Reforming the Unreformable?The Challenge of Transforming

the Canadian Senate

F. Leslie SeidleSenior Research Associate

Institute for Research on Public Policy

Presentation to conference ”Different Perspectives on Canadian Federalism: Retrospective and Prospective”

University of Waterloo, 28 April 2007

Institute for Research on Public Policy

Institut de recherche en politiques publiques

Outline of Presentation

• Senate reform and the representation lens• Phases of debates/attempted reforms

– A century of the status quo– Hybrid selection models– House of the provinces– Elected Senate– Incremental reform

• Concluding observations

The Shifting Lens of Representation

• Representation has been a key element of past Senate reform debates– Who is represented?– By whom?– Through what modalities?– To what end?

• Senate reform proposals and processes – a ‘mirror’ of:– the broader constitutional reform agenda – Canadians’ changing values about representation

A Century of the Status Quo

• Appointment of senators for life, by federal government (Prime Minister) alone, soon criticized– first Interprovincial Conference (1887) called for half of senators

to be appointed by provincial governments– reform discussed at 1927 dominion-provincial conference

• Sustained use of Senate appointments for party patronage further weakened senators’ legitimacy

• 1965: senators’ term reduced to age 75– amendment enacted by Canadian Parliament on its own – ‘grandfather clause’ protected existing senators

Hybrid Selection Models

• As part of 1968-71 constitutional round, federal government proposed senators be ‘partly selected’ by federal government and provincial governments

• 1972: Special Joint Committee recommended half each province’s senators be appointed from a list of nominees

• Following 1976 election of Parti québécois, PM Trudeau launched ‘A Time for Action’ initiative (Bill C-60)

• House of the Federation:– members to be indirectly elected – half by House of Commons,

half by provincial legislative assemblies– relevant political parties to be represented proportionately

(based on popular vote in previous election)

Hybrid Selection Models (cont’d)

• ‘Intrastate’ representational role of House of the Federation:– “Federal and provincial legislators both represent regional

interests, although from different perspectives… With more parties represented in the second chamber…the debates would probably be more vigorous, and the confrontation of differing views and their reconciliation would probably be a more open process.”

• Significant provincial government opposition led to reference to Supreme Court of Canada

• Court concluded (1979) Bill C-60 reform would change the Senate’s “essential characteristics” and therefore could not be implemented by Parliament alone

House of the Provinces

• 1979 report of Pepin-Robarts Task Force on Canadian Unity recommended Senate be replaced by a ‘Council of the Federation’– inspired by West German Bundesrat– composed of delegations, headed by premier or a minister, to

whom provincial governments could issue instructions– “The Council of the Federation…could play a major part in

ensuring that the views of provincial governments are taken into account before any central action which might have an impact upon areas of legitimate provincial concern occurs.”

• This ‘interstate’ federalism model was influential for a time – endorsed in various other reports

Elected Senate

• Canada West Foundation earliest proponent (1981 task force) of directly elected Senate– 6-10 senators per province– election by ‘transferable vote’ (reference to Australian Senate)– Senate could be overridden by ‘unusual majority’ of House

• According to task force, its model would:– “Provide the most direct way for effective articulation of regional

concerns within the national government… [Elected senators] would possess a clear mandate for speaking out on behalf of [their] region, and a leverage for achieving concessions…”

Elected Senate (cont’d)

• Election, with weighted seat shares, endorsed by 1984 Special Joint Committee and Macdonald commission

• 1985 Alberta legislative committee endorsed Triple-E; model’s popularity grew

• Meech Lake Accord (1987): – full reform discussions promised following adoption– in the interim, provincial governments allowed to submit lists of

candidates for Senate vacancies – Alberta passed legislation and Stan Waters was ‘elected’ in 1989– PM Mulroney refused to appoint until Accord’s dying days

Charlottetown Accord and its Aftermath

• Charlottetown Accord (1992):– Triple-E, but with quite weak powers– provinces would have set own election methods– Quebec demanded permanent guarantee of 25% of House seats– seats for Aboriginal people on future agenda

• Reform party called Triple-E model ‘anaemic’, not popular in Quebec

• After Accord’s defeat, federal government resisted any talks – would pull governments back into a ‘quagmire’

• PM Paul Martin said he’d be willing to sit down with provincial governments if they could agree on a plan

Incremental Reform: Elements

• Bill S-4: eight-year term for new senators• Bill C-43: ‘advisory’ elections for Senate

candidates• Prime Minister Harper pledged to appointing no

new senators unless ‘elected’ in their province– except Michael Fortier– committed to appointing Bert Brown to Alberta seat

• Elections in other provinces/territories and/or ‘sense of crisis’ could spur fundamental reform

Incremental Reform: Bill S-4

• Bill S-4 amends the Constitution Act, 1867:– to reduce the tenure of senators to 8 years– term would be renewable – current senators’ retirement kept at 75

• Preamble states that:– the government is exploring means ‘to enable the Senate better

to…respond to the needs of Canada’s regions’ – ‘Parliament wishes to maintain the essential characteristics of the

Senate…as a chamber of independent, sober second thought’

• Senator LeBreton: Senate would be “refreshed with new perspectives and ideas on a regular basis”

Incremental Reform: Bill S-4 (cont’d)

• Bill S-4 introduced in Senate on 30 May 2006• Special Senate Committee on Senate Reform held

hearings on subject-matter in Sept 2006• Committee reported on 26 Oct 2006

– amendments in bill could be authorized by Parliament alone (s. 44, Constitution Act, 1982)

– no need for reference to Supreme Court of Canada

• After lengthy second reading debate, referred to Legal and Constitutional Affairs committee – 20 Feb 2007

• Committee held hearings 21-29 March and week of 23 April but has not yet reported

Incremental Reform: Bill C-43

• Bill C-43– provides for ‘consultations’ on candidates for Senate

appointments – leaves formal appointment unchanged: by Governor General on

advice of Prime Minister

• Tabled in House of Commons on 13 Dec 2006, 2nd reading debate began 20 April 2007

• No hearings yet, but some opposition to attempt to skirt general amending formula (s. 38, Constitution Act, 1982) – Quebec and Ontario ministers publicly opposed– Some academics also concerned

Incremental Reform: Prospects

• Government may need to compromise on S-4– non-renewable term (to encourage independence)– longer term (12 years?)

• C-43 unlikely to pass 2nd reading in Commons• Senate ‘blockage’ as election issue?• Even with Conservative majority/renewed mandate,

advisory election plan faces hurdles:– Quebec and Ontario (and others?) could challenge in courts– A few provinces might consider own legislation, but several

would not (Ont, Quebec, BC, Man, Sask)– A Senate vacancies ‘crisis’ in whose eyes?

Concluding Observations

• Reformed Senate’s representational role has shifted over time and remains contested– who/what is to be represented – regions, provinces, their

residents?

– provincial equality principle has lost ground

– diversity dimensions – e.g. Aboriginal people

• Harper government plan says little about this; emphasises ‘democracy’ and ‘accountability’

• Incremental approach has merit, but even S-4 may not emerge from this Parliament

• ‘Creating a crisis’ strategy is suspect