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Senate 2.0: Back to life, but struggling for legitimacy

Evan Solomon on the renaissance of the Senate. (It’s complicated.)
(Sean Kilpatrick/CP)
(Sean Kilpatrick/CP)

Politicians have been trying to pull the plug on the Senate for years, so the current debate about assisted death is nothing new to the Red Chamber. The malignant expense scandal and the attendant seizures of the Mike Duffy trial left the Senate for dead. The government’s legislation on doctor-assisted death is, ironically, bringing the Senate back to life, this time not as a flunky to Parliament, but more like a Frankenstein creature.

“We are in a new era,” says Senate Liberal Serge Joyal, a constitutional expert who has already signalled that he believes the Liberals’ new assisted-death legislation is too restrictive and won’t be compliant with the Supreme Court’s reading of the Charter. “We are no longer a block of parliamentarians who just follow the cloud of the leader.”

He’s not alone. James Cowan, the former Liberal leader in the Senate, invoked Justin Trudeau’s 2014 expulsion of every Liberal member of the upper house from caucus, in echoing Joyal’s liberated stance. “When the Prime Minister cut us loose, he said he wanted the Senate to be more independent and we will hold him to that.”

Even on the other side of the aisle, the force has awakened. Claude Carignan, the former Conservative government leader in the Senate, told me it will now be much more difficult for this government to pass its own legislation. “There will be more amendments for sure, and since the Liberals don’t have the numbers to invoke closure of debate, things could be very difficult.”

Hearing all that, Mr. Trudeau?

Trudeau thought he was solving the problem of partisanship with his independent senators, but the real problem continues to be one of legitimacy. “I don’t think elections are the only test of legitimacy,” argues Sen. Cowan, as if decades of debate over the Senate’s relevance never happened. “Judges are not elected and many boards are not elected and they all function perfectly well.”

But legitimacy comes from the perception of usefulness, and so far senators have done a terrible job proving they are useful to Canadians. Cowan and Joyal believe that a more activist, independent Senate will prove their efficacy to Canadians. Maybe, but it may backfire. The public has little tolerance for unelected officials holding up the legislation of elected MPs.

Related: Grappling with the hardest questions about assisted death

To make matters worse, Senate administration is now a hot mess. Senators I spoke to say they are frustrated and bewildered by the lack of clarity. While Trudeau has appointed the widely respected Peter Harder, a former bureaucrat, as his government leader in the Senate, he’s rendered him powerless. Harder can’t whip a vote. He has no caucus. He has no deputy. He can’t even secure the $850,000 office budget the former government Senate leader, Carignan, had at his disposal. “He is a general with no army and no troops behind him,” Joyal told me candidly. “We have never seen this in 147 years.”

Even Harder himself is at a loss to explain how the new system is going to work effectively. “I think it will be easier in practice than in theory,” he told me with a sigh. He hopes—and it’s a big hope—that all the talk about independence and partisanship will somehow give way to everyone’s better angels. “The biggest tools I have are transparency and goodwill,” he said. “We have to appeal to the wide and deep feeling of wanting to make this institution one that is respected by Canadians.”

Harder knows it’s going to be a long process to change things. Trudeau will eventually name enough independent senators to gain a majority in the upper chamber, but then, who is to say the new senators will accept the conventional role of making cautious changes? The truth is, every senator knows they have an insurance policy against public anger. Abolishing the Senate is a constitutional riddle no one can solve, so senators are free to test the limits of their independence.

Watch what happens on this assisted-death bill. Harder very much wants to meet the deadline of June 6 to pass the government bill, but many senators think the bill is too restrictive, while others believe it’s too permissive. “You could have the weird situation where most senators oppose this bill, but for exactly the opposite reasons,” Carignan told me.

Politically, Liberals may believe that puts them right smack in the middle, which is where they like to be, but it may have the unanticipated consequence of killing their own bill. In 1989, the Senate dumped the abortion bill, so we now live in a country where the absence of law on abortion is the de facto law. Will it be the same for assisted death?

If the newly remodelled Senate proves a prudent balance for the executive branch and usefully defends the Charter, maybe the Senate re-establishes its relevance. But if it becomes a grandstanding body that is merely obstructive to the will of Parliament, we may well look back to the Duffy trial as a quaint time, when all we worried about were a few bucks spent on Swiss Chalet meals—not matters of life and death.