To have a useful discussion on Senate reform or improvement, we must face the elephant in our Red Chamber – the place where senators sit. I am amazed by the number of writings on the Senate, including Professor Tom Flanagan’s, that don’t even mention this pachydermic problem. Yet this is the fundamental reason why, almost 150 years after Confederation, our senators are still being appointed rather than elected.
This elephant is the huge imbalance in the number of senators per province. How can we not see this beast? While New Brunswick and Nova Scotia have ten senators each representing them, Alberta and British Columbia have but six each, even though their populations today are five to six times larger.
There is no obvious logic to this imbalance, contrary to the equal number of senators per state in the United States or Australia. The unfair distribution of senators among Canadian provinces is the somewhat incidental result of east-to-west migration and settlement of European immigrants since Confederation. This is why New Brunswick and Nova Scotia have so many more seats in the Senate relative to their population than Alberta and British Columbia.
As I noted in a previous Inroads issue, this unbalanced provincial representation in the Red Chamber is tolerated only because our senators – being unelected – exercise their constitutional powers with the utmost restraint.1 Although it has almost the same powers as the House of Commons, the Senate almost always leaves the last word to the lower house. The Senate proposes amendments – often useful – to bills from the House, but rarely casts a veto.
However, if senators were elected, they would no longer have any reason to leave the last word to their colleagues in the House. Instead of vetoing one bill every few years, they might well do it every few weeks. The risk of parliamentary paralysis is quite obvious, particularly when electoral outcomes produce two houses of different partisan complexions.
With such a powerful Senate, the meagre representation of Alberta and British Columbia would fast become intolerable. Should such an elected Senate make decisions that go against – or are perceived to go against – Alberta’s or British Columbia’s interests, the heretofore quiet and discreet elephant in the Red Chamber would begin trumpeting raucously.
So why have we not yet pushed this elephant out of the Red Chamber? Because, alas, it is easier said than done: in effect, the exit door is too narrow for it. Let’s be candid: we do not agree on what the number of senators per province should be. Opinions differ on the number of Senate seats that should go to Albertans, Ontarians, Quebecers, Newfoundlanders, etc.
Should we, by chance, manage to agree on the number of senators to be allocated to each province, everything else would fall into place. We would adopt a voting system for senators (proportional, first-past-the-post, preferential or alternative). We would give this elected Senate appropriate powers to serve as a useful complement to the House of Commons. We would establish a process for resolving disputes between the Senate and the House, to avoid paralysis between two elected chambers that are both empowered to speak on behalf of the people. Our politicians would negotiate this constitutional change without extending the debate to all kinds of other issues – and a responsible Quebec government, devoted to Canada, could let itself be persuaded to do it. We could, by referendum, submit the reform for approval to Canadians: wouldn’t they be more than happy to give themselves the power to select all their parliamentarians?
But this is nothing short of utopian. Why? Let’s continue to be candid: nobody knows which province would be ready to give a few of its own seats to Alberta and British Columbia. None seems to be the ideal candidate for such sacrifice, particularly in the context of a reform that considerably increases the Senate’s true weight in our political system.
In principle, the four Atlantic provinces, with 30 senators out of 105 and only 7 per cent of Canada’s population, could spare some seats. But with their relative weight in the House of Commons dwindling in favour of the fast-growing provinces farther west – Ontario but also, more specifically, Alberta and British Columbia – they would undoubtedly resist letting go of this overrepresentation.
Quebec – which considers itself a nation, with particular responsibilities in a mostly anglophone North America – will refuse to give up any of its 24 seats and have its relative weight within an elected Senate reduced, with nothing in return. Its government was only persuaded to accept an equal Senate under the Charlottetown Accord after being guaranteed, in perpetuity, a quarter of the seats in the House of Commons. That guarantee was not well received by the other provinces and contributed to the accord’s demise.
With less than a quarter of the seats and almost two fifths of Canada’s population, Ontario is already underrepresented in the Senate. Manitoba and Saskatchewan, with six seats each, and the three territories, with one seat each, have none to give up.
I do not know if that disagreement can some day be resolved. What I do know is that with the current per-province seat distribution, an elected – and therefore powerful – Senate would be unfair for our country’s two westernmost provinces. Under those conditions, an elected Senate would draw us inexorably into a major, and possibly unsolvable, constitutional crisis.
Yet this is what Stephen Harper, the current Prime Minister, proposes to do: elect the Senate without changing the provincial seat distribution. That’s irresponsible. It’s nothing but shortsighted populism.
Tom Flanagan’s proposal isn’t very different from Stephen Harper’s. It suggests that the prime minister’s nomination power should be strongly curtailed and transferred to the provinces. They may choose to elect senators or to set up independent commissions mandated to submit a short list of candidates to the prime minister.
I doubt that the Flanagan proposal could be implemented through a simple act of Parliament without the agreement of at least seven provinces representing half the population of Canada. In its decision regarding the Reference by the Governor in Council concerning the legislative authority of the Parliament of Canada in relation to the Upper House,2 the Supreme Court found that “to make the Senate a wholly or partially elected body would affect a fundamental feature of that body” and that the constitutional powers of Parliament do not allow it to unilaterally change a fundamental feature of the Senate. But we will soon know what the Supreme Court’s verdict is on this issue, now that Stephen Harper has finally made up his mind to seek the Court’s opinion.
What I have no doubt about is that it would be a mistake to give the provinces a legal say in the selection of senators, as Professor Flanagan proposes. Doing that would exacerbate the unfairness of their respective weights in the Senate. At a time when some provinces are underrepresented for no logical reason, nothing must be done that suggests that senators could act as agents of the provincial governments.
As for the often-made proposition, revived by Professor Flanagan, that senatorial selections be submitted to the scrutiny of supposedly independent and apolitical commissions (composed of members of the Order of Canada, for example), I remain sceptical about it. I find the notion elitist – and frankly, not very democratic – and believe that Canadians would perceive it as such. It risks watering down the prime minister’s accountability. He selects senators – he should bear the responsibility for his choices.
So what to do? Abolish the Senate? Abolition faces a constitutional hurdle, well described by Professor Flanagan. But more importantly, I believe there are better things to do than abolishing the Senate. Instead, I suggest that we do all we can to ensure that it fulfills its core responsibility, as bestowed upon it by the Fathers of Confederation: to be a chamber of sober second thought. Made up of members who gain valuable experience – compared to members of the House of Commons who may come and go quickly from election to election – it needs to be a chamber that scrutinizes bills, detects errors, shortcomings and ambiguities, and proposes useful amendments accordingly.
We can improve on current practices. I suggest that members of Parliament – and the prime minister – be required to examine proposed amendments from the Senate with an open mind and justify their response, instead of rejecting such proposals out of hand, and with no explanation, under the excuse that they come from nonelected senators.
I suggest further that the prime minister be legally required to justify his Senate nominations formally. Rather than informing us through discreet Friday evening press releases, let him present them in House speeches and Senate appearances. Let him explain why the new senators can be expected to make excellent legislators and help the Senate represent regions and minorities effectively.
In addition, the Senate’s independence must be better protected. Specifically, Senate committee members and chairs should be selected internally by the Senate with no interference from the prime minister.
Above all, fixing the Red Chamber and restoring its reputation requires hitting the right nails on the head. To avoid expense shenanigans, there needs to be more transparency: regular, statutory, external audits and verifications – for example, to ensure, even ahead of a nomination, that a senator’s principal residence is indeed located in the province he or she represents. Candidates’ background and credentials should be scrutinized. And there need to be more stringent requirements for session and committee attendance.
Tom Flanagan is right in saying that many improvements can be made to the Senate without touching the constitution. But first there must be a general understanding that an elected Senate is out of reach, blocked by an immovable elephant. On that basis, we can make best use of our energies, directing them toward giving ourselves the best possible house of sober second thought.
1 “The Senate Reform Bill: A Constitutional Danger for Canada,” Inroads, Summer/Fall 2012, pp. 71–81.
2 1 S.C.R. 54