Senate Reform in Canada – Going Boldly Where No Senate Has Gone Before?

This weekend, I had the pleasure of attending a conference at the Centre for Constitutional Studies at the University of Alberta in Edmonton, Alberta. The conference was entitled “Time for Boldness on Senate Reform”. Its opening speaker was the Right Honourable Kim Campbell, former prime minister of Canada. She delivered a thoughtful review of her experience both as a minister under Brian Mulroney’s government and as prime minister and her recollections about how the Senate had acted in response to both the Progressive Conservative’s government’s proposal for free trade with the United States and to the Mulroney government’s later proposal for the Goods and Services Tax (“GST”). The conference ended with the eminent professor and scholar Roger Gibbins reviewing the results of the various speakers and summarizing his experience at the conference. Professor Gibbins asked himself two questions. First, he asked whether the conference participants had been successful in living up to the conference’s : were they “bold” in their suggestions for Senate reform. He answered that question with a “No”. Then, he asked whether he learned whether Canada had to be bold in reforming the Senate. To that, he responded “Yes”.

Professor Gibbins said that he also learned from the conference (he credited Professor Andrew Heard from Simon Fraser University but others also were making similar suggestions) that Senate reform would probably have to come from the Senate itself. I will discuss this point at the end of this post.

I must confess that I attended the conference with the expectation that I would be hearing much bolder suggestions than those which were in fact presented. The conference speakers were largely hesitant to put forward bold visions for the Senate (except arguably Professor Bruce Hicks (redistribution of seats) and the NDP’s Craig Scott (abolition)). As some noted, after the unsuccessful attempts to amend the Constitution with the Meech Lake (1990) and Charlottetown (1992) Accords, Canadian politicians (and academics it would appear) seem to have accepted as gospel that constitutional amendment is impossible and requires too much political capital. In short, any constitutional amendment involving consultation and consent of the provinces is political suicide in Canada. I agree with Craig Scott, MP, (Official Opposition Critic for Democratic and Parliamentary Reform) when he suggested that Canadians have now recovered from their post 1990 and 1992 constitutional reform post-traumatic stress disorder and that we do not have to reel in horror at the “constitutional bogeyman” anymore.

That being said, there was a lot of sage advice given by the conference participants. I learned some lessons of my own which I will share here.

Lesson 1. There are a lot of reforms that can be done to the Senate by the Senate without any constitutional amendments being necessitated at all. For instance, it can start by making itself a more transparent and more accountable chamber. Steps in this regard have already been taken and further steps can be made. The Senate can amend its rules so that it limits its own powers to veto legislation, thus bringing itself closer to the role defined for it by the Supreme Court of Canada in the Reference re: Senate Reform, 2014 SCC 32 as being a “complementary legislative body of sober second thought”. Thus, the Senate could refuse to amend money bills or bills of confidence, that role belonging properly to the elected House of Commons. It could amend legislation once but, if the legislation was returned by the House unamended, it would bend to the democratic will of the elected House.

Lesson 2. There is much merit in keeping the Senate an appointed, and not an elected, body. Provided that it remain true to its role as a complementary legislative body of sober second thought and not try to supplant the House of Commons as being the voice of the people, a Senate that is appointed can be filled with people who have the skill set and knowledge and expertise necessary to assess the legislative proposals thoroughly that a House of Commons, embroiled in the hurly-burly of electoral politics, cannot. Thus, without any constitutional amendments, it may be possible to make the appointment process more open and transparent and merit-based. On the other hand, if a Senate were elected, it would flex its democratic muscle and conflicts between the House and the Senate may result with increasing frequency. Many speakers referred to clues found in the Supreme Court of Canada’s judgment in the Reference decision that point to a need to retain an appointed and not an elected Senate.

Lesson 3. The Senate suffers from a democratic deficit, a legitimacy deficit and integrity deficit. Professor Adam Dodek of University of Ottawa made this point. I suppose that this was not so much of a lesson as a clear statement of what is commonly understood. I would add to that list the fact that the Senate suffers from a public understanding deficit. The ramifications of these deficits are that, even if the Senate acts on its own to clean up its own “house” so to speak, this step alone may not be sufficient to deal with the disdain that the public seems to hold for the Upper House.

Lesson 4. Professor Bruce Hicks of the Glendon School of Public and International Affairs at York University made the point that, if it was not for the Senate, there would never have been a Canada at all. At the time of Confederation, smaller divisions of Canada were concerned that they would be swallowed up and overwhelmed by majoritarian populations. Important social cleavages existed then (and exist today – perhaps in different forms) and the Fathers of Confederation used the Senate as a means to ensure that the tyranny of the majority would not be imposed on dwindling minorities without the minorities having some legislative voice. Thus, the old cleavages of Central Canada versus the Maritimes, Catholics versus Protestants, and French versus English were to be reflected in the Senate and the growing power and population of English-speaking Protestant Upper Canada was not to overpower the other elements of the nascent Canadian federation.

Lesson 5. As noted under Lesson 3, it is going to take something more than the Senate cleaning up its own house for the Senate to claim legitimacy (I was going to say “reclaim” but one can argue that, since Confederation, it has never been able to claim legitimacy). Professor Hicks had suggested what he termed the “Hicks Proposal” for redistributing Senate seats which would see Ontario and Quebec Senate seats being divided between regions within those two provinces and considering each other province as a region itself. (In fact, I have to say that I thought that his proposal was probably the “boldest” proposal of the conference.) In order to undertake this sort of change, however, formal constitutional amendment is necessary and, notwithstanding any distaste for actually speaking with the provinces about constitutional reform, real substantive constitutional negotiations would have to be involved.

Lesson 6. Increasingly over the last two to three decades, the Senate has been “whipped”, much like the House of Commons. Until January 2014, the political parties having members in the Senate whipped them with the same fervour as their members were whipped in the House. The result has been that the Senate has ceased to be the complementary chamber of sober second thought it was designed to be. Its job is not to rubber stamp bills but to examine them, see if there are improvements that can be made and then to make those proposals. By strictly whipping the Senate, that constitutional role is denied its expression. In January 2014, Liberal Leader Justin Trudeau announced that, henceforth, Liberal senators were no longer part of the Liberal caucus, they would not report to his leadership, they would not play fund-raising or electioneering roles in the party. They were, in a word, “independent”. Since then, the Liberal senators have been independent. They do not play a role in the Liberal Party’s fund-raising or election planning. They meet on their own but they do not need to come to a consensus on any bill. The Conservative senators have continued to be whipped and vote as a block, always supporting the government bill. Whether future governments and oppositions will continue to whip their members in the Upper House and, thereby, to prevent that chamber from acting on its constitutional mandate will remain to be seen.

Lesson 7. As Professor Gibbins noted, reform of the Senate would have to be driven by the Senate itself. First, it needs to undertake the reforms and the cleaning up it can do without formal constitutional reform. But, as he noted, a legislative resolution initiating a constitutional amendment will most certainly not be initiated by any provincial legislature. Nor did he think that the House of Commons or the Prime Minister’s Office will initiate any such step. Thus if Senate reform of a more substantial measure is going to be undertaken, it will be through steps taken by the Senate itself. Exactly what these additional steps might be is not clear. Perhaps the Senate could hold public hearings into potential amendments of its constitutional role or make-up or selection process. Perhaps, senators from individual provinces could travel back to their provinces of residence to take input from their respective provincial governments. Maybe after such steps, the Senate itself could commence the process for constitutional reform.

Canada’s Senate is broken. It is not working as it is supposed to – even using the 1867 understanding of the Fathers of Confederation as to what its role was supposed to be. Because of the whipping, it is not acting as a complementary legislative chamber of sober second thought. It does not reflect the realities of the 21st century Canada. Its distribution of members is an accident of history. British Columbia with 4.6 million residents has 6 senators and yet New Brunswick with 750,000 residents has 10. The Senate needs to be legitimized and modernized and its powers need to be clarified. We probably still need a bicameral chamber in this unique federation we call Canada. But we need one that is effective and that has a clearly understood and achievable role and mandate. Thus, it remains time for Canada, for Canadians, to be bold on Senate reform. Despite the legend of the post-Meech and post-Charlottetown hang-overs, we must all review this issue, make the necessary reforms, and make the Senate, and therefore our Parliament, a more functional, modern and effective legislative chamber.

The conference’s proceedings will be published in the Centre’s online journal, the Constitutional Forum and, when it does, I will make a note of it on this blog and recommend to readers that they peruse its papers. I would like to take this opportunity to thank the Centre for having had the vision and conviction to hold this conference and for the fascinating discussion that ensued.

I remain

Constitutionally yours

Arthur Grant

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