Some further thoughts on two of Canada’s democratic institutions

A couple of months ago I wrote a bit about democracy. I focused, mostly, on the types of democracy (liberal democracy (quite rare), illiberal democracy (rather more common) and conservative or Confucian democracy (even more rare and found only in Asia).

Yesterday I wrote a bit about the Senate, especially about its role as the “second” chamber representing us as citizens of the the constituent parts of the federation.

Today, I want to talk a bit about the nature of two Canadian institutions ~ the Governor General and the Senate ~ and how we can and should make both better.

The Governor General

I would like to digress for a moment and reaffirm my belief, also stated a couple of months ago, that Chantal-PetitclercChantal Petitclerc, who has just been recommended for appointment to the Senate, should be our next Governor General. I believe she is highly qualified: an inspirational leader who will be a shining example for all Canadians.

The Governor General is, just like the sovereign, the epitome of the country, a personal representation of all that is best in ourselves and in our fellow citizens. The history of the office is long in Canada, going all the way back to the French ancien régime in the 17th century. Since 1952 all GGs have been Canadians …

… some have been exceptional in almost every way, a couple have been, to be charitable, pedestrian. One thing that is worthy of note is that the office has alternated, since 1952, between Anglophone and Francophone Canadians ~ the Francophones have not all been Québécois or Québécoise, Jeanne Sauvé was from Saskatchewan, Roméo LeBlanc from New Brunswick and Michaëlle Jean is an immigrant from Haiti.

Prime Minister Lester Pearson started the “custom” of selecting fellow parliamentarians when he recommended his longtime friend, fellow diplomat and former (Progressive Conservative) Speaker of the House of Commons Roland Michener to the Queen who formally appointed him to the office in 1967. Prime Minister Jean Chrétien broke with that “tradition” when he recommended journalist/broadcaster and communicator extraordinaire Adrienne Clarkson to the office, something which Prime Minister Paul Martin repeated when he recommended Michaëlle Jean to be the 27th governor general since 1967. The current incumbent, David Johnston, is a noted legal and constitutional scholar, teacher and former university chancellor and president.

I think the “custom” of recommending superannuated politicians to the office, as both Conservative and Liberal prime 440px-Letters_Patent_1947_page1.pngministers did for thirty years, was harmful to the office, I think 119637-MPrime Ministers Chrétien Martin and Harper have, with their appointments (Mmes Clarkson and Jean and Mr Johnston) put the system back on the right track. Although the duties of the GG are mainly ceremonial, there are, as the Letters Patent from King George VI in 1947, The English Constitution by Walter Bagehot and recent events have reminded us, real powers in the office. Our Westminster style, “responsible,” parliamentary democracy within the frame work of a constitutional monarchy makes the office of GG very important, indeed.

 

One of the strengths of our system is that the governor general has ready access to the best legal and political minds in Canada, beginning with her/his deputy, the Chief Justice of the Supreme Court of Canada. (S)he is not just a mouthpiece for the prime minister of the day.

One problem with the office is that the appointment process lacks transparency. The prime minister of the day selects and recommends to the sovereign who, unless there was something HUGELY wrong with the nomination, appoints that person. Canadians are, now, in the 21st century, more accustomed to the idea that heads of state and heads of government ought to be elected. But the GG cannot, in my opinion, be popularly elected without running the very real risk of politcizing an office that depends, for its constitutional duties, on being apolitical ~ above petty, partisan politics. But the process can be more open … perhaps the House of Commons, representing all Canadians, in their communities, should, every few years, strike a committee, at the behest of the prime minister, to nominate candidates (say seven of them from amongst the Companions and Officers of the Order of Canada and the Commanders of the Orders of Military and Police Merit) then, perhaps the Senate of Canada, representing Canadians in their provinces and territories, should vote that list “down” to three candidates and then the PM should recommend one to the monarch. The Germans have a system in which a Federal Convention (Bundesversammlung) which mirrors the parliament elects the president by secret ballot. In India the President is indirectly elected (by the parliament) for a five year term. Both a successful federal democracies.

The idea of parliament selecting the head of state is not new; it was central to the Glorious Revolution of 1688 and, in fact, it goes back to Anglo-Saxon times when the Witan (also Witenagemot) sometimes (often?) selected the king from amongst the notables of the kingdom.

The Senate

uploaded-by-malcolm-mayes-email-mmayesartizans-com358e0e5fce32a1656342f1e47ddf5f5416The Senate of Canada is, as I explained yesterday, an essential legislative element in a federation like Canada. It cannot be or, at least, should not be abolished. In this Premier Brad wall is wrong, even if we can all understand why he is frustrated. What is clear is that almost anyone can select better people to serve in the Senate than did most prime ministers going all the way back to the Great Sir John A Macdonald, himself. The Senate of Canada is in need of reform … major reform and soon.

Prime Minister Justin Trudeau’s reforms ~ appointing so called independent senators ~ is not enough, and, as David Akin points out, “By insisting,” as Prime Minister Trudeau does, that “these and future senators act independently, voters lose the last slim means by which an electorate can hold senators to some account … Trudeau was right,” Mr Akin goes on, “on this: The hyper-partisan approach of too many Conservative senators was a problem. But it is not the biggest problem of the Senate. The big problem is that senators are unelected and unaccountable.

The first thing to do is to make it necessary for all senators to be elected, and therefore accountable, somehow or other, by their provincial or territorial electorates.

The three small territories (Nunavut, pop: 31,000±; Yukon, pop: 35,000±, and Northwest Territories, pop: 41,000±) all should have one senator each selected, somehow, by the legislative assembly, by the “consensus” politics that is still in use there.

senateThe ten provincial Senate delegations should also be elected, perhaps en masse during each provincial election or perhaps in Ontario and Quebec in two or even three “tranches” also during provincial elections. Senators should, in their elections, be broadly representative of the provincial legislature ~ perhaps by being elected on a PR (list) system. It should be up to each province to decide how to elect its senators but the PM should promise not to recommend any person to be a senator who a) is not elected, and b) upon being elected does not give the PM a signed letter of resignation effective the next provincial election.

To start the ball rolling the prime minister should write a letter to each senator inviting her or him to resign when the writs are next dropped in her/his province. Not all will agree, of course ~ it took the Americans 20 years (back about 100 years ago) to get from an appointed to an all elected senate. But, many will and all must, eventually retire and then their replacements can be elected.

The prime minister should also explain and “sell” his plan to the provinces. Some may not want to elect senators: fearing that an elected Senate will weaken their premiers’ influence in Ottawa. The prime minister cannot, I think, refuse to recommend senators from any province but (s)he can recommend senators who are very likely to be hostile to the sitting provincial government and that, alone, may be enough to make provinces come on side. But I really think that most Canadians will favour an elected Senate and so all premiers will be forced to agree … eventually.

The second step is to convene a constitutional conference with Senate reform as the first on the agenda.

On the top of the federal government’s “wish list” should be to offer first nations some senate seats to recognize that they, too, are constituent “partners” in Confederation: one or two each for the (periodically) elected representatives of the Assembly of First Nations,  the Inuit Tapiriit Kanatami, and the Metis National Council.

The next step should be to deal with “equality.” It is unlikely that provinces will agree to absolute equality, à la the USA where tiny Wyoming (585,000+ people) has two senators as does gigantic (38 million+ people) California … not quite the 100:1 ratio of ON to PEI but, at 65:1, close enough. If we cannot agree on real equality (say seven or eight senators per province) then, perhaps a three tier system: 20 senators for each of ON and QC, 10 each for AB and BC and, say, four or five each for the remaining six provinces.

Finally the prime minister and premiers should agree on what powers the reformed, elected Senate should have and what (budget bills, etc) should remain “off limits” to it. The PM should make a statement, starting a constitutional convention, indicating that he will select ministers from the Senate for portfolios where the federal government intrudes into areas (§92 to 95 of the Constitution) of provincial jurisdiction.

An elected Senate will complicate both federal and provincial politics.

An elected and effective Senate will not necessarily have a majority from the same party as the prime minister and the government in the House of Commons. the PM will have to negotiate with the Senate to pass legislation but, perhaps, the constitutional conference will craft amendments to the Constitution that will limit the Senate’s powers to defeat e.g. money bills or confidence motions which have passed the House of Commons.

In the provinces the selection of senators might influence how voters decide on their provincial government. If one party’s “list” of senate nominees is  bad then voters may vote against that party, if, on the other hand, one party nominates an especially popular person for a senate seat then (s)he may have “:coat tails” that others can ride to electoral victory.

An elected and effective Senate will, in other words, make Canada a more interesting political place as well as a more democratic one.

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