Beware predictions of a Senate-created constitutional crisis

Here lurks partisan motives

Conservatives are predicting that the Senate is likely to instigate a “constitutional crisis” when/if it is confronted with a Conservative government under Pierre Poilievre.

The premise is that while the Trudeau government reformed the appointment process to eliminate partisan patronage, the prime minister has nonetheless spent the last nine years appointing like-minded (ideologically-speaking) members who are likely to abandon their well-established record of deference to government objectives when faced with a right-wing government.

There is an important kernel of truth in this argument. As I wrote in my book on the newly reformed Senate, Constitutional Pariah:

Most of the senators appointed since 2016 appear to be people who could comfortably sit on the centre-left part of the political spectrum. If there is a lack of ideological diversity - whether it results from self-selection bias among those applying to the [appointments] process, the advisory board’s shortlisting process. or the prime minister’s final selection - it is a legitimate object of concern. And it raises the the prospect that the Senate might become obstructionist in the face of a more conservative government, something that will threaten its legitimacy if it begins defeating or unduly delaying legislation on ideological grounds.

But there are some important things to unpack here. [Note: and here I remind readers that I provided unpaid, non-partisan policy advice to the government when it was creating the new merit-based, non-partisan appointment process, which included drafting the design for the advisory committee on appointments]

The claim advanced by people who opposed the 2016 reform is that it is actually partisanship that prevents partisan obstructionism (yes, really). This is premised on the idea that party discipline is what helps ensure the Senate knows its place as the chamber of “sober second thought” rather than the elected, representative House, and that it will forgo activism so that the party to which senators are loyal will not face the wrath of a unhappy public.

There are a couple of important reasons this argument is ultimately unconvincing. First of all, the old patronage Senate had more than its share of periods of intense partisanship and obstructionism. Perhaps most notable in the modern period was the Mulroney era, where Senate Liberals blocked the GST bill, forced an election on free trade, played ping-pong with the House of Commons on a drug patent bill, delayed unemployment insurance legislation, and defeated a compromise bill on abortion. This was a tense time, and in some ways was not a great look for the Senate, but no one would accurately describe any of this as amounting to a “constitutional crisis”.

Second, there are good reasons to think the independent senators are more likely to keep the Senate’s proper role in mind when they eventually deal with a government of a different ideological stripe precisely because they are not consumed by the “home team” mentality of extreme partisanship that has infected Senate caucuses in the past (and that utterly dominates the ineffectual House of Commons).

That said, there is every chance the Senate might break its ongoing streak of deferring to government bills. But our assessment of what to make of that depends on the context.

Why does context matter? Because there are, in fact, legitimate grounds for the Senate to exercise its powers and, on rare occasions, defeat government bills. These include blatantly unconstitutional bills or those that represent a quasi-abuse of the legislative power of Parliament.

And given Poilievre’s recently-stated willingness to employ the notwithstanding clause, it would be naive not to treat some of the predictive doomsaying from conservatives about the Senate as little more than a pre-emptive attack on the legitimacy of it exercising its powers to prevent rights-violating laws.

It is difficult not to be a bit cynical about Conservatives’ claims of Senate pre-crimes. The party has an express desire to return the Senate appointments process to the grubby patronage of the past, where the Senate was a reward for partisan service and little more than a rubber stamp for the government that gained partisan control over it. To be blunt, it’s hard not to think that they’re concerned that the independent Senate that exists today won’t let Pierre Poilievre treat Charter rights like toilet paper.

But let’s drop the cynicism for a moment, because it is undoubtedly true that the independent senators need to tread carefully. If they are too dogmatic in their principles, if they are indeed led too much by their apparent ideological proclivities, then suddenly every government bill might look a threat.

The Senate cannot allow itself to become the frenzied opposition. That would not be any more “independent” than an upper house of government lackeys. The next government, whether it arrives in 2025 or later, will be entitled to set the legislative agenda, to pass budgets, and to enact legislative promises established in its campaign platform. If the Senate is going to ever defeat a government bill, it best be damned sure that bill flagrantly violates the constitution or is otherwise grossly repugnant to democratic principles. If not, the Senate will undermine whatever legitimacy it has gained over the past decade, at which point it will find itself unable to serve as a meaningful safeguard.

With that warning made, reasonable observers must resist the premise that the Senate only exists to greenlight everything before it. As a chamber of sober second thought, it proves the most useful as a body that offers suggestions (via amendments) to improve bills, and as a check on the worse impulses of the elected House. A pre-election campaign by conservatives to delegitimize this role should be regarded with cynicism.