“The first selection of the Members of the Legislative Council shall be made, except as regards Prince Edward Island, from the Legislative Councils of the various Provinces, so far as a sufficient number be found qualified and willing to serve; such Members shall be appointed by the Crown at the recommendation of the General Executive Government, upon the nomination of the respective Local Governments, and in such nomination due regard shall be had to the claims of the Members of the Legislative Council of the Opposition in each Province, so that all political parties may as nearly as possible be fairly represented.”

— Fourteenth resolution of the Quebec Conference, October 1864

The scandal provoked by the expense claims of individual senators has obscured a deeper malaise surrounding the Senate – one that dates back to Confederation. This malaise has to do with the reasons why the Fathers of Confederation established a Senate in the first place, and with their failure to follow through with a selection procedure that would have made it possible for the Senate to perform the function intended for it.

Montesquieu wrote of the British Constitution, “Political liberty is to be found only … when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go … To prevent this abuse, it is necessary from the very nature of things that power should be a check to power.” That is what the Senate was meant to be: a power that acts as a check to power. Specifically, it was to represent the check the provinces were meant to exercise to hold those in power in Ottawa accountable and prevent their abuse of it. The Senate exists to protect the local and regional interests of the provinces within the federal legislative process.

Our constitution vests all the discretionary powers of the state in the governor general. However, he does not possess the authority to exercise these powers. We vest this authority, by democratic election, in the representatives we elect to Parliament and to our provincial legislatures. The governor general’s most fundamental duty, as representative of the Sovereign, is to sanction the exercise of these discretionary powers. He sanctions that the people authorize their government to exercise these powers when Parliament, through his Privy Council, advises him to do so.

Today, only the House of Commons, through the prime minister of Canada, is active in the Governor’s Council. Thus it is that the governor general must sanction the exercise of all the discretionary powers of the state upon the unopposed advice of the prime minister. Without the constitutional balance that the Senate was meant to provide, the Office of the Governor General functions as a rubber stamp for the Prime Minister’s Office.

However, section 18 of our constitution, as confirmed by section 4 of the Parliament of Canada Act, provides both the Senate and the House of Commons with the same powers and privileges as those belonging to the British House of Commons at the time of Confederation. This is so because the Senate was meant to be a representative institution, as representative of our wishes and interests as the House of Commons in the federal Parliament of Canada.

Because Canada is a federation of provinces, the people’s political will regarding how they wish to govern themselves is divided. While the members of the House of Commons represent our will to be governed in common throughout Canada, the Senate was instituted to represent and protect those purely local interests which the people want diversely governed by the provinces. Thus, section 22 of our constitution states over and over that senators “shall represent” the provinces in the Parliament of Canada.

Hence, both houses of our federal Parliament are needed for the people’s political will to be fully expressed. It follows that to lawfully sanction the exercise of the powers of the state, the Governor-in-Council must obtain the undivided authority to do so through the advice of both houses of our federal Parliament.

If the provinces were properly represented in the Senate and the Senate was properly represented in the Governor’s Council, then they could object if the prime minister attempted to advise the governor general regarding the appointment of senators on the ground that the provinces do not vest the prime minister with the authority to choose who shall represent them in the Senate. They could uphold their exclusive constitutional jurisdictions if the prime minister advised the governor general that the constitution provides him with the spending power to do as he pleases in provincial jurisdictions. They could uphold their common law right to participate in the selection of the governor general of Canada.

In their research for the Macdonald Royal Commission in the 1980s, Donald Smiley and Ronald Watts wrote,

“The role and impact of a second chamber within a federal system is derived not only from its constitutional powers but also from the method of selection for its members and the composition of the chamber. Appointment by the central government is an arrangement unique to Canada. Elsewhere, this has generally been considered inappropriate if the members of the second chamber are to be genuine representatives of regional interests.

The accepted reason for a second chamber in the Parliament of Canada is to protect provincial and regional interests. However, many believe that the Senate is inherently and irretrievably incapable of performing this role effectively because its members are appointed by the Governor-in-Council, in effect by the prime minister.”

The 14th resolution of the 1864 Quebec conference, which laid the groundwork for the constitution of 1867, states that the Crown shall appoint the members of the Upper House “so that all political parties may as nearly as possible be fairly represented.” It is clear that the Fathers of Confederation intended that the provincial political parties be fairly represented in the Senate. This resolution thus provides for the proportional representation of all provincial political parties in the Senate! In this way, the Senate would harmoniously reflect the local and regional wishes and interests of the people, as expressed in their provincial parliaments.

Despite the 14th Quebec resolution, a Senate selected in this way was nowhere specified in the text of the Constitution Act, 1867. However, section 32 does specify that the Governor General must fill a vacancy that arises in the Senate by appointing “a fit and qualified Person” (in French, “quelque personne capable et ayant les qualifications voulues”). Clearly, an appointee must be “fit” or “capable” to exercise the office of senator which, according to section 22, means to represent the provinces in Parliament. Both “fit” and “capable” mean more than possessing the abilities required to exercise the office of senator. They both require that the senator possess the authority to act on behalf of the province they represent.

The prime minister of Canada can possess no more authority than what our representatives in the House of Commons may confide in him. We elect our federal MPs to represent and protect how we wish to govern ourselves in common throughout Canada. We elect our provincial representatives and vest them with the authority to represent and protect our local interests in the government of our province. The prime minister of Canada therefore cannot possess the authority to represent and protect the interests of the provinces. If he does not possess this authority he cannot confide it so as to constitute a senator with the legal capacity to represent a province in the Senate. If he does not possess this authority he does not possess the capacity to advise the governor general regarding who would be “fit” to occupy the office of senator.

The representative character of the Senate was ensured by section 30, which specifically permits a senator to resign. Within the context of the times, it was understood that if a senator was made to feel that he no longer represented the wishes and interests of the authority to whom he owed his appointment, honour would oblige him to resign. Today, if provincial political parties selected senators, a party would require its choice of senator to sign an undated resignation guaranteeing that he or she maintains its confidence, and thus the authority to speak and act on its behalf and on behalf of its constituents.

The 14th resolution provided for only the first selection of senators to proportionally represent the provincial political parties because this was the extent to which the Fathers of Confederation could agree. A number of them argued that each province should be free to select their representatives otherwise when and as they best see fit. They would naturally have assumed that the representative principle underlying the first selection of senators would continue until their province determined otherwise. They certainly did not foresee that the federal government would be structured to exclude the provinces from advising the Governor General of their choice of representative.

However, from the time of Confederation to the present, those in power have feared the kind of check that an effective, representative Senate could provide. As a result, they have encouraged the misconceptions that have led to the mess we have today. The current crisis of the Senate provides an opportunity to consider returning to the original purpose and structure for Canada’s Upper House that the Fathers of Confederation put forward in 1864.