Reforming Canada’s Senate: A Question of Legitimacy

The Canadian Senate has long been a prominent feature of constitutional debate in this country. Some tensions of the Canadian federal structure have found residence in the attempts to answer the question of who, exactly, the Senate represents. That Canadian parliamentary democracy benefits from a bi-cameral legislature is not nearly as contested as the nature and structure of the upper chamber itself. Some have called the continuous focus on Senate reform merely a “pleasant diversion into the realm of political fantasy”,1 while others have seen this focus as a political imperative in desperate need of resolution.2 This paper aspires to be more than just a “displacement activity”.3 It seeks to determine what failures in the current institutional arrangements are hoped to be improved by implementing an elected Senate and whether or not reform of this nature would be efficacious or simply produce consequences and concerns that would outweigh the benefits.

This paper recognizes two failures in the current institutional arrangement. The first is the failure of the Senate to properly represent Canada’s regions according to the constitutionally founded federalist principles. The second is its’ lack of democratic legitimacy as an unelected legislative chamber. Two reasons for the Senate’s deficiency in correctly representing the diverse interests of Canada’s regions are recognized and identified. The first is the well established custom of party patronage and the second is the Senate’s failure to sufficiently utilize regional representation as a check on representation by population. Two features that undermine the Senate’s legitimacy and illustrate its’ lack of representative principles are its’ exclusivity as an appointment chamber and the powerful residual influences of the former governing party. Although Canada’s legislature is relatively stable and conventionally sound it is untethered constitutionally to the democratic principles of representative government. Therefore it is imperative that the second chamber be an elected body.

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Failure #1:

The Senate in its present mode as an unelected legislative chamber fails to represent regional interests for two reasons: 1) Party Patronage and 2) Ineffective facilitation of regional representation as a check on representation by population.

An historical trend reveals that appointment to the Senate, generally, is not because the candidate can, or will, bring a contribution to the beneficence of Canada through service in the upper house, but as a reward for what they have already given to the party and the Prime Minister.4 Senator’s appointments occur on the basis of political patronage with little or no consultation with provincial premiers.5 An obvious argument asks how the Senate can be effective as an institution of regional representation if it is comprised of individuals who have received their position as a reward for fidelity to the federal executive, particularly the Prime Minister. A reformed Senate need not give equal regional representation by being constituted with an equal number of representatives. The federalist principle simply requires the Senate’s composition to provide favourable balancing of regions over population.6

There is a possible negative implication of the attempt to correct party patronage in the Senate. The system established by the convention of reward is possibly too entrenched in Canada’s federal political system. If the Senate becomes an elected chamber this convention may just shift to another institution and produce tension in another branch of government.

The national government is constitutionally required to collaborate and cooperate with the regional constituents.7 With the upper house being dominated by ‘friends of the executive’ and regionally by Ontario and Quebec the constitutional recognition of regional representation at the federal institutional level8 is clearly compromised. Early in Canada’s confederation David Mills argued that the Senate was inconsistent with the federal principle and that the Constitution should be amended to allow the provinces to select their own senators and to define the mechanics of election.

An elected upper chamber comprised of senators with clear regional mandates would necessarily provide a more pronounced regional representation then that of the House of Commons or the present senate. It would see the elevation of the “regional criterion above the population criterion”.10 An elected upper house would see the facilitation of the federalist principle and regional demands through the balance of representation by region with representation by population. Only through the senate, as a second chamber, can representation by region check the representation by population of the House of Commons.11 Senator Gerry St. Germain proposes a full determination of the nature of the Senate’s regional representation with the goal of achieving numerical representation for the provinces.12

It may be observed that the provincial governments already afford a regional check on the principle of representation by population and that the federal arrangement as it exists accommodates regional concerns in some measure. It can be argued that executive federalism sees regional interests being given a voice through the provincial executive.

Franks recognizes that “a pronounced characteristic of provincial governments… is that they are even more executive-dominated than the federal government” resulting in a weakened provincial legislature.13 There is a tendency for provinces to have enduring governments and barely audible oppositions.14 Historically there has been some measure of avoiding provincial problems through confrontation with the federal government. For a provincial government confrontation with the federal government can force provincial opposition parties to toe the line, effectively obscuring disagreement within the provincial legislature by the “need for loyalty and support”15 in the federal-provincial debate. This results in provincial governments presenting a skewed view of regional concerns.16

Failure #2:

The Canadian Senate is correctly perceived to be illegitimate because it is not underpinned by the principles of representative government. Two features that attenuate the Senate’s legitimacy are: 1) its’ exclusive nature as an appointment chamber and 2) the overarching influence of the former governing party.

Aucoin characterizes the Senate as distinctly set apart from “the political principles and practice of representative government”.17 As an appointment position the office held by a senator tends to be functionally representational of a “select group of interests, among which the main ones are corporate and financial”.18 Franks calls the Senate “a comfortable, easy-going, and rewarding club to belong to”.19 Given the democratic principles that representative government are ideally founded on it is easy to see that this characterization of the Senate puts its’ role as a legislative chamber in a negative light. Although this depiction may be offensive to senators past and present it is salient as a revelation of the perceived unrepresentative nature of the chamber and the privilege derived from its’ attainment.

Senators often defend their office by pointing to the higher standards of legislative investigations afforded by Senate committees, but the gap between the principles of representative government and appointment politics remains.20 Franks illustrates several reasons why Senate committees are more effective than Commons committees.21 He argues that they are comprised of competent and experienced politicians who are usually non-partisan, they garner little media attention, and their members have the time to conduct exhaustive research. Senators can work on for many years without the “vagaries and demands” of elections.22 Franks believes that these elements all contribute to an effective upper chamber investigation process.23 Would this effectiveness be compromised by an elected Senate, and if so, is it a worthy sacrifice to more properly abide by the principles of representative government?

The Senate is comprised of competent and experienced politicians and the composition would necessarily change with an elected Senate. Most proposals would see the elected Senate reflecting more diverse elements of Canadian society along gender and minority considerations.24 The Beaudoin-Dobbie proposal (1992), which calls for a proportional representation system depicts the elected Senate as more accurately reflecting voter’s party preferences in the various regions and sees a better representation of minorities and gender equality.25 Its’ system claims to make it unlikely that the Senate’s composition would duplicate that of the House of Commons.26 This could see a reduction in competency and experience but would more realistically mirror the interests of the regional voting public.

Non-partisanship could potentially be retained according to the same proposal as it fixes elections separate from both the House of Commons and the provincial legislatures. It argues that this would reduce the dominance of party affiliation over legislative behaviour.27 To the question of whether the ‘luxury’ of time to conduct exhaustive research would be comprised, the Molgat-Cosgrove proposal (1984) answers by fixing elections on a triennial basis with one-third of the Senate membership being renewed with every election.28 This would allow a considerable overlap of time for Senate committees to accomplish their work, and of course their work would be further legitimated as stemming from an elected body. Some may argue that stability in government calls for the sacrifice of some democratic principles but it is an ideal ethical imperative that the spirit of adherence to those principles is built up constitutionally regardless of any unforeseen consequences.

The assumption that an elected Senate would have more legitimacy is correct regardless of the possibly low voter participation in Senate elections because its representative character would abide by democratic principles. A Senate elected by just a third of the electorate that voted for a majority in the House of Commons retains its’ legitimacy because it is still a product of the electorate’s intentions. The elected Senate is institutionally contiguous with the rest of the legislature and therefore its’ legitimacy is guaranteed in principle.

Early in Confederation it was recognized that Canada was becoming a country with remarkably enduring governing parties29 and concerns have been voiced, since then, over the appointed Senate having the tendency to “artificially extend”30 the agenda of the former federal governing party “most recently defeated by the voters at the polls”.31 There has been a relatively consistent propensity for governing parties to ‘stack’ the Senate with loyal members effectively hindering the legislative process through party politics. For example, Laurier’s Liberal majority in the House of Commons faced a Conservative majority in the Senate in 1896.32 There have been many instances of legislation being passed by a House of Commons elected majority and subsequently meeting with defeat at the hands of a rejected governing party that still held a majority in the appointed Senate.33 This ‘hop scotching’ has been a consistent feature of federal legislative tension and party competition in Parliament since Confederation.

There are no guarantees that party politics would be eliminated from the legislative procedure if the Senate was an elected chamber, but the tension of a double majority would be the product of the electorate’s intentions and subsequently would abide by the principles of representative government. Certainly, though, some system of controls would have to be implemented to prevent the Senate from having the overarching ability to “immobilize majoritarian government”.34 Some power to delay legislation like a ‘suspensive veto’ could possibly be implemented allowing time for national debate and reflection yet preventing the Senate from effectively defeating a government. Senator Gerry St. Germain views the elected Senate as a compliment to the role of the House of Commons and not as a competing legislative chamber.35

It has been revealed that there are indeed shortcomings in the present institutional arrangements and that they could possibly be ameliorated by re-forming the Senate as an elected chamber of the legislature. By no means does this paper afford an exhaustive study of the issue, but it has recognized two prominent failures that an elected Senate would directly address. The first is the improvement of the Senate as a regional representative body decidedly more attuned to the federalist principles of the Constitution. The second is the advancement of the democratic principles of representative government afforded by the legitimacy of election. This paper has argued that party patronage and the failure of regional representation to check representation by population have characterized the breakdown in the Senate’s ability to represent the regions. It has also recognized that the Senate’s exclusive nature as an appointment chamber along with the dominant left over pull of a defeated federal governing party undermines its’ legitimacy in the mechanics of legislation.

Regardless of any perceived negative consequences that an elected Senate may produce, its’ validity as a legislative chamber would be unassailable and its’ relevance unquestionable in the context of a bi-cameral legislature. Some say the “problems and the asymmetries of the Canadian confederation are not going to be resolved by the technical fix of a new upper chamber.”36 It is true, some problems in the present institutional arrangement may not be resolved, but the implementation of an elected Senate is a move towards the ideal of the principle of representative government and therefore levels the field of constitutional debate while setting new parameters of discussion within a more legitimate context.