It was recently brought to my attention that the Manitoba Attorney General’s Factum in the Senate reform reference before the Supreme Court of Canada, which was filed on August 27, 2013, contained a significant argument about the incompatibility of a fixed term of appointment renewable at the whim of a government, with the independence of the appointee. The argument referenced the possibility of fixed, renewable terms for senators, but its pertinence for adjudicators appointed to judicial tribunals is apparent.
The Factum’s argument concerned in part the Federal Government’s question as to whether it was within its constitutional rights to reform significant aspects of the Senate’s structure through unilateral legislation by Parliament. One of those suggested reforms was the amendment of the term of appointment for senators, possibly converting the appointments to fixed, or fixed renewable terms – appointments which we in the administrative justice system know to be routine features of the appointments of adjudicator members of judicial tribunals.
The Manitoba AG’s Views on the Independence Implications of Renewable Fixed Terms
In arguing against the Federal Government’s claim in this respect, the Manitoba AG took pains to demonstrate how serious an impact this would have on the independence of senators and, therefore, on the Senate’s role in providing its independent, sober second thought. On this issue, the AG’s Factum said this (footnote references have been deleted):
13. Returning to the issue of term limits, this Court recognized in the Upper House Reference that term limits might impair the functioning of the Senate as a body of sober second thought. It is difficult to draw a meaningful distinction between term limits of eight, nine or ten years or any of the other options set out in sub-paragraphs (a) – (d) and (f) of [the reference question]. The ultimate concern must be ensuring that the role of the Senate as an independent body is not impaired. Those that are called upon to serve the public in the important role of Senator must be free of any perception that their decision-making is motivated by outside influences. Those that fulfill this role almost always serve until the end of their formal working career. Terms limits of any length alter that reality and may lead to the perception that decisions could be influenced by the desire to garner favour.
14. Term limits raise the possibility of seeking the government’s favour in order to receive a benefit. Question 1 (e) [of the Reference] contemplates one such benefit being renewal for a second term. Since renewal would be directly related to finding favour with the government, allowing for renewable Senate terms would profoundly affect independence. Thus, such an amendment would impair the functioning of the Senate since its independence could not be guaranteed. There are numerous other benefits that could be bestowed on a Senator at the end of a fixed Senate term including ambassadorships and appointments to various boards and tribunals. The Constitution guarantees tenure to age seventy-five so the public can have some assurance that decision-making is free of these considerations. (Emphasis added.)