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THE CANADIAN SENATE IN FOCUS1867-2001
Committees and Private Legislation DirectorateMay 2001
THE CANADIAN SENATE IN FOCUS 1867-2001
THE SENATE'S CONSTITUTIONAL POSITION
1. The System of Appointment to the Upper Chamber 2. The Constitutional Powers of the Upper Chamber 3. The Practical Powers of the Upper Chamber 4. Second Chambers in Other Democratic Federations 5. Constitutional Reform and the SenateTHE SENATORS
1. A Statistical Overview of Senate Membership since 1867 2. The Senate versus the House of Commons: Roles and MembershipCONCLUSION
BIBLIOGRAPHY
APPENDIX 1
"If the upper house agrees with the lower it is superfluous, if it disagrees, it ought to be abolished. " - Abbé E.J. Sieyès, 18th century French politician"It is difficult to find a powerful, successful, free democratic constitution of a great sovereign state which has adopted the single Chamber government." - Sir Winston Churchill
Just a few years after the Fathers of Confederation had laboured to define what the nature and role of a second chamber for our new nation should be, the Senate became the target of public and political criticism. Prime Minister Mackenzie was frustrated with the Conservative majority in the Senate, which had defeated some important bills during his first administration. By 1893, Senate reform was included in the Liberal Party platform. Alternately accused of being a rubber stamp when it passes legislation quickly or of overstepping its mandate as an appointed body if substantive amendments are proposed or the power of veto is exercised, the Senate has never gained the reputation, and thereby position, its many achievements should have earned for it as an institution.
Questions on the role and usefulness of the Senate have persisted for more than a century and, along with them, arguments and proposals for Senate reform. The following review of the Senate, from both historical and current perspectives, will attempt to answer some of the questions, clarify some of the arguments and generally bring the Canadian Senate into reasonable focus. THE SENATE'S CONSTITUTIONAL POSITION
"... in the Upper House, - the controlling and regulating, but not the initiating, branch - ... in the House which has the sober second-thought in legislation, it is provided that each of those great sections shall be represented equally" - Sir John A. Macdonald
1. The System of Appointment to the Upper Chamber
Of approximately 50 bicameral legislatures in the world, Canada's was designed to serve the distinct needs of this unique federation. The preamble of the Constitution Act 1867 sets out the decision of the federating provinces to adopt a constitution "similar in principle to that of the United Kingdom." Thus our two Houses of Parliament were patterned after those of Britain, with two intentional exceptions only: as a young country without an aristocracy, Canada's upper chamber could not be occupied by hereditary peers, but rather would house mature men (and, some time later, women) of diverse experience summoned by the Governor General on the recommendation of the Prime Minister; and secondly, the principal geographic regions of Canada would be represented equally. In the Commonwealth tradition, the Senate would primarily play a revising role, although its power was that of absolute veto. The lower chamber would be elected on the principle of representation by population.
The Constitution Act required that prospective senators be subjects of the Queen, be at least 30 years of age, have their permanent residence in the province (or, in the case of Quebec, one of its 24 senatorial divisions) for which they were appointed, and possess at least $4,000 in real property. The latter provision is of little consequence today, although it could serve to ensure that senators are solvent. In 1867, the property qualification permitted the Senate to represent a further "minority" beyond those of the regions: the propertied classes. Originally appointed for life, in 1965 the Constitution was amended so that senators appointed after that date would be required to retire at age 75.
The Fathers of Confederation chose not to apply the principle of equal provincial representation in the Senate due to Canada's singular situation whereby one of its largest and most populous provinces also embodied a cultural and linguistic minority in the country. To have given Quebec the same number of senators as other less populous provinces that do not have any significant minorities would have defrauded that province of the opportunity for its French-speaking minority voice to be heard.
The solution was found through weighing Senate representation to favour the less populous provinces. An equal number of appointments would be made to Canada's main regions which were, at the time of Confederation, Canada's two most populated provinces -- Ontario and Quebec, and the Maritime provinces - New Brunswick, Nova Scotia, and Prince Edward Island. Both Ontario and Quebec would have 24 senators each, while New Brunswick and Nova Scotia would be represented by 10 senators each and Prince Edward Island by four. By 1867, Prince Edward Island chose not to enter into the Canadian union immediately, and New Brunswick and Nova Scotia were granted 12 senators each to match Ontario's and Quebec's 24, for an original Senate of 72 members. Eventually, New Brunswick and Nova Scotia would drop their membership back to 10 senators each to provide four seats to Prince Edward Island and 24 more senators would be appointed to represent the four Western provinces (six each). Thus the four main regions of Canada - the Western provinces, Ontario, Quebec and the Maritime provinces -- are equally represented with 24 senators each. The balance was somewhat skewed when Newfoundland became a Province of Canada in 1949 and six more (maritime) senators were appointed. The Yukon and Northwest Territories were each granted one Senate representative in 1976 and Nunavut received a representative in 1999, for a current total of 105.
The Fathers of Confederation were perhaps predisposed to the idea of an appointed upper chamber due to the experience of many of the provinces. Most of the British North American provinces had established appointed legislative councils to complement the work of their elected assemblies, with the exception of Prince Edward Island whose legislative council was elected.1 The Province of Canada, created when Upper and Lower Canada (later to become Ontario and Quebec) united in 1840, had an appointed Legislative Council until 1856, when a bill was passed to gradually replace the Council with elected members. The experience of the Province of Canada with an elected Council had not been favourable for various reasons, including the disinclination of worthwhile candidates to run for election due to the considerable cost of seeking votes in very large, 19th century constituencies, as well as the practice of appointing councillors to the ministry, which purposely had served to diminish its role as a check on legislation. Furthermore, the Council was acquiring "ambitious members who sought to make an active political career and became in effect 'a second edition of the assembly'."2 The United States Senate, whose senators were appointed by state legislatures at the time of Canadian Confederation, only confirmed the notion that Canadian senators should be centrally appointed, as the Fathers of Confederation were of the opinion that it was the power struggle between the states and central government that had precipitated the American Civil War.
The concept of having an elected upper chamber was also unappealing to the Fathers, as it begged the obvious question of whose will would prevail if both Houses were composed of the chosen representatives of the voting public. "In their opinion [the Fathers of Confederation], both chambers would see themselves as popular assemblies capable of reflecting the will of the people -- a recipe for conflict and stalemate."3
Many provinces abolished their upper chambers within years of their entering the federation, although some lasted longer, such as Quebec's Legislative Council which remained in place until 1968. One of the main reasons for this abolition was that the original federal upper chamber had principally drawn upon the members of the provincial legislative councils for its appointments4, and another, the great expense to the provinces of maintaining second chambers.
Ultimately, the appointed federal chamber was charged with two important tasks by our constitutional authors: in the British tradition, its principal duty would be the revision and correction of legislation from the popular chamber, which would require "impartiality, expert training, patience and industry"5 in tandem with the representation of provinces, regions and minorities. Yet the Senate would go on to perform functions the Fathers of Confederation had not imagined.
2. The Constitutional Powers of the Upper Chamber
A full six out of the fourteen days the Fathers deliberated at the Quebec Conference in 1865 were devoted to discussing the Senate. In fact, Confederation would not have taken place at all if there had not been agreement on the Senate because, with the House of Commons membership based on representation by population, both Quebec and the Maritime provinces made it clear that they would not enter into the union without a Senate for fear that the populous Province of Ontario would take control. Beyond the need for increased representation for the smaller provinces, our constitutional authors did not want to leave all the power in the hands of the "popular element," but aimed for a Senate that would act as a check upon the House of Commons.6 Sir John Alexander Macdonald recognized that this could not be achieved unless the upper house were granted the power to oppose, amend or postpone legislation from the lower Chamber. Nevertheless, such extensive power would have to be used with care; Macdonald pointed out that the Senate "will never see itself in opposition against the deliberate and understood wishes of the people7." George Brown, an Upper Canadian Liberal and later a senator himself, added that the Senate would have to refrain from vetoing money bills.8
Patterned after the British House of Lords, section 53 of the Constitution Act denied Canada's Senate the power to introduce bills "for appropriating any part of the public revenue, or for imposing any tax or impost." This section has been subject to varied interpretation through the years, ranging from George Brown's simple observation in 1865 that the Senate should not veto money bills, to the all-inclusive interpretation that the Senate should not amend or delay such legislation in any way (generally espoused by the House of Commons), to the view that the Senate has the power to do all save introduce financial legislation or amend it in a way that would cause an increase in tax or appropriation.
Controversy about the Senate's powers with regard to money bills seems to lie in the fact that, by 1867, the House of Lords had reluctantly resigned its power to amend money bills coming up from the Commons. In search of clarification, the Senate referred the question on its power with regard to financial legislation to a special committee chaired by Senator W.B. Ross in 1917. Commonly known as "the Ross Report," the committee's conclusion was that the preamble to the Constitution Act, which stated that Canada's Constitution was to be "similar in principle to that of the United Kingdom," did not override the language of section 53, which only prevented the Senate from introducing appropriation and taxation bills. The Ross Report was adopted unanimously by the Senate on May 22, 1918.9
When establishing the provisions for the upper chamber, the Fathers of the Canadian federation did not provide a mechanism to break a deadlock between the two Houses, as they believed the governments would be short-lived and that such a mechanism would not be necessary, nor did they want the governments of the day to follow the British practice of swamping the Senate with extra members simply to "carry out their own schemes.10" The British, based on their experience, advised our constitutional fathers to create a deadlock mechanism, however small, which they did. Similar to the swamping principle in the House of Lords but on a far lesser scale, the Constitution Act contained in sections 26 to 28 provision for the appointment of one or two extra senators from each of the three (later four) regions. Under section 26, the maximum number of senators could be increased by three or six senators (later four or eight) as required to break a deadlock. Although at least two Prime Ministers considered invoking section 26 as far back as Prime Minister Mackenzie in 1873, the appointment of senators over and above the usual 104 was not used until 1990 when Prime Minister Mulroney appointed eight additional senators to pass the Goods and Services Tax. This is not to say that use of this measure to ensure passage of controversial legislation was not considered before the GST was introduced, but rather that invoking section 26 would not likely have produced the desired results, because the Opposition majority was too large to be overturned by eight additional government supporters.
In addition to its power to initiate all but financial legislation as well as that of absolute veto, the Senate was dealt a strong hand in 1867 on how Canada's Constitution would be altered in the future, since its concurrence would be required to make any constitutional amendments. The Senate exercised its right to refuse on only two occasions: in 1936 when it failed to pass an amendment to the Constitution that would have widened the provinces' rights to tax, and again in 1960 when it changed a constitutional amendment by freeing district and county court judges from an age 75 retirement requirement, leaving the age limit to apply to superior court judges only. The House of Commons concurred11. The requirement of the Senate's concurrence for constitutional amendment was revoked with the patriation of the Canadian Constitution in 1982, although the Senate maintains a 180 day suspensive veto on such amendment.
In being able to amend, postpone and veto legislation, the Senate was constitutionally granted the power needed to make it effective. Yet, due to its appointed nature and in the shadow of public criticism, the Senate has often refrained from exercising this power.
3. The Practical Powers of the Upper Chamber
