Whither the Canadian Senate after the Federal Election?

The sleeper issue in this federal election? Why, reform of the Senate of Canada, of course!

I jest, although it does tell you something about its constitutional importance that, when fabricating a wedge issue, the Harper Conservatives harp on the Red Chamber’s supposed institutional failure. Yet, during an election campaign, when pressing national issues are discussed and debated, the relative strengths and weaknesses of political party programmes weighed in the balance, there is general silence concerning the future rôle of the Canadian Senate.

A cursory examination of the three main parties’ platforms reveals what one would expect:

The governing Conservative Party recycles its message from elections past:

• re-introduce and pass legislation setting term limits for senators;


• continue to encourage the provinces to work with us to establish a democratic process for selecting senators;


• appoint those who are selected through democratic processes; and


• in provinces that do not take us up on our offer, we will fill Senate vacancies with individuals who support our Senate reform goals, including our goal of an elected Senate. (see pages 62-63)

Apart from its patronising tone and the effrontery of speaking of the ‘Stephen Harper Government’ — it’s ‘Her Majesty’s Government’, thank you very much! — throughout the document, this approach to understanding the Senate is decidedly ‘un-conservative’. As Sir John A. Macdonald argued during the Confederation debates in the legislature of the United Province of Canada:

There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people. ¹

Macdonald’s views on the Senate can be usefully augmented by reference to his amanuensis and early biographer, Sir Joseph Pope:

It is true that, at an early period of his career, he favoured an elective Upper House, but eight years’ experience of this system was sufficient to change his views, and to convert him into a firm upholder of the nominative principle. Every year since Confederation strengthened the conviction of his matured judgment, and showed him more and more clearly the advantages of the nominative over the elective system. To his mind the chief among the objections to a Senate chosen by the popular vote, was the ever-present danger of its members claiming the right to deal with money Bills, and the consequent possibility of disputes with the House of Commons. The proposal that the provincial legislatures, whose members are elected for purely local purposes, should choose the senators to legislate on matters of general concern, was also objectionable, being opposed to the spirit of the constitution, which confined the local assemblies to a strictly limited sphere of action. He held that the system unanimously agreed to at the Quebec Conference had worked well, and should be undisturbed. A senatorship, in his opinion, was an important and dignified office, and a worthy object of ambition to any Canadian.²

No more need be written in comparing the principled Tory philosophy of yesteryear with its craven contemporary.

The New Democratic Party, meanwhile, stands by its pledge to abolish the Upper Chamber:

• We will propose the abolition of the Senate. All Canadian provincial legislatures have done this many years ago, abolishing their un-elected second chambers to the benefit of democracy.


• In the meantime, to limit Senate abuses, we will bar failed candidates and party insiders from being appointed to the Senate, and ban senators from fundraising for political parties. (page 23)

The provincial example has serious problems. While the Dominion Parliament is responsible for national issues that may not be the daily bread of the average voter, the provincial legislatures — as they pressed during the Confederation debates — are responsible for local issues that regularly affect their constituents. It may be assumed, therefore, by applying the principle of subsidiarity, that the provinces will receive far more popular scrutiny than the national government, and so in the latter case additional oversight is prudent. To take an American example, James Madison wrote in The Federalist, No. 46:

...the first and most natural attachment of the people, will be to the governments of their respective states. Into the administration of these, a greater number of individuals will expect to rise. From the gift of these, a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant: and with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments. On the side of these, therefore, the popular bias may well be expected most strongly to incline.³

As to the NDP’s second recommendation, it neglects to look at the quality of Senate appointees, but tars them at the outset as partisan hacks; though the second proposal to ban them from fundraising functions may have some merit.

Curiously, the Liberal Party platform is silent on specific Senate reform. Take it as you will; friends of the Senate, however, should be wary of interpreting it as tacit support, for Liberals would doubtless generate reforms ad nauseam were they to garner an electoral advantage.

So, the Red Chamber does not take precedence in the Canadian psyche of hot-button issues; that is reserved for the sputtering economy, the growing deficit and debt, and the uncertain provision of universal healthcare — with a dollop of Québec sovereignty and national unity thrown in for good measure.

Perhaps this sleeping dog should not be disturbed but, throwing caution to the wind, allow me to summarise quickly why the Senate reform that has marked this debate in the past — either for abolition or for elected senators — is bad for the Dominion of Canada.

First, to address the question of abolition: As G.K. Chesterton once opined about the papacy, if the Senate of Canada didn’t exist, it would have to be invented. I refer, of course, to the Senate’s most widely accepted virtue, that of serving as a chamber of sober second thought. Everyone admits — privately, if not publicly — that the House of Commons does a poor job of vetting legislation. It is a partisan chamber where too often rhetorical enthusiasm overtakes reasoned discourse.

In addition, due to a plethora of legislative initiatives and truncated working days (can anyone say ‘prorogation of Parliament’?), the House has too much work for too few days (not that limiting MPs’ time on Parliament Hill is necessarily a bad thing, but that’s a different story). If there were no Senate, you can be sure that think tanks would be busying themselves devising structures and procedures &c. wherein prospective legislation would be scrutinised by disinterested experts for the national benefit. Fortunately, such a body already exists.

Now as to the Senate’s method of composition, an appointed versus an elected model. Canadians already benefit from the latter option, and it’s called the House of Commons. Were an elected system to be introduced into the Upper House, we would at best be duplicating an existing legislative function, without introducing an element of uniqueness — that is to say, of ‘shaking up the system’ — to our Parliamentary system. As Benjamin Disraeli observed, ‘Assuredly I cannot understand how an efficient senate is to be secured by merely instituting another elective chamber, the members of which, being the deputies of their constituents, must be the echo of the Lower House’.⁴

Worse, an elected Senate would encourage several bad things: Popularly chosen senators would challenge the accountability of the Lower House. Under current constitutional arrangements, their limited numbers vis-à-vis MPs would mean that their electoral legitimacy could possibly be greater, as they would represent far more constituents than their Commons counterparts: Ontario’s 24 senators versus its 106 MPs, for instance. The prospects for gridlock are even more ominous when considering the Senate’s shared coterminous powers with the Commons, an equality of legislative authority (save for the introduction of money bills). Partisanship would also undoubted rise.

Another disincentive of a photo-copy Senate is in the make-up of its members themselves. The ideal chamber is a body of appointed men and women who bring a wealth of expertise and life experience to the legislative process, most of whom would never have chosen otherwise to enter political life. Plurality thus becomes an option for the Senate that is introduced in the House by truncating the liberty of voter intention (either through closed nomination processes or quotas).

It has been suggested that senatorial provisions be the purview of the provinces (as the Conservatives have done), as in the American model. But this suggestion goes against the very spirit of Confederation, as Macdonald noted. The U.S. Constitution provided for state appointments because the states were sovereign entities, and their appointment of senators to Washington cemented their unique ‘confederated’ agreement.⁵ This sovereignty also accounts for the equal number of state representation in the Senate — the lopsidedness of which was redressed by the rep-by-pop requirements of the House of Representatives, addressed in The Federalist.⁶ This is one of the more egregious errors of Canada’s Triple-E Senate campaign: with Prince Edward Island enjoying equal stature with Ontario in the Red Chamber.

In passing, let it not be thought that I am a sanguine supporter of the existing Senate status quo and refuse to entertain the notion of reform. There are two easy improvements that I heartily endorse, which do not entail the thorny issue of constitutional amendment. They do involve the exercise of prime ministerial integrity, and so are at the whim of political character.

The first measure I would propose is for the age of appointment to be raised in practice. A current criticism is that the maximum duration of appointment could be as long as forty-five years, under the legal parameters of summons at thirty years of age and mandatory retirement at seventy-five. For reformers who clamour for limited terms, this must be galling indeed. The original terms were set when life expectancy was much shorter, and the emphasis on expertise and experience not so great (‘property ownership’ being the key criterion). Let the prime minister use his prerogative, then, and recommend for appointment worthy men and women of no less than fifty years of age, as an example. Most will have reached the apex of their professional careers and will welcome a period of disinterested public service.

The second measure proposed will probably find widespread approval, too, but because it touches upon the very partisan nature of Canadian politics, may be more difficult to enact. It is for the appointment of Canadians who will add value to the revising abilities of the Senate and not according to party affiliation; who will bring more to the Red Chamber than a party membership, but will be conspicuous for a plethora of talents to be a potent force in legislative scrutiny and public policy development. Yet, almost from the institution’s birth, it has been a sinecure for political fixers and bagmen, a place for the prime minister to repay past party devotion with future acquiescence to party needs. This must stop.

So, whither the Senate of Canada? Its foundation is strong and its structure still ‘fit for purpose’. But it will remain so only if the public appreciates its constitutional responsibilities in Parliament and charge their representatives with its ongoing care and to maintain its relevance.

The Red Chamber remains an important guarantor of the people’s liberties; in turn, Canadians must defend its ability to be an independent voice for the commonweal.

See Advocacy for Appointed Upper Chambers (pdf file) for more information.

ENDNOTES

1. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, 3rd Session, 8th Provincial Parliament of Canada (Quebec: Hunter, Rose & Co., 1865), 36.

2. Joseph Pope, Memoirs of the Right Honourable Sir John Alexander Macdonald, Volume II (Ottawa: J. Durie & Son, 1894), 235.

3. Alexander Hamilton, John Jay, and James Madison, The Federalist, The Gideon Edition, G.W. Carey and James McClellan, eds. (Indianapolis: Liberty Fund, 2001), 243.

4. Benjamin Disraeli, ‘Vindication of the English Constitution’, in Whigs and Whiggism: Political Writings, William Hutcheon, ed. (New York: Macmillan, 1914), 196.

5. See The Federalist, No. 43, 228.

6. See The Federalist; e.g., No. 58, 300-05.