In light of the Mike Duffy trial, the investigation of 30 senators after the Auditor General’s report into Senate expenses and doubts about the constitutionality of both Duffy’s and Pamela Wallin’s appointments, the public is increasingly asking key questions about the tarnished second chamber. An April poll by Angus Reid showed that 45 per cent of Canadians surveyed wanted the Senate reformed while 41 per cent wanted it abolished outright; only 14 per cent wanted it left as it is.¹

Why are we spending taxpayer dollars on this place and these people? What’s the point of the Senate? A second chamber in the central parliament of a federation can serve a valuable purpose, but Canada’s Senate, regrettably, does not. So, what do we, as citizens, have to say about this, and what do our governments, including the new federal government we elected on October 19, do about it? As a participant in the last serious, but ultimately doomed, attempt to reform the Senate, in the 1992 Charlottetown Accord, here are my thoughts on what, at heart, the problems are with the Senate and an agenda for the new Prime Minister to take on to address these problems.

The Senate and Canada’s constitutional principles

In the Reference re Secession of Quebec, the Supreme Court of Canada identified four underlying, unwritten principles of our Constitution: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities.² It is reasonable to assess the value of our institutions of government according to whether, and how, they support these principles. Not every institution needs to uphold and support all four of the fundamental principles, but all institutions should uphold and support at least one of them and, in doing so, not undermine any of the others. The Senate was designed to make a unique contribution to the principle of federalism within Parliament. Unfortunately, the Senate as it actually functions fails to do this or support the other principles.

The Supreme Court of Canada described federalism as “the political mechanism by which diversity could be reconciled with unity.”³ The design of the federal Parliament reflected the federalism principle in several ways: by providing for regional representation in the Senate to balance the democratic representation-by-population method of distributing seats in the House of Commons; by ensuring that provinces have a minimum number of seats in the House of Commons, at least as many as the number of senators representing that province in the Senate; and by requiring that senators appointed to represent a province reside in that province and own $4,000 in real property there.⁴

As an appointed chamber, the Senate was never designed to advance the principle of democracy. Neither did it ever really serve the principle of protection of minorities, other than by the rather weak mechanism of requiring Quebec senators to reside in and represent particular regions of the province so that the anglophone minority would be represented in the Senate.⁵

Our current Senate does, frankly, a terrible job of reconciling diversity with unity by representing the diversity of the country in our central Parliament. As we have been reminded by the recent stories about a number of senators’ political activities, senators represent the interests of the prime minister who recommends their appointment to the governor general more than those of the province which they are appointed to represent. The constitutionality of the Senate appointments of Mike Duffy to represent Prince Edward Island and Pamela Wallin to represent Saskatchewan, when they were both well known as longtime Ottawa-based journalists, is highly questionable.⁶ If advancing the principle of federalism within our central institutions of government is the key rationale for having a Senate, as it would seem to be, today’s Senate has lost the purpose that would justify its existence.

First step: Abolish the Senate

If the Senate fails to support and advance the fundamental principle of the Constitution for which it was designed or uniquely contribute to the protection and advancement of any of the fundamental principles of the Constitution, it is quite reasonable to ask, “So what do we do about this problem chamber anyway?” This question should occupy at least some of the thinking of the new Prime Minister, Justin Trudeau. I would propose a three-step solution to the problem that is the Canadian Senate.

As a first step, I would propose that the Prime Minister introduce a resolution to amend the Constitution to abolish the Senate. The text of the resolution could be quite simple: “that sections 21 to 36 of the Constitution Act, 1867 and all other references to the Senate in the Constitution of Canada be repealed.” There is a silver lining in the decision of the Supreme Court of Canada that Senate abolition requires the concurrence of Parliament and the legislatures of all ten provinces⁷: under the constitutional amending formula, resolutions to amend the Constitution that require the concurrence of all the provincial legislatures do not expire, unlike those that can be made under the “7/50” formula, which expire after three years.⁸ Thus, the Prime Minister can introduce the resolution into the House of Commons at any time, as an indication of his commitment to abolish the chamber, and negotiate the concurrence of the provinces over time without having to worry about a three-year deadline looming. Of course, to demonstrate some momentum for Senate abolition, it would be valuable for the Prime Minister to get those provinces that have indicated that they support abolition to agree to introduce equivalent resolutions at the same time as he introduces his own resolution in the House of Commons.

Importantly, the Senate cannot veto a constitutional amendment resolution that would have the chamber abolished. Under section 47 of the Constitution Act, 1982, if the Senate defeats such a resolution and sends it back to the House of Commons, a proclamation to amend the Constitution can still be issued if the House passes the resolution again 180 days after its initial passage.⁹

Why abolish the Senate rather than reform it? Surely it would be easier to get the provinces to agree to reform the Senate to allow it to better secure the principle of federalism and possibly even to advance some of the other principles of the Constitution. This should especially be true since constitutional amendments to reform the Senate would only require the concurrence of seven provinces representing 50 per cent of the population, whereas the Supreme Court of Canada tells us that Senate abolition requires unanimous agreement.¹⁰

This is where my experience with the last attempt to negotiate a set of constitutional amendments to reform the Senate comes into play. That experience suggests to me that achieving concurrence on Senate reform would not, in fact, be easier than achieving unanimous agreement on abolition, and indeed might well prove harder.

In the Charlottetown Accord negotiations in 1992, reform of the Senate was the last item agreed on by the ministers and first ministers at the table, and the result of that agreement seriously damaged the political careers of more than one premier. Several provincial governments entered the negotiations insisting that the Senate be reformed to be equal, effective and elected (a “Triple-E” Senate). The ultimate result, however, was far more complex.

The Senate agreed on would have had equal representation from each province (except if a new province was created out of what is today a territory) but, instead of a requirement that senators be elected, each provincial government was allowed to decide how to select the senators that represented that province. The proposed amendments also created an extremely complex deadlock-breaking mechanism that would be triggered if the House of Commons and the Senate voted in different ways on a bill in order to ensure that, if push came to shove, the Senate could not prevent the will of the House of Commons from prevailing.¹¹

This would have created a Senate in which provincial representation was equal but in which some Senators would be appointed while others would be elected, and which would merely complicate the legislative process in Parliament without ever actually being able to be effective in having its will prevail. In exchange, the first ministers agreed that Quebec’s overall level of representation in Parliament would be preserved through a guarantee of being overrepresented in the House of Commons relative to what a representation-by-population formula would justify, at the expense of the representation of some other provinces in the House, most notably British Columbia¹²; B.C. Premier Michael Harcourt’s concession to Quebec’s interests on this representation issue caused the media to label him “Premier Bonehead,” seriously damaging his political career.¹³

This history suggests that securing not only the necessary consensus among the provinces but also a social consensus in support of their decisions for any model of Senate reform is, effectively, impossible. There are simply too many vested interests among provincial governments – in particular, about how they will be represented in national political decisions – that must be brokered. There is also an element of path dependency that serves to limit governments’ capacity to engage in creative thinking on the matter of Senate reform. Combined, these problems make it practically impossible for any reform proposal to be broadly acceptable to the governments of even seven provinces, all of which must explain and justify any proposal to their voters and secure a social consensus in support of having the government agree to the amendment package. Abolition, on the other hand, is clear and readily understood, and therefore supportable, by citizens.

Not all premiers, however, are prepared to support Senate abolition at this time. Some still seem to believe the rather romantic proposition that having a Senate gives their province greater voice in Parliament and therefore greater influence on national politics than just having MPs from the province in the House of Commons. It is hard to imagine the cognitive dissonance required for premiers to retain the idea of the Senate giving a smaller province voice and influence. Senators are appointed on the recommendation of the prime minister rather than the relevant premier, and some recent appointments have been of people who do not even reside in the provinces they are meant to represent, Nonetheless, some premiers want to retain the Senate – including even Quebec Premier Philippe Couillard, who has stated that Senate abolition is against the political interests of Quebec as the Senate serves to “balance regional interests.”¹⁴

Second step: Council of the Federation

I believe, though, that the current logjam can be broken. As a strategy to help secure unanimous support for Senate abolition, I would propose that, in exchange for securing the unanimous support of the provincial governments for Senate abolition, the Prime Minister make a commitment to introduce a motion to constitutionally entrench a federal-provincial-territorial Council of the Federation and to require one First Ministers’ Conference annually. The Council would serve as a consultation and coordination body for joint decision-making on issues of national politics and public policy,

Such a Council of the Federation would better support the constitutional principles of federalism and democracy than the current Senate, as it would ensure that the democratically elected governments of the provinces and territories have a constitutionally entrenched role in national policy-making. The Council would likely have a secretariat staffed with federal, provincial and territorial officials to ensure that it had the capacity to fulfil its commitments.¹⁵ If the prime minister made the introduction of the Council of the Federation resolution in the House of Commons conditional on unanimous provincial passage of a Senate abolition resolution, it is hard to imagine that any premiers would pass up the opportunity to ensure that they and their officials would have a constitutionally mandated role in national policy decisions in favour of a Senate that does not represent their governments’ interests.

This is not to say that a second chamber, properly designed, would be useless in the face of a federal-provincial-territorial Council of the Federation. A second legislative chamber that represented the interests of the constituent units of the federation (including, ultimately, representation of self-governing indigenous nations) in the legislative process at the federal level could be a better protection for the federal principle within the central government than a Council of the Federation that only met periodically and was primarily an agenda-setting body for national policy. The key, though, is to carefully design a second chamber that appropriately represents the interests of the constituent members of the federation. Such a chamber is imaginable, but first we have to clear the decks of our current, failed Senate and old debates about its reform so that our first ministers can begin a discussion of how to form an effective second chamber that protects the federalism principle on the basis of first principles.

Third step: Design a new second chamber

This, then, brings me to the third element of my proposed three-step plan. At the first meeting of the newly constitutionalized Council of the Federation, I would have the prime minister propose a process by which the governments of the federation could attempt to design a new second chamber of Parliament. To encourage a spirit of compromise and ensure that this process would not go on forever in an attempt to achieve a “perfect” second chamber, I would recommend that the prime minister propose a time limit for this process – say five years. If Parliament and the necessary provinces failed to pass a constitutional amendment to create this new second chamber within this time, the effort would be abandoned.

If the governments of the federation succeed in designing a new second chamber that better upholds the fundamental principles of our Constitution than does the current Senate within the time allocated to them, we will be better off as a country. If they fail to design such a second chamber within the time limit, we will still be better off as a country. After all, we will have done away with a second chamber that costs taxpayers money while doing nothing to advance the fundamental principles of our Constitution, and we will have constitutionally entrenched a federal-provincial-territorial Council of the Federation. Even this result would be an improvement over what we are stuck with today. This is a significant way to improve our federation and our central political institutions; it would make a valuable contribution to our national politics if the new Prime Minister took the task on.

Notes

¹ Joseph Brean, “Majority of Canadians Support Either Abolished or Reformed Senate: Poll,” National Post, April 7, 2015, retrieved here.

² Reference re. Secession of Quebec, 2 SCR 217, at para. 49.

³ Ibid. at para. 43.

⁴ Constitution Act, 1867, s. 23.

⁵ Ibid. s. 22; see also Reference re. Senate Reform, 1 SCR 704 at para. 92.

⁶ While not a constitutional law case, “resident” was defined for the purposes of the Income Tax Act in the Supreme Court of Canada decision in Thomson v. Minister of National Revenue, SCR 209. There, Justice James Estey defined someone as being “ordinarily resident” in “the place where in the settled routine of his life he regularly, normally or customarily lives” (at 231), and Justice Ivan Rand similarly defined “ordinarily resident” as “residence in the course of the customary mode of life of the person concerned (at 224). It is hard to imagine that, on this definition of “ordinarily resident,” Mike Duffy could be considered a resident of Prince Edward Island, or Pamela Wallin a resident of Saskatchewan, at the time of their appointments to the Senate.

⁷ Reference re. Senate Reform, at para. 110.

⁸ Constitution Act, 1982, ss. 41, 39(2).

⁹ Ibid. s. 47.

¹⁰ Reference re. Senate Reform, at paras. 70, 82, 110

¹¹ Charlottetown Accord draft legal text, October 9, 1992, article 4, retrieved here.

¹² Ibid. at article 5.

¹³ Chris Wood, “Harcourt Resigns,” Maclean’s, November 27, 1995, retrieved here.

¹⁴ “Mulcair Vows to Abolish the Senate Despite Complaints from Quebec,” National Post, June 10, 2015, available here.

¹⁵ The Canadian Intergovernmental Conferences Secretariat is an example of this very sort of intergovernmental secretariat; the Ministerial Council on Social Policy Renewal in the 1990s also had staff support from all of the participating governments.