The Canadian Senate Past and Present

Range of Options for Reforming the Canadian Senate

Specific Senate Reform Proposals

Non-Constitutional Efforts to Reform the Senate

Federal Political Perspective

The Canadian Senate Past and Present

Despite current criticism of the Senate, the Fathers of Confederation expected it to play a major role in the new Canadian nation. This was in keeping with their belief that Canada needed a strong central government. As one of the two houses in Parliament, the Senate was expected to play a key role in the following areas:

• Reconciling differences between English and French Canada
• Representing the regions and minority interests
• Serving as a check on the House of Commons.

Today, while the Senate has been criticized for failing in these areas, the expectations of what roles the Senate should perform have remained the same, with a few minor changes:

Representation of the propertied class. The Fathers of Confederation considered this important enough to make property ownership one of the qualifications for becoming a Senator. This is no longer considered important, and the property requirement has never been revised to reflect inflation.

Minority Representation. The Fathers of Confederation were primarily concerned with providing representation for Canada's French speaking minority, which formed a majority in the province of Quebec. However, since the Quiet Revolution, Quebec has pursued its goals through other mechanisms. The separatist movement aside, these have included pushing for greater provincial autonomy and ensuring Quebec is represented within government and Cabinet. Since the 1960's, discussions of minority representation within the Senate have focussed on gender and aboriginal representation.

Investigative Role. Today, Senate investigative committees undertake in-depth inquiries into a broad range of issues. Ironically, their investigate work means Senators are more likely to represent the interests of the poor and disadvantaged than the propertied class.

As for its legislative role, initially the Senate was more proactive in rejecting House of Commons legislation. Between 1875 and 1940, the Senate rejected several Commons-passed bills, including a 1926 Old Age Pension Bill. Between 1930 and 1940 alone, the Senate rejected thirteen pieces of legislation (Source: Parliament of Canada website). By contrast, in the 1990's the Senate rejected only two pieces of government legislation. It should be noted that the Senate has become more proactive in reviewing and suggesting amendments to a bill before it is introduced in the Senate. In addition, instead of rejecting a bill, the Senate can simply choose not to vote on it. Nonetheless, there is no doubt that their appointed status makes Senators reluctant to exercise their legislative veto.

Range of Options for Reforming the Canadian Senate

Proposals for reforming the Senate focus on structural changes to three major areas:

• Method of Selecting Senators
• Senate Seat Distribution
• Powers

(The current structure of the Senate is outlined in part I of this feature: The History and Structure of the Canadian Senate).

Proposals for changing how Senators are selected focus on two key areas:

• Should Senators be elected, or appointed by provincial governments?
• If elected, should Senators be indirectly elected by provincial legislatures, or directly elected by the public?

Arguments in favour of provincial appointment include the following:

• A strong, elected Senate is incompatible with the principle of responsible government, where the executive is dependent on the confidence of an elected House of Commons
• It would encourage intergovernmental relations to take place within Parliament, as opposed to private meetings between provincial and federal Ministers. As the 1978 Pepin-Robarts report states, it is a means "…of institutionalizing the processes of executive federalism…within the parliamentary process.."
• It would be easier to ensure Canada's ethnic and other minorities are represented in an appointed, rather than an elected, Senate.

Arguments in favour of directly electing Senators include the following:

• Being directly chosen by the public would give the Senate more legitimacy and popular support
• Greater public support would make Senators less reluctant to exercise their constitutional powers, and thus more effective
• Since the people in the region elect them, the public would perceive the Senators as being more responsive to regional issues

As for indirect election by provincial legislatures, many critics argue that it has all of the drawbacks and none of the benefits of either provincial appointment or direct election. On the one hand, it would not have the legitimacy or public support of a directly elected Senate. On the other hand, Senators could not claim to be representing the interests of provincial governments.

Most proposals for Senate reform include redistributing Senate seats. There is general agreement that there needs to be a more equitable seat distribution to reflect changes in Canada's demographics, particularly growth in the western provinces. Discussions in this area focus on whether regional representation should continue, or whether there should be equal provincial representation in the Senate. Arguments in favour of equal provincial representation in the Senate include the following:

• Many other federations have equal representation of constituent units in their second chamber.
• Canadians identify more with provinces than regions. For example, Albertans view themselves as being very different from British Columbians. However, both provinces are currently lumped together as part of the "west."
• Equal representation in the Senate provides a counterbalance to representation by population in the lower House. Any seat allocation that takes population into account (even if the smaller provinces are over represented) duplicates the system in the House of Commons. There is no institution where the viewpoints of the smaller provinces have equal weight with the larger provinces.

The main argument against equal representation is the extreme variation between provincial populations in Canada. The population difference between the largest province (Ontario) and the smallest (Prince Edward Island) is nearly ninety-fold. By comparison, in the United States, the population of the largest state (California) is only thirty-four times greater than the smallest state (Rhode Island). Furthermore, the fact that there are fifty states means these variations have less impact. Rhode Island is only one voice in fifty, as opposed to one in ten.

A final argument is that, if Canada adopts the principle of equal representation, it should extend to the territories as well as the provinces.

The Canadian Senate is not a confidence chamber: legislative defeat in the Senate does not lead to the resignation of the government. This is in accordance with the principles of responsible government and no proposal suggests changing this. Instead, the focus is on limiting the Senate's current powers. This is linked to changes in the process for selecting Senators. Both provincial appointment and direct election will give the Senate more legitimacy than the current system of Prime Ministerial appointment, with the probable result that Senators will be less reluctant to exercise their powers. Therefore, many experts feel these powers need to be strictly defined and limited.

• Should the Senate have an absolute veto over non-financial legislation, or should its powers be limited to a suspensive veto?
• What should the Senate's powers be with respect to money or taxation bills?
• Should legislation be divided into different classes, with the Senate's power depending on the class of the legislation? For example, one proposal requires a double majority of English speaking and French speaking Senators to pass legislation concerning linguistic matters.
• What should the Senate's powers be with respect to foreign treaties?
• Should the Senate have the power to ratify or veto federal appointments to national regulatory agencies and the Supreme Court?
• Should the Senate have the power to initiate legislation?

Specific Senate Reform Proposals

Efforts to reform the Senate fall into three distinct phases:

• Initial reform efforts in the fifty-year period following Confederation
• Renewed efforts to reform the Senate beginning in the 1960's
• Recent efforts to achieve practical changes that don't necessitate constitutional amendment

Prior to the Constitution Act, 1982, the provinces were not formally involved in the process of Senate reform. Changes to the Senate's structure required only passage through both Houses of Parliament, and final consent from Britain. Specific reform proposals date back to the late 1800's:

• In 1874, M.P. David Mills introduced a proposal for provincial appointment of Senators in the House of Commons
• In 1906, the House of Commons debated a proposal to limit Senators' terms to the life of three Parliaments
• In 1909, the Senate debated and rejected a proposal changing the selection of Senators to a combination of election and appointment. Under this proposal, two-thirds of Senators would be elected and serve seven-year terms
• In 1927, Senate reform proposals were discussed at the Dominion Provincial conference

(None of these proposals were passed.)

Renewed attempts at Senate reform came from a perceived need to make national institutions more responsive to regional concerns. The initial impetus came from separatist pressures in Quebec. Later, western alienation played a role. One major change was achieved in 1965, when Parliament set a mandatory retirement age of seventy-five for Senators. Two major themes stand out from this period:

• With respect to the method of selecting Senators, earlier proposals universally support appointment. Beginning in the 1980's, there is increased support for direct election.
• With respect to powers, over time there is an increasing trend towards creating classes of legislation, with the Senate's powers dependent on the specific class of legislation.
• The ratification of the Constitution Act, 1982, removed the ability of Parliament to make changes to the Senate without provincial approval. As a result, since 1982, all Senate reform proposals have been part of a larger constitutional package, in which both individual provinces and the federal government compromised to get an agreement. While the amendments failed, dispute over Senate reform did not play a major role in these failures.

Here are three major Senate reform proposals from this period:

House of the Federation (1978)

This proposal was part of the government's proposals for amending federal institutions contained in Bill C-60. It is based on recommendations made by the Pepin-Robarts Task Force on Canadian Unity, although it doesn't follow them completely:

• The Senate would be transformed into a House of the Federation
• Provincial governments would appoint half the delegates to sit in the House of the Federation. The House of Commons would appoint the remaining half.
• Provincial representation would be roughly based on population, with overrepresentation of smaller provinces. Both Quebec and Ontario would receive one-fifth of the seats. There would be a maximum of sixty voting members in the House
• The powers of the House would depend on the class of legislation.
• The House would have a suspensive veto over matters that fell under both federal and provincial jurisdiction.
• The duration of the suspensive veto would depend on whether the constitution gave provinces or the federal government paramountcy in this area.
• A two-thirds majority of the House would be required for federal treaties falling in areas of provincial jurisdiction
• A double majority of French and English speaking Senators would be required for legislation concerning linguistic matters.
• A two-thirds majority of the House would be required for the exercise of the federal spending power in areas under provincial jurisdiction.
• House approval would be required for appointments to the Supreme Court and other national regulatory agencies.

The House of the Federation Model was based on the German upper house, called the Bundesrat. It is a piece of legislation created by the federal government, without formal input from provincial leaders. Originally, the Pepin-Robarts task force recommended that provincial governments appoint Senators; Bill C-60 allows the provinces to appoint only half the delegates, with the House of Commons appointing the remaining half. Therefore, the PM would still be appointing half the representatives to the upper house. Still, the proposal does give the Upper chamber an absolute veto over certain narrow classes of legislation.

Triple-E Senate (1980's - Current)

The Triple- E Senate does not consist of one specific proposal. Instead, it is an underlying philosophy for implementing Senate reform. In the 1980's, the basis for a Triple-E Senate was laid out in several Canada West publications. The term "Triple-E" stands for "Equal, Effective, Elected." The main features of the Triple-E Senate are as follows:

• Equal provincial representation
• Effective powers
• Directly elected Senators

While all Triple-E proposals involve equal provincial representation and directly elected Senators, the number of Senators per province, details of the election process, and the powers of the Senate differ. In 1985, the Alberta Select Committee put forth a recommendation for Senate reform based on the Triple-E model that gave the Senate the power to veto any House of Commons legislation except for money or taxation bills. In May 2003, the Report of the Alberta Select Committee on Upper House Reform released a more moderate Triple-E Senate proposal that included the following:

• Equal provincial representation, with six Senators per province and two Senators per territory
• Direct election of Senators, with the election method to be determined by the province
• The ability to amend, delay, or reject ordinary legislation, with a 180 day suspensive veto
• An absolute veto over legislation affecting provincial jurisdiction
• House approval required for Supreme Court appointments and ratification of national treaties

Charlottetown Accord (1992)

The Charlottetown Accord was Conservative Prime Minister Brian Mulroney's final attempt to bring Quebec 'back into the Constitution" after the failure of the Meech Lake Accord. The Accord was the result of several intense bargaining sessions between the provinces and the federal government, and a series of public hearings. It was presented as a package deal: amending it in any way would cause the entire deal to collapse.

The Senate reform proposals were included to get the western province's support for clauses recognizing Quebec's distinct status. They include the following:

• Individual provinces could choose between indirect election by provincial legislatures or direct election
• There would be equal provincial representation in the Senate, with each province being given six seats. In addition, the Northwest territories and the Yukon would each receive one seat
• In addition, aboriginal representation is guaranteed
• Like Bill C-60, the Charlottetown Accord creates classes of legislation.
• Senators can amend or reject ordinary legislation, or delay it for thirty days. Defeating or amending the legislation would lead to a joint sitting with the House of Commons. A simple majority would be required to pass the bills.
• Senators can amend, reject, or delay revenue and expenditure bills for up to thirty days. After thirty days the House can re-pass the legislation with a simple majority.
• Bills affecting French language and culture fall under the double majority rule. To pass, the bill must have the support of both a majority of Senators and a majority of French speaking Senators. The House of Commons cannot override a Senate veto.
• The Senate has an absolute veto over legislation related to natural resources. The House of Commons cannot override.
• With the exception of money bills, the Senate can initiate legislation.

Pundits referred to the Charlottetown Accord's Senate reform provisions as "Two and a Half E's." The Accord fell short of the Triple-E model in effectiveness, giving Senators both more and less power than other proposals. On the one hand, it limited the Senate's suspensive veto over ordinary legislation to thirty days. While it contained a provision for a joint sitting to break deadlock between the two Houses, the large number of MPs compared to Senators meant this provision would have had little effect. (The only exception might be in cases where the government had a minority government or only a small majority, and the majority of Senators were from a different party than the government). On the other hand, it gave Senators an absolute veto over natural resources and French language and culture.

The Charlottetown Accord also fell short of the Triple-E model by allowing provinces to choose whether Senators were indirectly elected by provincial legislatures, or directly elected by the public. This was done to gain Quebec's support for the Accord. However, if the Accord had been ratified, public pressure would probably have forced the remaining nine provinces to implement direct elections.

Non-constitutional efforts to Reform the Senate

The Province of Alberta

In 1987, Alberta passed the Senatorial Selection Act, setting out the conditions for direct election of Senators. In 1989, the province held its first Senatorial election. The government's purpose was to pressure the federal government into filling the next Alberta Senate vacancy with a directly elected Senator. Candidates included long-time Triple-E advocate Bert Brown, Liberal Bill Code, and Reform Party member Stan Waters. At the time, Conservative PM Brian Mulroney needed the approval of the provinces for the Meech Lake Accord. As a result, in 1990, Mulroney acceded to Alberta Conservative Premier Don Getty's request and appointed the winner, Stan Waters, to the Senate. (In 1987 and 1988, the PM also appointed several Senators from a list submitted by the Quebec government). However, after Waters death, Liberal PM Jean Chrétien eventually replaced Waters with a Liberal patronage appointment.

In 1999, in conjunction with municipal elections, the province held another set of Senatorial elections. However, the PM refused to appoint either of the two victors, Bert Brown and Ted Morton. Instead, he filled the vacancy during the campaign. To this date, the two "Senators-in-Waiting," have not sat in the Senate, and Alberta remains the only province to have held direct Senate elections. In May 2003, Alberta is again proposing a constitutional amendment to reform the Senate.

Canada West Foundation

In September 2003, the Canada West Foundation released a 10-step program to help end western alienation. The two recommendations on the Senate consisted of the following:

• Appointments to the Senate of Canada should be made by the PM from lists submitted by provincial and territorial governments.
• The government of Canada should conduct a comprehensive review of non-constitutional options for Senate reform.

Basic Problems with Non-Constitutional Senate Reform

When it comes to the three main areas where reform is proposed - method of selecting senators, regional representation, and powers - the only one that can be achieved by non-constitutional means is the method of selecting Senators. The PM can agree to fill vacancies from lists submitted by provincial governments. This leaves the provinces free to hold Senatorial elections if they wish to do so.

The problem with this approach is that directly elected Senators would have the legitimacy to exercise the broad powers given to them under the Constitution Act, 1867. Some academics argue that giving the Senate nearly equal powers to the House of Commons is incompatible with the principle of responsible government. For Parliament to function, direct election would have to be accompanied by a limiting of the Senate's powers in most areas to a suspensive veto. However, the Senate's powers cannot be changed without a constitutional amendment. The failure of both the Meech Lake Accord and the Charlottetown Accord makes it clear that constitutional amendment is nearly impossible to achieve.

Federal Perspective

Canadian Alliance Party

In 2000, the Canadian Alliance Party was formed from the Reform Party. When it was first created in 1987, one of the Reform Party's main platforms was the need for a strong Senate based on the Triple-E model. However, the Canadian Alliance Party has modified this stance. The party website states the following policy on Senate reform:

• The (direct) election of senators, who would then have a democratic mandate to carry out their constitutional responsibilities.
• The distribution of Senate seats on an equal basis determined through constitutional discussion with the provinces and territories

Specific powers are not mentioned. With respect to Senate seat distribution, Dr. Ted Morton, one of the Reform Party candidates in the 1999 Alberta Senatorial election, has suggested a formula based partially on regional equality, with some adjustments for population disparities. While individually Ontario and Quebec would have more Senate seats than any other province except British Columbia, the remaining regions together would control seventy percent of the Senate seats.

Liberal Party

In July, pundits speculated the PM would unveil a modest plan for Senate reform at the annual Liberal caucus retreat in August. The PM was expected to announce he would agree to fill existing Senate vacancies from lists submitted by provincial Premiers. The general consensus was that the PM was considering this move to limit leadership candidate Paul Martin's ability to reward party faithful with Senate appointments. In any event, the announcement never came to pass.

On November 15, 2003, the Liberal Party will select a new leader. The policies of leadership candidates Paul Martin (former Finance Minister) and Sheila Copps (Heritage Minister), are as follows:

Paul Martin
With over ninety percent of the delegates, Paul Martin is expected to be the next PM. Recently he stated that, while he supports the Triple-E Senate in principle, he would only commit to consulting with provinces on how to select new Senators.

Sheila Copps
Sheila Copps released a series of practical, although relatively minor,  proposals for Senate reform that increases minority representation, but doesn't impact the method of selection, regional representation, or powers of Senators: 

• Introduction of limited-term appointments
• Appointing women and minorities to the Senate in numbers that reflect Canada's population
• Creating a Regional Affairs Committee of the Senate
• Televising Senate debates and Committee hearings

New Democratic Party
The official NDP position has always been that the Senate should be abolished. Newly elected NDP leader Jack Layton reiterated this position when commenting on the recent appointment of a Liberal MP to the Senate. The forty-nine year old MP, Mac Harb, had helped Chrétien with his 1990 leadership campaign.

Progressive Conservative Party
According to their official website, the Progressive Conservatives support an elected Senate. Newly elected leader Peter MacKay has not made any further public comments on the issue.

Further Reading:

Senate Reform Proposals in Comparative Perspective. Parliament of Canada.
http://www.parl.gc.ca/information/library/PRBpubs/bp316-e.htm
Includes an interesting look at the different electoral methods proposed for holding Senatorial elections

A Future Together. Report of the Pepin-Robarts Task Force on Canadian Unity. 1978.
http://www.uni.ca/pr_index.html

A Time for Action. Solon Law Archive.
http://www.solon.org/Constitutions/Canada/English/Proposals/tfa.html

Senatorial Selection Act. 1985. Alberta. Queen's Printer.
http://www.qp.gov.ab.ca/Documents/acts/S05.CFM

Charlottetown Accord. Solon Law Archive.
http://www.solon.org/Constitutions/Canada/English/Proposals/CharlottetownLegalDraft.html

"Alberta Calls for Triple-E Senate," May 14, 2003. Alberta.
http://www.gov.ab.ca/home/index.cfm?Page=476

"Carney Urges New Law to Elect B.C. Senators," March 13, 2001. Parliament of Canada.
http://www.sen.parl.gc.ca/pcarney/english/Archives/Senate%20Reform/press_relase_senate_reform.htm

"Federal Appointments Won't Please West," September 11, 2003. Ottawa Citizen.
http://www.nrcan.gc.ca/eclips/0309/030911/030911fb.htm