“I look at the problems in other countries like the United States and Europe, where political gridlock, over deficit crises and debt crises, is leading to a real economic uncertainty and political instability. We’re very fortunate we don’t have that … We have to make sure here that we continue to be able to make decisions and stay focused.”

Who said this? The Conservative House Leader, Peter Van Loan, on December 8, 2011, while trying to justify his government’s record use of time allocation.1

So why does the Conservative government now propose a Senate reform that is sure to create exactly what Mr. Van Loan decried, political gridlock, at the heart of our federal institutions? Why do Prime Minister Stephen Harper and Democratic Reform Minister Tim Uppal promote Bill C-7, “An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits”? Of all the bills currently in discussion in the Parliament of Canada, this could well be the most dangerous for the future of our country. Whatever our partisan orientation, we need to realize the danger and stop this bill.

It is a well-known law in political science that the problems of tomorrow are often the result of the ill-conceived institutional reforms of today. That is exactly what is at stake with C-7.

If the bill becomes the law of the land, the result will be either a new constitutional dispute or a harmful burdening of our federal decision-making process – or a combination of both. These scenarios are particularly unwelcome when we should be combining our efforts to face the economic, social and environmental challenges of our time.

Technically, the bill would grant the prime minister the power to limit a senator’s mandate to nine years and appoint senators through a patchwork of voluntary provincial senatorial elections. The problem with this plan is that it would create a system with two elected chambers duplicating each other, creating delays and roadblocks in Parliament. It would bring to Canada the same paralysis we see in the United States or Mexico.

Canada is a decentralized federation whose 14 member governments (including the territories) have huge powers and responsibilities. In such a decentralized federation, it is important that federal institutions, common to all citizens, be able to work well and quickly when drafting legislation or making decisions. Federal institutions should not be constantly hampered by opposition between two elected chambers.

A recipe for gridlock

We need to keep in mind that the nominal constitutional powers of our Senate are the same as those of the House of Commons, except for two restrictions:

• First, financial legislation must be introduced in the House; the Senate may amend financial legislation but not increase taxation.
• Second, the Senate has only a suspensive veto of 180 days on constitutional amendments.

Our Senate almost always gives the last word to the House; it reviews the House’s legislative work and can suggest amendments, but almost never vetoes House decisions. As an unelected body, the Senate leaves the final word to the only chamber that is elected by the Canadian people.

But if senators are elected, on the basis of political platforms and commitments to voters, they will be entitled – and, it may be argued, will have the duty – to exercise their nominal constitutional powers to their full extent. No longer will they have any reason to let their House colleagues have the final word. In some ways, C-7 would make them stronger than MPs: senators would represent larger constituencies than MPs (provinces rather than ridings); they would be elected for longer terms (nine years instead of four); and they would have a smaller number of peers, which is in itself a source of prestige and clout (105 senators compared to 308 MPs, or 338 after Stephen Harper’s House reform).

An elected Senate will not limit itself to complementing the House of Commons, but will rather duplicate it and, very likely, oppose it on numerous occasions. We need to take full measure of the impacts such a departure from current practice would have.

A 2009 study shows that between 1994 and 2008 the Senate amended 9 per cent of the bills passed by the House and explicitly rejected only two of 465.² If we had an elected Senate, how many bills would it reject? A quarter? Half? We need only look at the U.S. Congress to figure out how frequent and lengthy the blockages would become. In fact, the situation could be even worse here than in the United States, because Canada does not have a constitutional mechanism to resolve disagreements between two elected chambers claiming the same legitimacy to speak for the people.

Queen’s University Professor Ron Watts looked at 25 democratic federations.³ In each and every one, Professor Watts found the existence of deadlock-breaking mechanisms. These may consist of mediation by conference committees (United States), giving the second chamber a suspensive veto only (India), limiting the absolute veto of the second chamber to matters under state jurisdiction (Germany) or a double dissolution followed by a joint sitting (Australia). Every federation with two elected chambers has found it indispensable to establish a dispute-settlement mechanism. What Mr. Harper wants to impose on Canada is an irresponsible and dangerous precedent.

In addition to these deadlock-breaking mechanisms, every federation with a parliamentary system such as Canada’s made sure that the second chamber would be less powerful than its equivalent of our House of Commons. In only one of these federations, Australia, is the second chamber directly elected, but deadlocks there are broken through joint sittings where senators are vastly outnumbered by MPs.⁴ It should be noted that Australia is a more homogeneous and centralized federation than Canada. The largest Australian state is only 12 times more populous than the smallest, compared with 70 times in Canada. The three largest states have half the seats and cannot be outvoted by the smallest ones.⁵

The second chamber’s constitutional powers are more limited in parliamentary systems because the first chamber, the one elected nationally on the principle of “rep by pop,” is the “chamber of confidence” – the chamber to which the government is responsible and which may cause the government to fall. Presidential systems (such as the United States) are different in that executive authority stems from the direct election of the president. The president is not responsible to the House or Senate, which is why the two chambers may have roughly equal powers and equal weight in the dispute-settlement mechanism.

A blow to Alberta and British Columbia

Wrong for the whole of Canada, this bill is especially unfair and ill-conceived for two of our provinces, Alberta and British Columbia, which are underrepresented in the Senate. The distribution of seats in our Senate does not reflect the demography of today; it results from the history of a country that was built from east to west.

Let us look at the numbers. Alberta has 9.1 per cent of the total number of members of Parliament, but only 5.7 per cent of the senators (six out of 105). The gap is even larger for British Columbia, with 11.7 per cent of the members in the House of Commons and only 5.7 per cent of Senate members. By contrast, New Brunswick counts ten senators for a population 4.8 times smaller than Alberta’s and 6.1 times smaller than British Columbia’s. This unbalanced distribution of Senate seats, a historical artefact, is a problem for the two western provinces and an anomaly for our federation. The government’s reform would make the situation much worse.

In our existing unelected Senate, this deficit of representation is mitigated by the fact that the senators play their constitutional role with moderation, letting the elected House of Commons have the final word most of the time. In a powerful and elected Senate, the underrepresentation of British Columbia and Alberta would take on its full scope and significance. Of course, elected senators from the other provinces would not be hostile to the interests of Alberta and British Columbia, their duty being to address the interests of the whole country. But these senators would be more familiar with – and closer to – the interests of the voters of the province where they were elected.

So why do Stephen Harper and Tim Uppal, two Albertans, want to hurt their province with C-7? The bill will render unsustainable Alberta’s and British Columbia’s underrepresentation. Both British Columbia Premier Christy Clark and former Alberta Premier Don Getty rightly point out that this version of Senate reform would be bad for their respective provinces. Most constitutional experts from these two provinces have said the same.

Running afoul of the constitution

If the bill as it stands would impose on Canada a ritual gridlock between two elected chambers having the same powers and create a powerful Senate where Alberta and British Columbia would be grossly underrepresented, why not simply improve C-7? Why not add a modification of the Senate’s powers, a provision for a dispute-settlement mechanism and a reallocation of Senate seats that would be more respectful of the demographic weight of Alberta and British Columbia? The answer is very simple: it would be unconstitutional to do so through an act of Parliament alone. In addition to Parliament’s agreement, the support of the provinces would be needed.

In fact, Bill C-7 as it stands now is already unconstitutional. That is the view of the overwhelming majority of constitutional experts and of many provincial governments. Quebec Premier Jean Charest has announced that if this unilateral Senate reform goes forward, his government will challenge its constitutionality in the courts. It is very likely that he would win his case.

The changes C-7 proposes cannot be implemented by Parliament alone, unilaterally. The Supreme Court of Canada said in 1980 that Parliament cannot alter the “fundamental feature or essential characteristics of the Senate.” According to the Court, “to make the Senate a wholly or partially elected body would affect a fundamental feature of that body.” Section 42.1(b) of the Constitution Act, 1982, explicitly mentions “the powers of the Senate and the method of selecting senators” as matters that may be amended only with the support of Parliament and the legislative assemblies of seven provinces representing at least 50 per cent of the population of the provinces.

The government claims that C-7 does not affect the selection of senators, even though the title of the bill is “An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits.” The schedule to Bill C-7 refers to a new “framework for the selection of senators.” How can it be possible to change the “framework” without changing the method of selection? It is even worse in French, to the point of being ridiculous: Bill C-7 refers to “le cadre du processus de sélection des sénateurs.” Clearly the bill’s drafters were very creative in avoiding the use of the word method or méthode.

The government argues that the election process will remain optional (the provinces will be free to hold these elections or not), that the prime minister will not be compelled to choose the elected candidate and may decide to choose somebody else and that, in the end, nothing will change since senators will still be summoned by the governor general at the recommendation of the prime minister.

This line of defence is disingenuous. It cannot seriously be claimed that the method of selecting senators encompasses only the legal powers of the governor general. Professor John Whyte, Chair of the College of Law of the University of Saskatchewan, points out that the method of selecting persons for appointment cannot be reduced to the means of appointment only; it certainly includes the fact that senators are not elected and likely also includes the duration of an appointment.⁶

The least that can be said is that the courts are unlikely to accept the government’s narrow interpretation of the constitution. Simon Fraser University professor Andrew Heard, expressing an opinion supported by the overwhelming majority of constitutional experts, writes, “The courts have proven many times that they intend to protect the substance of the institutions and principles that are given life by the Constitution.”⁷ Even Justice Canada’s General Counsel, Warren J. Newman, said some years ago to the Special Senate Committee on Senate Reform that the basic questions to ask in assessing the constitutionality of a Senate reform bill are the following: “What is, in pith and substance, the legislation about? What is its effect? Is it an incidental effect and one that we can live with or one that is so fundamental that there is a real problem to it?”⁸

Clearly the pith and substance of C-7 is to achieve an elected Senate. It transforms an appointed chamber into an elected one. The Court is very unlikely to conclude that the new voting process will not actually change the government’s appointing practices. Parliament will have prompted, by law, the provinces and territories to hold these senatorial elections which, each time, will cost candidates and taxpayers huge efforts and millions of dollars. The purpose of C-7 is precisely to apply political pressure on the prime minister to recommend to the governor general the winners of these provincially held senatorial elections.

The government tried to make C-7 less vulnerable to a Court challenge by stipulating that the provinces and territories, not Ottawa, would hold these senatorial elections. The Supreme Court is unlikely to be impressed by this device. It is a well-known constitutional principle that governments must not attempt to accomplish indirectly what they are constitutionally forbidden to do directly. This is exactly what the government is trying to do with C-7.

The character of our Senate

So it is clear that C-7 violates the letter and the intent, the pith and substance of the constitution. It also flies in the face of what the Fathers of Confederation intended to achieve. Having considered an elected Senate, they ultimately decided to reject it. Likewise, a nine-year term was proposed but rejected as not lengthy enough.

What the Fathers of Confederation decided was that the Senate should be “a chamber of sober second thought” (une Chambre de second examen objectif). As Janet Ajzenstat described it, the Fathers wanted the Senate to have “the power of the check.”⁹ Its role would be to check the power of the popularly elected House. In the words of John A. Macdonald,

It must be an independent house having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch and preventing any hasty or ill-considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people.¹⁰

The Senate is the place:

• where “obstructionism has been the exception rather than the rule”;¹¹
• that amends House bills, at a significant rate of 8 to 10 per cent,¹² but almost never defeats them;
• that makes suggestions often incorporated in House bills before they come to the Senate;
• that produces a lot of well-considered policy reports;¹³
• that is a partisan body, but clearly less so than the House, with more collegiality and more of a tradition of independent voting, since it is not the chamber of confidence and since senators do not need to seek reappointment from the prime minister;¹⁴
• where seniority and experience are highly valued and where leadership positions (speaker, caucus leaders, whips, chairs of committees) are disproportionately held by the most senior senators with more than eight years of office;¹⁵
• where long mandates conform to the “checking role” of the Senate, especially in the context of an exceptionally high rate of turnover among the members of the lower chamber;¹⁶
• where senators enjoy more time than their colleagues in the House to focus on their role as legislators since they do not have the heavy burden of constituency work;
• where an exceptionally wide range of political, professional, business, academic and artistic experience can be found (the 870 senators appointed between 1867 and 2008 include three former prime ministers, 22 former premiers, 305 MPs and 416 from municipal offices);¹⁷
• where significantly more women and minorities are sitting than in the House of Commons – as of 2008, women made up 34 per cent of the Senate and 21 per cent of the House, while Aboriginals made up 7.7 per cent of the Senate and 1.3 per cent of the House.¹⁸

In 2009, Hugh Segal, a Conservative senator appointed by Liberal Prime Minister Paul Martin and a strong supporter of an elected Senate, wrote,

My own experience both with the Senate and senators over three decades, and my explicit experience since being appointed in 2005 … leads me to agree wholeheartedly with those who extol the sense of honour, duty, diligence and public service that inspires the vast majority of those who have served or do serve in our Chamber. Conservative ministers like Peter Van Loan, who have attacked the people and the institution, reveal more about their mean-spirited myopia and institutional inexperience.¹⁹

In sum, what we have today is what the Fathers of Confederation had in mind: a complementary chamber of scrutiny and amendment. An elected Senate would signify a radical change in our parliamentary system because it would entirely refashion the relationship between the House of Commons and the Senate.

Considerations for Senate reform

Confederation was a long time ago, and it is legitimate today to propose reforms that would incorporate Senate elections or term limits for senators. But it cannot and must not be done through a process that excludes the provinces. All of Canada’s constitutional partners must be at the table in order to respect our constitution and the federative character of our country.

I myself am sympathetic to the view that in a democracy, all parliamentarians – as legislators who make, refine or reject the laws – should be elected. We Liberals supported the 1992 Charlottetown Accord, which included an elected Senate in a comprehensive constitutional reform that provided a limitation of the Senate’s nominal powers. But I do not want Canada to be subjected to the risk of a gridlock à la U.S. Congress, where the two elected chambers routinely paralyze each other. I do not want the two western provinces of my country to be treated unfairly.

We need to consider how an elected Senate would change our federation. Our Senate was conceived as the legislative upper house of a bicameral Parliament, not as a provincially appointed body along the lines of the German Bundesrat.²⁰ In our current Parliament, regional interests are mostly accommodated behind closed doors, within party caucuses, according to a parliamentary system based on ministerial solidarity. With an elected Senate, these regional interests would be more openly expressed, although they would not necessarily be more effectively translated into adopted policies.²¹

Some support an elected Senate as a means to diminish the influence of the premiers, strengthen federal institutions and policies and recentralize one of the most decentralized federations in the world.²² Others, like Senator Bert Brown, prefer to think that an elected Senate would resolutely be a provincialist body, where senators would stick to the views of the provincial voters who elected them.²³ Nobody knows for sure what an elected Senate would do to our federation. But if we look abroad (United States, Australia), we see that an elected Senate essentially duplicates the partisan cleavages and ideological polarization of the lower chamber.

The electoral regime set up by C-7 would have senators appointed through optional provincial or territorial elections. Funding for these Senate elections would come from the provinces and territories, and even though they would be federal elections, the federal parties would be excluded from the electoral process. Indeed, candidates would run for the Senate under provincial party affiliations, not federal ones, and anyone seeking to run for a federal party would be labeled an “independent.”

As provincial or territorial rules would govern these Senate elections, this raises the prospect of a Parliament with members elected under very different terms – some with corporate money, some with money from outside the province, some with unlimited budgets and others not.

A number of provinces have objected to the idea of holding these Senate elections in conjunction with provincial elections because one would detract from the other. Indeed, the issues would presumably be different, not least because the responsibilities of the officials being elected are different. Some might argue that it would be more sensible to hold Senate elections at the same time as a federal general election. But this could allow a party to circumvent federal restrictions on spending and advertising by funnelling messages through senatorial candidates (arguably a new and updated version of “in-and-out”).

Bill C-7 states specifically that the chief electoral officer and other electoral officials of the province or territory would be the election officials for purposes of the Senate election. In other words, if a Senate election was held at the same time as a general federal election, there would be two separate sets of officials running the two elections. By law, there could be no economies of scale. Taxpayers would be paying double. Expensive and confusing!

So it comes as no surprise that a number of provincial governments have said they have no intention of allocating funds to these senatorial elections. We would have, for years, a hybrid body, partly appointed, partly elected. This whole scheme makes no sense at all.

Abandon the bill, or refer it to the Supreme Court

I know that some people, while agreeing with most of what I have said, are still supportive of Bill C-7. They argue that we need to start somewhere. After no fewer than 21 proposals to modify the Senate since Confederation, they say, “Enough with this frustration. Let’s just elect the Senate, or some senators, and we will figure out what to do after.” Professor Roger Gibbins eloquently expressed this view when he testified some years ago before the Standing Senate Committee on Legal and Constitutional Affairs: “We need a trigger … That is why I have argued for this kind of creative destruction, or whatever it is, a way of destabilizing the status quo to the point where we are prepared or forced to address more fundamental structural questions.” He continued: “It’s an argument I’ve always been hesitant to go public with. But the only way you end up with more comprehensive reform is if you destabilize the status quo to the point where Canadians say, ‘This is a mess, and we’ve got to sort this out.’”

Well, let’s call a spade a spade. This “creative destruction,” this mess that Professor Gibbins wants to “trigger” has another name: a new round of constitutional meganegotiations. This is what would be needed to correct the damage C-7 would inflict on Alberta, British Columbia and the whole of Canada. Prime Minister Harper knows that very well. He admitted to the Special Senate Committee on Senate Reform on September 7, 2006,

I can just say that my frank hope is that the process would force the provinces and others to, at some point in the future, seriously address other questions of Senate reform. There are questions such as the distribution of seats and the powers that we are all clear must be addressed through a general amending formula, constitutional amendment.

I do not remember the Prime Minister, during the last election campaign, promising Canadians a new round of constitutional meganegotiations. I say “mega” because there is no way these negotiations would focus only on the Senate issue. Since the Quebec National Assembly never agreed to the Constitution Act, 1982, the Quebec government would insist on resolving this issue before even considering Senate reform. And Aboriginal leaders would want to discuss their own issues, and so on and so forth.

The Prime Minister must come clean with Canadians. Does he want to reopen the constitution? Yes or no? If yes, he must say so, and explain to Canadians why he kept that hidden during the last election campaign. He must tell us why he thinks the governments of our federation should immerse themselves in new constitutional meganegotiations instead of putting all their efforts into economic recovery and job creation. Good luck to him. I don’t think Canadians will be impressed.

There is only one solution that makes sense for Canada: that the government abandon this bill, or at least refer it to the Supreme Court to verify its constitutionality as it did for the issue of a national securities regulator. The Supreme Court of Canada ruled that creating a national securities regulator was an unconstitutional invasion of the provinces’ power over property and civil rights. I am convinced that, similarly, the Court would declare C-7 unconstitutional. If the government is unwilling to do the right thing, it should at least allow the Supreme Court to do so.

Notes

¹ CTV, Question Period, December 8, 2011.

² Andrew Heard, “Constitutional Doubts about Bill C-20 and Senatorial Elections,” in Jennifer Smith, ed., The Democratic Dilemma: Reforming the Canadian Senate (Montreal & Kingston: McGill-Queen’s University Press, 2009), pp. 81–96.

³ Ronald L. Watts, “Federal Second Chambers Compared,” in Smith, ed., Democratic Dilemma, pp. 38–39.

⁴ Ronald L. Watts, “Bill C-20: Faulty Procedure and Inadequate Solution,” in Smith, ed., Democratic Dilemma, pp. 59–62.

⁵ Paul G. Thomas, The Powers of a Reformed Senate. A Discussion Paper Prepared for the Ministry of Intergovernmental Affairs (Toronto: Government of Ontario, 1992), p. 35.

⁶ John Whyte, “Senate Reform: What Does the Constitution Say?”, in Smith, ed., Democratic Dilemma, p. 106.

⁷ Heard, “Constitutional Doubts,” p. 96.

⁸ Special Senate Committee on Senate Reform, September 7, 2006, 2:43.

⁹ Janet Ajzenstat, “The Origins of the Canadian Senate,” in Serge Joyal, ed., Protecting Canadian Democracy: The Senate You Never Knew (Montreal & Kingston: McGill-Queen’s University Press, 2003), p. 22.

¹⁰ Ibid, p. 13.

¹¹ Hugh Segal, “Senate Reform and Democratic Legitimacy: Beyond Stasis,” in Smith, ed., Democratic Dilemma, p. 175.

¹² Heard, “Constitutional Doubts,” p. 123.

¹³ Ibid, p. 127.

¹⁴ Ibid, p. 126.

¹⁵ Ibid, p. 133.

¹⁶ Lorna R. Marsden, “Thoughts on Senate Reform,” in Smith, ed., Democratic Dilemma, p. 186.

¹⁷ Heard, “Constitutional Doubts,” p. 126.

¹⁸ Ibid, p.127 (June 2008 data). See also Louise Carbert, “Senate Reform: What Does Bill C-20 Mean for Women,” in Smith, ed., Democratic Dilemma, p. 153.

¹⁹ Segal, “Senate Reform and Democratic Legitimacy,” p. 180.

²⁰ David E. Smith, “The Senate of Canada and the Conundrum of Reform,” in Smith, ed., Democratic Dilemma, pp.11–26. See also Janet Ajzenstat, “Harmonizing Regional Representation with Parliamentary Government: The Original Plan,” in Smith, ed., Democratic Dilemma,, pp. 27–36.

²¹ Watts, “Federal Second Chambers Compared,” pp. 44–45.

²² Tom Kent, “Senate Reform as a Risk to Take, Urgently,” in Smith, ed., Democratic Dilemma, pp. 167–172.

²³ It is Time to Seize the Moment and Reform the Senate, Senate of Canada, November 17, 2011.