As you have probably already heard, a few days ago the leader of the Liberal Party of Canada dropped a wee bit of a Senate “bombshell”, by expelling all 32 Liberal Senators from the Liberal parliamentary caucus. It was Mr. Trudeau’s first step towards attempting to “reform” the Senate, a topic that has been discussed quite extensively in Canadian politics for quite some time now. Perfect timing for us, really, as we were just getting to this final topic in our Senate series. So…shall we?
Although it seems that the issue of the Senate has been particularly popular of late, in reality, the question of reform has been a fixture in Canadian politics since our confederation in 1867. In the past thirty or so years alone, there have been some 26+ proposaIs for Senate reform. Beginning as early as 1874 and 1909, the selection process was under scrutiny. In 1965, senators’ terms were changed from life appointments to mandatory retirement at age 75. In 1982, as part of the repatriation of the Constitution and the creation of the Charter of Rights, the Senate was given a qualified veto over certain constitutional amendments.
This was also the time that the whole idea of the “Triple-E” Senate really came to the fore. The three Es stand for: elected (a vote system in each province), equal (equal number of senators for each province) and effective (primacy of the House of Commons for the adoption of bills, Senate veto on constitutional amendments, certain appointments and certain exceptional Crown powers). More recently, the Meech Lake Accord would have required the federal government to choose senators from lists of persons nominated by provincial governments (but that failed). In 2006, numerous changes were introduced including that: senators’ terms be limited to 8 years, that the number of Senators be increased with a greater number to be given to the Western provinces, and that B.C. become its own division (all of that died on the order papers when the 2008 election was called). And these are but a few examples! In addition, there is always the argument that the Senate should be abolished altogether.
Before we delve into what such changes would mean, let us have a brief refresher of the purposes of our Senate. As you may recall, the founders of Confederation had at least three broad purposes in mind, and, in fact, some of these purposes were prerequisite to confederation.
Regional Representation: The Senate was to represent the various regions of Canada, with a view to protecting historical, linguistic and religious identities, as well as local economic interests and minority rights. A strict representation by population would give certain parts of the country a greater say than other parts of the country (the “tyranny of the majority”, as it were). So, because the House of Commons was to be governed by the principle of ‘representation by population’, smaller provinces demanded equal representation in the Senate. This is the very nature of federalism: opposing forces of unity on the one hand, and demands for regional diversities on the other.
“Sober Second Thought”: Under this function, the Senate was to review and revise legislation in order to provide a check and balance to the majority in the House of Commons and ensure that proposed new laws are in the public interest of the time. In other words, it is meant to be the proverbial “watchdog”. The Senate would:
- call the government to account for its actions,
- provide security for political dissent, and respect for minority rights, and
- curb any potential high-handedness or corruption on the part of the House of Commons (but without setting itself in opposition against the deliberate and understood wishes of the people).
An oft-cited example of the Senate fulfilling this function of sober second thought occurred in 1961, when the Government introduced a bill to remove James Coyne as Governor of the Bank of Canada. The House of Commons passed the bill without hearing from Mr. Coyne, but a Senate committee gave him an opportunity to defend himself. The Senate then adopted a report from the committee exonerating Mr. Coyne and recommending that the bill not proceed further. Within an hour of the final vote in the Senate, Mr. Coyne voluntarily resigned with his reputation and honour intact. People felt that the Senate had stood up to the government and given a senior public servant the chance to speak to both his own integrity and that of his institution.
Broader representation of citizens: There was a fear that having an elected Senate would result in just a second version of the House of Commons, “made up for the most part of citizens who have already made their mark in life [which] might in the end have over-shadowed the assembly, just as the Senate of the United States has over-shadowed [their] House of Representatives.” The founders wanted to ensure that other people, worthy for other reasons, knowledgeable in other areas, who might never choose to undergo the process of running for office (or may not have the funds to do so), would also have the opportunity to use their expertise in the governance of Canada.
Given the immensely important role of the Senate in the creation of our country, it is worth keeping these three purposes in mind when discussing reform.
Obviously, things can change, and, with time, they generally do. Maybe Canada, as a federation, has changed since 1867.. Have we changed? Or, are things like minority rights, regional representation, sober second thought, protection from tyranny, and broad representation no longer important t to us, or less important than they once were? If these values are still important to us, are we saying that the intended purposes of the Senate are not being carried out as they should be. If this is the case, should the role of the Senate should be strengthened to alter that situation? Alternatively, is there another way to preserve these values other than through the continued existence of the Senate?
As is often the case with important, country-defining topics, there is likely no simple – answer. The path of the discussions and the choices we make should not be fuelled by political rhetoric, emotional arguments, or financial considerations, but instead, by who we are and who we want to be as a country. And, if different areas of the country feel differently, about these issues, what might that mean for the future of our federation?
Let’s have a look at few of the proposals being put forth and the argument both for and against Senate reform.
Election of Senators: i.e.: voters from each province and territory would vote for the Senators to represent them. The main argument in favour of an elected Senate is that it would have far greater democratic legitimacy than the current appointed body, since, without some form of popular validation, senators do not have the legitimacy to oppose the House of Commons. In other words: election is the only legitimate form of representation. Another argument in favour of election is that it would result in more effective regional representation in the Senate, as elected Senators would be more directly accountable to the people who voted for them.
On the other hand, opponents of senatorial elections, are concerned that such elections might quickly become the partisan contests we already see for members of parliament, and a majority from one party could essentially control the Senate. In other words, Senators would lose the independence that they are supposed to have, resulting in complete partisanship. This is arguably not very helpful to the purpose of supposedly acting as a check and a balance to the government of the day. The evolution of the Australian senate, which has become a partisan chamber, is often used as an example in support of these arguments.
Finally, those who oppose senatorial elections note that the practice of appointing senators tends to result in a greater proportion of women and minority representatives in the Senate (which meet yet another of the stated constitutional purposes to the Senate).
There are those who argue that partisanship already exists in the Senate and that, even if elections are not a solution, the partisanship must be addressed. For them, a reform of the selection process appears to be more palatable than election. As we learned in a previous post, prime ministers often appoint senators who were members or clear supporters of their own parties. Perhaps that is what needs to be changed. What if, say, prime ministers could only appoint people who had never been members/supporters of their party? That would be fun! But perhaps impossible to enforce. Is there a different way to help ensure more neutrality? Some say that this issue of neutrality is what Mr. Trudeau, by cutting senators’ ties with the liberal caucus in the House of Commons, attempted to start addressing this week. A key question here: is a traditional vote really the only way to have representation and accountability? Or is there a way of mixing a voting system (in the House of Commons) with another (in the Senate)?
Limited Terms of Serving as a Senator: Recently, there have been several attempts to change senatorial terms to a maximum of eight years. The main argument in favour of a single term of eight years is that it is long enough to allow senators to acquire the experience needed to perform their duties while being short enough to allow a regular renewal of ideas and experiences. The opponents of such a limit argue that it would further strengthen the prime minister’s influence on the Senate. In fact, a prime minister who won two or three consecutive terms could end up appointing every senator. Those opposing limited terms also maintain that the current terms allow people of great experience and proven wisdom to make a significant political contribution in a climate that is less partisan than that of the House of Commons. Some even contend that the Senate’s institutional wisdom might be lost as senators might be more concerned about short-term issues they could achieve during their terms.
Abolition of the Senate: This is arguably the most extreme proposal for reform (and the one currently being supported by the New Democratic Party of Canada). One argument for this option is that it will save the government (and therefore all of us as taxpayers) a large amount of money. This is a particular concern for those who would abolish the Senate, as they tend to also be of the opinion that the Senate duplicates the work of the House of Commons (or, at worst, delays and obstructs it). Proponents also argue that this would be a great change in the direction of “democracy”, as senators are not elected and, true democracy can only occur when representatives are elected. Proponents also view abolition as a way to end the partisanship and patronage they believe they see in the Senate.
Arguments against this position are also varied. Firstly, abolition (without any accompanying changes to the House of Commons) essentially eliminates all of the constitutional protections the Senate is meant to provide as per the founding fathers. Of particular concern to those who argue against this option is the fact that it would result in Canada becoming a unicameral system (meaning: “one house” – the House of Commons), as opposed to the two-house system (which provides the “watchdog” protection). That would have many lasting effects on all aspects of governance, but a key one is: what happens if a tyrant becomes our prime minister? It would not be the first time that someone who, although sounding good at first, turned out to be very dangerous once democratically elected into power. The concept of absolute power corrupting absolutely is not exactly uncommon. Is that a chance we are willing to take? Even if we are not dealing with a tyrant, what would happen to minority rights in a unicameral system? Are there safeguards that can be built into a unicameral system that would replace the safeguards of the bicameral system? Naturally, there are those who would argue that recent times have brought partisanship into the Senate and that this, too, puts the safeguards at risk, but is abolition the only, or even the best way to address this concern?
Quite a bit to think about, isn’t it? But wait… there’s more!!!
Many of the Senate functions and rules are written in our Constitution. . Why does that matter? Well, because changing the Constitution is no easy feat. In fact, t even the Government isn’t sure what it can or cannot do on its own and has referred certain questions to the Supreme Court of Canada.. Since certain kinds of changes might require constitutional change, this makes the whole issue of Senate reform even trickier.
The question has arisen of whether reform can occur without constitutional change. Just change other laws (that don’t require all the consultation); or take some of the “conventions” (i.e.: political customs that people don’t actually have to follow) around the Senate and make them law. Such an approach could be much less time-consuming and expensive, and potentially much more flexible than trying to change the Constitution. Some commentators point to this week’s action by Mr. Trudeau as a step in this general direction. Arguably, given the current economic climate, the fiscal reality of just how much this process will cost might need to be a significant consideration in deciding how to process.
These are not all of the Senate reform proposals that have ever been suggested; nor have we presented all of the arguments on both sides. But all of this is meant to be start… and it can certainly serve to begin, and to encourage, a thorough deliberation of the issues.
This is your country, our country: we should honour it enough to really think about what we want it to be, and how we want to get there. That is both our right and our responsibility as citizens.
For more information on what exactly is a caucus, see here.
For more information on the history of the Senate and on Senate Reform see:
Joyal, Serge. Protecting Canadian Democracy: the Senate you Never Knew. McGill-Queen’s University Press: Montreal, 2005.
Reforming the Senate of Canada: Frequently asked Questions (Background Paper). Publication No. 2011-83-E. Library of Parliament.
 Robert A. MacKay, The Unreformed Senate of Canada (Toronto” McClelland and Stewart, 1963), p. 31 (MacKay).
 Bi-cameral parliaments and legislatures are a feature of most mature democracies, certainly of the “G” countries (i.e.: industrialized states). There are quite few federations with a unicameral national legislature (for example: the United Arab Emirates, St. Kitts and Nevis, and Micronesia).