As former Senate leader James Cowan prepares to leave the Upper Chamber, he’s warning that major reforms introduced by Prime Minister Justin Trudeau to lessen partisanship threaten to transform the legislative body into a passive advisory panel.
Sen. Cowan (Nova Scotia), who will step down on Jan. 22 upon reaching the mandatory retirement age for Senators, cautions that the disbanding of the government Senate caucus by Mr. Trudeau (Papineau, Que.) and the absence of partisan affiliations of new appointees could conspire to make the Upper Chamber a significantly less effective institution.
“We need to organize. You get more done if you work with other people. For me, that means that Senators will inevitably, and should be encouraged, to work in groups,” he said in favour of the Senate remaining structured as a Westminster-style legislative body like the House.
Sen. Cowan, an accomplished attorney in his native Halifax prior to his tenure in Ottawa, was nominated for the Senate by then-Liberal prime minister Paul Martin in March 2005. Unofficially, he’s already entered retirement from the Senate as the Upper Chamber will not resume sitting until after he’s required to resign.
Sen. Cowan was appointed leader of the Senate Liberals, and hence, leader of the official opposition in the Senate, in November 2008 by then-party leader Stéphane Dion (Saint-Laurent, Que.).
He was the party’s Senate leader when Mr. Trudeau stunned observers in 2014 by announcing that the Liberal Party had disbanded its Senate caucus, and members were now independents.
Sen. Cowan stayed on as Senate opposition leader, and continued to lead the new Senate Liberal caucus, made up of self-styled Liberal Senators, though with no formal connection to the party’s House caucus.
He remained as opposition leader until the Liberals took power in November 2015, though was not appointed as leader of the government in the Senate. Instead, the Liberals created the new post of government representative in the Senate, and appointed Peter Harder (Ontario) to the position. Sen. Cowan, though, remained as leader of the self-described Senate Liberals until this past June.
After assuming office, Mr. Trudeau introduced a new appointment process for Senators that sought to do away with the tradition of awarding long-serving party loyalists with seats in the Upper Chamber. The new process was touted as being independent and handled by an arm’s-length advisory body. The stated goal was to reduce partisanship by appointing outstanding Canadians to the Senate that would owe no allegiance to any political party.
But Sen. Cowan sees these changes as a threat to the function of the Senate, echoing complaints from critics that the new set-up, marked by surging numbers of non-affiliated, independent Senators, will make the institution less dynamic and effective.
He sees the reforms as potentially undermining the nature of the chamber, which he maintains is defined in the Constitution as a legislative body tasked with passing laws.
Rather than disbanding caucuses in the Senate, the intent should be to ensure that members are “independent from outside direction,” he said, emphasizing that the Senate remains a legislative body tasked with passing laws, and shouldn’t morph into some sort of “council of elders.”
Conservative Claude Carignan (Quebec), who currently serves as leader of the official opposition in the Senate, echoes the views of his soon-to-be retiring colleague.
“We are on the same page that we have a Westminster Parliament system, and we have to make sure that…the government will not abolish the opposition in the Senate,” he told The Hill Times.
“The danger is to transform the Senate into a big advisory committee. We have to make sure that in our will to improve the Senate we will not…destroy completely the system.”
Sen. Carignan described Sen. Cowan as a “great Senator [and] a great man,” saying the two worked closely in their respective leadership roles over the last years to improve the Senate, citing, specifically, work to bolster transparency and accountability following the headline-grabbing controversy over questionable expenses claimed by Senate members.
Amid the fallout, he said the two men realized that they needed to change the rules and administration of the Senate to restore confidence in the chamber.
Sen. Carignan listed reviewing Senate administrative rules, changes to the Upper Chamber’s administration, and strengthened transparency measures, such as listing expenses online, as collaborative efforts undertaken to restore confidence in the legislative body.
“When you have to work in a crisis you have to work together in full confidence. You have to trust a handshake [as] a contract. And it was like that with him,” he said of Sen. Cowan.
“He’s a very smart [and] strong man. He imposes respect; he was a leader, and that was no accident.”
“I will miss him and the Senate will miss him.”
Citing changes to improve accountability and transparency, and the generally more open tone emanating from the Senate, Sen. Cowan said the Upper Chamber is a better place than the one he first set foot in 12 years ago.
“I think it’s due to the [work of the] majority of Senators to change the way we do things,” he said, noting that in terms of communications, he believes the Senate is being “more proactive” in telling its story.
Cowan points to genetic non-discrimination bill as major achievement
Reflecting on his nearly 12 years in office, Sen. Cowan lists off his public bill (the Senate version of a private member’s bill) prohibiting discrimination based on genetics as one his proudest accomplishments.
The legislation won Senate approval with bipartisan support last year, and was shepherded through the House of Commons by sponsor Liberal MP Rob Oliphant (Don Valley West, Ont.).
Most notably, the bill would protect Canadians from losing out on insurance coverage and employment opportunities from the results of a genetic test, which can help identify dangerous genomic mutations that increase the likelihood of contracting potentially serious diseases.
Insurance industry representatives say the bill would limit their ability to compile useful health information.
While it was going through the House, Justice Minister Jody Wilson-Raybould (Vancouver-Granville, B.C.) unsuccessfully pushed for changes because she worried that the bill would be declared unconstitutional on the grounds of provincial jurisdiction over the insurance industry.
However, Liberal backbenchers and opposition MPs dismissed those concerns and passed the bill, with members of the House Justice and Human Rights Committee only adding one amendment that Sen. Cowan portrayed as minor.
As a result, the bill will return to the Senate.
The amendment was put in place to ensure changes prescribed to the Canadian Human Rights Act would be preserved should the government’s Bill C-16, which also reforms the act by adding gender identity and gender expression to the list of prohibited grounds of discrimination, pass into law.
It was necessary because the bills amend the same part of the act, though The Hill Times reported that the possible amendment could have been made to C-16 instead during its Senate study, as it’s currently before the Senate at second reading.
It would have similarly sent that government bill back to the House as a result.
Senator Art Eggleton (Ontario), a former Toronto mayor and fellow Martin appointee, will assume the mantle of sponsoring the bill in the Senate when it returns, according to Sen. Cowan.
In addition to the anti-discrimination bill, he listed leading the Liberal opposition to the Harper government’s Bill C-377 that introduced controversial finance disclosure rules for unions, and participating in the heated debate about assisted dying legislation as highlights from his time in office.
The Trudeau government has since announced that it plans to repeal Bill C-377.
Now that he’s leaving the Senate, Sen. Cowan said he’ll look to continue engage in the debate on assisted dying, and remain involved on issues surrounding the intersection of criminal law and mental health, and post-secondary research.
He’ll also remain on several advisory boards and maintain an office and association with prominent Halifax law firm Stewart Mckelvey.
“I’ve still got some things I’m working on, and I’ll continue to do that,” he said, adding that he’ll miss the great people he met in office, including his colleagues and those that have testified at Senate committees.
“I anticipate a busy retirement.”
The Hill Times