Let’s get this out-of-the-way. This post isn’t about Senator Joyce Fairbairn. As you may have read, Senator Fairbairn was diagnosed, in February of this year, as being legally incompetent owing to dementia brought on by Alzheimer’s disease. Obviously, Senator Fairbairn’s illness is a sad outcome for a woman who, all joking about senators aside, has spent a good chunk of her life serving her country. This post isn’t about her.
This post is about the people who allowed her to continue to sit and vote in the Senate for months after she had been diagnosed as being legally incompetent. In April of this year, Leonard Kuchar, the chief of staff to Liberal Senate Leader James Cowan, apparently, co-signed a power of care that made him an agent acting on her behalf. He, presumably, knew, that she had been declared legally incompetent, and it beggars belief that he didn’t tell his boss. Reading between the lines of some of the public statements by other Liberal Senators, it seems likely they knew as well. And yet, no one did anything. What’s more, there’s no evidence that they had any intention of doing anything about the situation. Had it not been for Senator Fairbairn’s niece writing to clerk of the Senate telling them that she would not be returning, no one would be any the wiser.
Were they in the wrong? Technically, there’s nothing in the Constitution which says you have to be legally competent to be a senator (a cynic might say that this is obvious). It seems there is enough ambiguity on the point that the Senate is seeking legal advice on the issue. Some have suggested that just because she was legally incompetent doesn’t mean she was incompetent to review and enact legislation (see, for example, Liberal Senator Jim Munson and the representative of the Alzheimer Society of Canada in this piece). And let’s be fair to the Liberals, they may have figured that one senator wasn’t going to make a difference in the greater scheme of things, and that it would be kinder to let Senator Fairbairn continue to live the day-to-day life on Parliament Hill that she had lived, in one capacity or another, for half a century.
None of that excuses their actual conduct. It wasn’t up to them to decide that Senator Fairbairn could continue to serve as a Senator despite being legally incompetent. It wasn’t up to them to determine that she could continue to perform her constitutional role. It wasn’t up to them to decide that “one vote would not make a difference”. By doing so they did a disservice to Canadians, to the people of Alberta whom Senator Fairbairn served, depriving them of effective representation and service in the Senate. Moreover, their actions raise the suspicion (which may or may not be correct, but which is certainly reasonable) that they kept Senator Fairbairn in her post to keep one more Liberal Senate seat until 2014. If giving them the benefit of the dobut on that score, the decision to hide the extent of her illness was, at best, a serious misjudgement.
The minute the Liberals learned that Senator Fairbairn had been diagnosed as being legally incompetent they should have sought guidance from the Speaker or, failing that, the chair of the Standing Committee on Internal Economy, Budgets, and Administration, on how to proceed. If, as the Liberals suggest, she was sufficiently competent to continue to perform her role, to continue to serve her country and her constituents (all of which seems implausible – it’s troubling that there’s no record of her having spoken either in the Senate or in committee after her diagnosis), fine, then she might have been allowed to continue in that role. But that wasn’t a decision that should have been made by her friends or her party.
Moreover, it’s embarrassing to hear a Liberal Senator argue that one Senator doesn’t make a difference, or that legal incompetence isn’t a problem for a Senator. Is a Senator’s role so trivial that a person who is unable to manage their personal affairs and day-to-day finances can continue to do it? Good lord, do they believe that? Do they hold themselves in such low regard that they actually believe that individual Senators don’t matter? Maybe Senator Munson is so useless that he thinks HE doesn’t makes a difference, but I’m willing to bet that most of his colleagues think their actions in the Senate matter.
Even if a Senator’s vote doesn’t effect the outcome of voting, Senators are more than just trained monkeys who sit up and vote when their told (or does Senator Munsun believe otherwise?). Senators sit on committees where they often perform valuable work fixing legislation or researching issues that MPs don’t want to touch. They travel to their respective constituencies and help their constituents. I firmly believe that the Senate can and does play a useful role in our legislative process (its committees are often much more effective than Commons committees, for example), so you have no idea how mind-bogglingly frustrating it is to listen to a Liberal Senator implicitly denigrate that role.
When they learned of the extent of her illness, Senator Fairbairn’s friend and party should have disclosed that information to the powers-that-be in the Senate and let the chips fall where they may. They didn’t, and in the process they showed a profound contempt for their institution and the Canadians it represents.
Finally, the saddest part of this story is that, by not addressing her health issues when they became known, at a time when Senator Fairbairn’s retirement might have been handled in discrete matter respectful of her privacy, the Liberals ensured that Senator Fairbairn will be the butt of (callous) jokes by Senate critics for years to come. Liberal Senate leader James Cowan is right to say that Senator Fairbairn deserves privacy, but he has only himself and his colleagues to blame for the (predictable) publicity that has erupted around this story. Surely a friend and colleague who served her county for decades deserved better than that?
Update: Jonathan Kay cites an unnamed Tory Senator who alleges that Senators had know for years that Senator Fairbairn was no longer capable of performing her duties, but kept her in the Senate to (a) keep the Tories from appoint another Tory Senator, and (b) preserve her office budget for partisan purposes. You take an allegation like that, from an unnamed source, with a HEFTY grain of salt but, if true, the conduct of the people involved is despicable, certainly for the contempt it shows for the institution of the Senate, but especially for the disregard of Senator Fairbairn’s well-being.