution of Canada.

Which brings me to my final point.

As an unelected body, there are — and ought to be — limits on the Senate’s power. These limits have expanded over time and have become conventions. These proposals are in keeping with that direction.

As you all know, the Supreme Court of Canada will rule sometime soon on the exact limits of the House of Commons power as it relates to Senate Reform. Let me be clear on this point: these proposals, while bold and concrete, are not the final word. They represent our judgment of how far we can go in the absence of guidance from the Supreme Court.

In other words, I believe this is the most meaningful action possible without opening up the Constitution. If the Supreme Court says more can be done, we will be open to doing more.

In closing, let me say that there has been a lot of loose rhetoric from the other parties about Senate Reform.

Mr Harper would still have you believe that he is a reformer at heart, despite 8 years of hard evidence to the contrary. Canadians elected his party to bring change to this place. Instead, they got a more virulent version of the status quo: a hyper-political, hyper-partisan Senate that is, more than ever, the Prime Minister’s private plaything.

As for Mr Mulcair, his promise to abolish the Senate, as if he had a magic wand, is either deliberately and cynically misleading, or empty and foolish. He knows, or ought to know, that his promise would require the most significant amendment to the Constitution since the creation of the Charter of Rights and Freedoms. Mr Mulcair may want to spend the next decade arguing about the Constitution. I prefer to spend it helping Canadians solve their problems.

At our best, Liberals are relentless reformers. When public institutions fail to serve the public interest, we take bold steps to change them.

We want to build public institutions that Canadians can trust, and that serve Canadians. This requires real, positive change. These proposals are the next step in our Open Parliament plan to do just that.

They won’t be the last.

Thank you.

I understand that ever since that pronouncement, the Liberal senators have in fact no longer been part of the Liberal caucus, that they are no longer consulted by Liberal leadership and that they have been left to make their own decisions about how to vote on different legislative bills without influence or interference. In other words, while they may remain members of the Liberal Party, they have not been forced to act in a partisan manner.

Clearly, the freeing of the Liberal senators from the reins of a party whip in no way runs counter to the provisions of the Constitution Act, 1982. What about the proposal for appointing new senators? Would the proposal advanced by Justin Trudeau now nearly two years ago run afoul of the provisions for amending the Constitution being that it might be a change in the “method of selecting Senators” (s. 42(1)(b)) requiring a constitutional amendment under the general amending formula (s. 38(1))? I think that the answer to that question is “no”.

The Supreme Court was asked to look at a different sort of change to selecting senators – so-called “consultative elections” resulting in lists that the Prime Minister would have to (“must”) consider when recommending appointments to the Senate to the Governor General. In Reference re: Senate Reform, 2014 SCC 32, the Court made the following observations about the “appointed” nature of the Senate:

[57] As this Court wrote in the Upper House Reference, “[i]n creating the Senate in the manner provided in the Act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons”: p. 77 (emphasis added). The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives.

[58] Correlatively, the choice of executive appointment for Senators was also intended to ensure that the Senate would be a complementary legislative body, rather than a perennial rival of the House of Commons in the legislative process. Appointed Senators would not have a popular mandate — they would not have the expectations and legitimacy that stem from popular election. This would ensure that they would confine themselves to their role as a body mainly conducting legislative review, rather than as a coequal of the House of Commons. As John A. Macdonald put it during the Parliamentary debates regarding Confederation, “[t]here is . . . a greater danger of an irreconcilable difference of opinion between the two branches of the legislature, if the upper be elective, than if it holds its commission from the Crown”: 1865 Debates, February 6, 1865, at p. 37. An appointed Senate would be a body “calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people”: ibid., at p. 36 (emphasis added).

[59] The appointed status of Senators, with its attendant assumption that appointment would prevent Senators from overstepping their role as a complementary legislative body, shapes the architecture of the Constitution Act, 1867. It explains why the framers did not deem it necessary to textually specify how the powers of the Senate relate to those of the House of Commons or how to resolve a deadlock between the two chambers. Indeed, on its face the Constitution Act, 1867  grants as much legislative power to the Senate as to the House of Commons, with the exception that the House of Commons has the exclusive power to originate appropriation and tax bills (s. 53 ). As Professor Smith aptly summarizes:

[The framers’] original answer to the clash that would inevitably occur between elected chambers was to make the Senate appointed. This assured that a government enjoying the confidence of the House of Commons would normally be able to have its legislation adopted by Parliament, but gave the Senate the ability to act as a check in those rare instances when it was absolutely necessary.

(D. E. Smith, The Canadian Senate in Bicameral Perspective (2003), at p. 169; see also A. Heard, “Constitutional Doubts about Bill C-20 and Senatorial Elections”, in Smith, The Democratic Dilemma, 81, at p. 95.)

[60] The proposed consultative elections would fundamentally modify the constitutional architecture we have just described and, by extension, would constitute an amendment to the Constitution. They would weaken the Senate’s role of sober second thought and would give it the democratic legitimacy to systematically block the House of Commons, contrary to its constitutional design.

The change that now Prime Minister Trudeau suggested in January 2014, namely the creation of an “open, transparent, non-partisan process” for the appointment of senators, would reinforce and not undermine the “appointed” nature of the Senate. And more importantly, it would reinforce the fact that senators could act in a body that was free from the “political, partisan arena”. While the change would be in how the candidates for appointment are chosen, it would not be a change in the fundamental constitutional architecture of Parliament. Indeed, it would be a return to the original conception of the Senate, where senators would sit as a body of sober, second thought, acting as a check on the elected House of Commons only in those rare circumstances where it was absolutely necessary.

The challenge that Prime Minister Trudeau and his government faces is in putting together this “open, transparent and non-partisan process” now. In order for this new process to be non-partisan and enduring, it will obviously have to be the subject of all-party discussions and negotiations. It also should involve consultations with existing senators. The procedures for developing this process themselves will need to be open, transparent and non-partisan. The development of this process will not take days. It will certainly take months. It may take years.

In the meantime, the Liberal government will need the Senate to pass its legislation. If the Conservatives continue to whip their members, then the legislative agenda of the Liberal government will be threatened. And, more importantly for the future of this important constitutional development, the Liberals will be sorely tempted to resolve the problem by simply filling the 22 vacancies with sympathetic supporters.

One can only hope for the health of Canada’s Parliament that the new leader of the Opposition, Ms. Rona Ambrose, chooses to follow the example of Mr. Trudeau and to no longer whip the Conservative members of the Senate. If that happens, then the development of this open, transparent and non-partisan process can take place with full and proper consultations of all parties, and all involved actors. Indeed, the process would likely be the subject of a Bill, and out of an abundance of caution, it may well be wise to refer that bill to the Supreme Court in order to make sure that no constitutional principles or provisions will be offended.

I am keeping my fingers crossed.

I remain

Constitutionally yours

Arthur Grant