For writing this article, I rely on one source, Protecting Canadian Democracy: The Senate You Never Knew, edited by Serge Joyal. It is a compendium of well-crafted and informative pieces written by the ablest of Canadian political writers. It is available from the Toronto Library and also Amazon. It belongs on the bookshelf of every Canadian who is serious about political reform, and about recovering the Canada that every Canadian, from Sir John A. MacDonald and George Brown to Lester B. Pearson and Pierre Trudeau, has fought tenaciously to uphold, and which our current PM is imperilling. My purpose for writing this article is to convince you to look beyond the perennial anti-Senate rhetoric and see that the Senate is for the most part, performing exactly as it should and in the manner Canada’s Founders intended. As for when it has failed to perform as intended, failure is for the most part determined by the extent to which individual Senators depart from the high personal and ethical standards with which anyone aspiring to serve as Senator must uphold, not by some systemic institutional insufficiency.
Calls for the reform or outright abolition of the Senate have been heard since the inception of the BNA Act. Very fortunately for Canada and Canadians, attempts to undermine the Senate were anticipated by people possessing all of the enthusiasm, clarity of vision, and purposefulness which times of nation building are able to inspire.
Janet Ajzenstat, appearing in Protecting Canadian Democracy: the Senate You Never Knew quotes Sir John A.’s justification for the Senate:
We will enjoy here that which is the great test of constitutional freedom – we will have the rights of the minority respected. In all countries the rights of the majority take care of themselves, but it is only in countries like England, enjoying constitutional liberty, and safe from the tyranny of a single despot or of an unbridled democracy, that the rights of minorities are regardedi.
The “unbridled democracy” Sir John is worried about has its modern expression in the majorities awarded Mr. Mulroney and Mr. Harper.
Our Founders were not only visionary and impassioned, but practical. They knew that no one, but no one, likes to share power; but that it is clearly a defining attribute of long term-viable governments that power is shared. They knew there had to be a way to rein in the Executive, our Cabinet, in order to avoid the kind of divisive, reactionary, and oligarchic politics our government is currently practicing and we Canadians are now experiencing, having given Prime Minister Harper a majority. Here is how our Founders did it:
They chose bicameralism as the fundamental parliamentary structure. This choice was motivated by two universal, democratic realities: first, the need to protect minorities from majorities and secondly, to protect the right to non-violent political dissent for those who are not in power.ii
The first democratic reality is that there will always be minorities and regions vulnerable and in need of protection; whether they are the Poor, First Nations, Francophone, or regions of low population density struggling to be heard over the din of localized areas of high population density and its corollary political influence. Canada has worked hard to protect minorities for most of its 146 years. For this outstanding, national attribute we are in no small way indebted to our Founders’ vision of the Canadian Federation and of the irreplaceable role an Upper House would play in addressing the power disparities among regions so far removed and different from one another. According to Gil Rémillard / Andrew Turner, also appearing in Protecting Canadian Democracy: The Senate You Never Knew, the Senate was specifically endowed with powers and responsibilities that guarantee minority interests, whether they are demographic, regional, provincial, or cultural. In fact, “The Upper House was assigned specific contributions by the Fathers of Confederation, and it is unlikely that the provinces would have agreed to unite themselves had this not been the case.”iii The authors of this fine piece go on to provide a quote Lord Sankey, LC, which they excerpted from the Supreme Court’s 1980 response to Pierre Trudeau’s 1978 Constitutional Amendment Bill:
Inasmuch as the Act embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded…iv
With regards to the second democratic reality, that of protecting the right to dissenting political opinion, PM Harper’s kneejerk and ill-conceived way of governing reminds us daily of why Sir John A. et al. structured the Senate in the way that they did.
We have seen open rebellion within his caucus and within the government apparatus itself against his CEO-businessman approach to governing: a parliamentary page who stood up at the opening of the majority session displaying a sign which read, “Stop Harper,” the fractionating of the caucus over the parliamentary whip and the abortion issue, as well as a general discontent among Conservative back-benchers with Harper’s autocratic, business-manager approach to governing and managing people. In business, the Queen is the shareholder/owner, the Executive is the COO and core management team, and back-benchers are the front line managers. In business, practical accountability resolves to the person occupying the lowest level in the company hierarchy who can be held responsible for a particular thing gone awry; in business, the lower managers must parrot the upper manager, even when it goes against their personal values or against the customers for whom the business exists to provide a product or service (say by knowingly shipping a quality non-compliant product). In business, the COO is fired and rewarded with a huge endowment when the business performs poorly.
Fortunately, Canada is a society, not a business. Very unfortunately, Canada is being run by a COO, not a federal minister, first among equals.
Canada is a democratic society, moreover. Dissenting opinion forms part of the process of hypothesis – antithesis - synthesis from which the most thoroughly and energetically debated, best quality decisions emerge. Dissent is as fundamental to this process as the originating idea. To remove either from the decision-making mechanisms of societies, governments or businesses for that matter, is tantamount to removing one of a person’s two legs: there is an ensuing loss of balance and ability to move forward in a deliberate and carefully considered way. Granted, the absence of a Senate fits with our Harper’s kneejerk way of managing a country, because there will be no one in the House of Commons operating under a Harper majority to countermand his perverse whimsicality; however it does not fit with the federal vision of Sir John A., George Brown, the French, the Maritimers, the First Nations, and every province and territory existing within Canada – and those who signed on with the vision of Sir John A. so many years ago.
Our Founders chose to have an appointed rather than elected Senate. Although it is claimed an elected Senate enhances the Senate’s political legitimacy, given its constitutional veto power over non-monetary acts, the Founders saw legitimacy, in this context, as weakening rather than strengthening the Canadian Federation. George Brown, despite being Liberal and populist, was onside with an appointed Senate. Obviously the great minds and visionaries of 1867 did not believe it to be axiomatic in democracy that an institution with veto power over the acts of an elected institution may only legitimately exercise this veto if it is an elected institution; however they had to wait more than 100 years for vindication.
The role and effect of a Senate veto was in practice well demonstrated during the years leading up to NAFTA. Such were the alarms raised by the public, backed up in the research of our venerable Senate committees, that the Senate exercised its power of veto over the House of Commons and killed the NAFTA bill. The ensuing federal election returned the Mulroney Conservatives to power with another majority and the Senate deferred to the will of the people. The Senate itself, therefore, considers itself both duty and honour bound to respect the will of the people, when it perceives it truly is the deliberate will of the people.
There are many substantial benefits to an appointed Senate. First, appointment allows Senators to remain in their jobs long enough to develop the specialized expertise necessary to effectively evaluate the government’s policies and make recommendations to ensure these policies perform as intended. Second, Senators are not obliged to allocate any of their public service time and resources to caucus, to politicizing, or to getting re-elected every four years or so; representing a huge advantage in productivity and resource allocation over their Lower House colleagues - ask any MP, former MP, or candidate. Third, there is the potential for political partisanship to water down the institution’s raison d’être. Albeit partisanship is still a factor in the Senate, given the way appointments are made, I seriously doubt the practical realities of an elected Senate would permit the venerable Conservative Senator Hugh Segal to advocate for a national, universal, Guaranteed Annual Income program; a vision requiring considerable reflection and research just to get to the point of taking seriously. I would say Senator Segal is more akin to the erstwhile Progressive Conservatives, whose vision and tradition go back to Canada’s founding days, rather than to the modern, American tea-party like variety represented by PM Harper.
There have been many calls for substantial reform, most involving some version of a Triple E Senate, but none will prove effective in my opinion. I find I am onside with both our Founders’ reasoning and decisions. I believe the PM’s end of term tradition of Senatorial appointments should be maintained, with one significant proviso: he or she is limited by the share of the popular vote obtained by their party in the preceding election in the region where the vacancies exist. Similarly, the other official parties appoint Senators in accordance with the proportion of the popular vote they obtained in the preceding election.
Say, for example, at the end of a particular term there are 10 vacancies in the Senate. One of these happens to be in Atlantic Canada. The PM’s party has won with 40% of the popular vote. The PM would therefore be permitted to fill 4 of the 10 vacancies. The other parties would fill the remaining six vacancies according to their share of the popular vote. The party with the largest share of the popular vote in the Atlantic Region will fill that region’s seat. If the PMs party has the regional majority share of the popular vote, the PM will make the selection. Any vacancies remaining will be filled by the parties to fulfill the mandate of the share of the national popular vote, after the regional majority rule has been satisfied.
Our Founders structured the Senate along regional lines, in order to provide political protection to areas of low population - politico-economic influence from the will of regions of high population - politico-economic influence. Ask anyone living in Northern Ontario how well their voices carry above those of the more populous and influential Toronto and Southern Ontario to the ears of the decision-makers. Ask the Francophone person living in Portage La Prairie or the Anglophone living in Temiscamingue, Quebec. Ask anyone living in the Maritimes.
We were fortunate beyond measure to have had people of the highest quality – and I refer to their integrity, vision, and consideration for their fellow souls – in leading political roles during the run up to 1867. Our first Prime Minister not only had the vision and determination to craft a long term viable foundation for this country, he did this while caring for a chronically ill wife, a family of his own, and relatives who could not support themselves – not to mention running his own law firm. Obviously Sir John was the sort who felt compelled to provide service to all those he was in a position to help, rather than the sort who looked after himself and those who helped raise him to power. If he had been the latter sort, he would have practiced the divisive politics that seems to be the order of today and there might have been no railroad, no Canadian West, no Francophone culture, no First Nations culture freely and proudly existing under the umbrella of collaboration and cooperation which has been Canada. I cannot stress enough that but for the quality of the individuals working in government in 1867, the Canada we would have today would be the one Stephen Harper is in the process of creating - but fortunately has not yet accomplished – out of the ashes of our Founders’ Senate.
I am hard pressed to likewise extol the virtues of certain members currently sitting in the Upper Chamber. When individuals shamelessly perform end runs around the rules governing residency and/or misrepresenting personal and politically partisan expenses as expenses arising from their work as Senator, there is a problem: a significant disconnect between the spirit of the individual Senator and the spirit in which the institution of the Senate was envisioned, formed, and expected to operate.
At the end of the day, the federal parliamentary constellation invented by the Founders of Canada was well conceived; however, no system, no matter how perfect in its conception, may withstand the effects of people entrusted with its operation who lack the integrity to follow its rules. No government, or government institution can be effective when individuals lack the integrity of those wonderful Canadians who forged Canada so many years ago. Do you want an effective Senate? Do you want a Senate that truly serves Canadians and Canada? Do you want a Senate that will be the voice of sober second thought, providing the opportunity for the government du jour to turn away from political expedience? If the answer to all of these questions is yes, then stop listening to the politicians that whine about the Senate; if the Senate is doing its job for Canadians - the job Canada’s founders intended for it - then we should expect to hear a lot of whining from our politicians – specifically the ones who currently hold the reins and can therefore do the most damage.
The trouble is, the whiners will be the ones in power and they will react negatively to anything which gets in the way of what they are personally trying to achieve – this is human nature. Given such a reality, you do not want your Senators to be self-serving, lazy, or unethical. You do want Senators who will resist partisanship when towing the party line conflicts with their personal values and the best interests of the people living in the region they represent. You do want Senators that will magnify the Canadian spirit by taking on the dirty jobs, any job, for that matter, when it is the right thing to do. It is the compulsion to do the right thing, not the convenient thing or the most personally advantageous thing, that has traditionally defined Canada and the actions of Canadians both domestically and internationally.
iAjzenstat, J., (2003). 'Bicameralism and Canada's Founders: The Origins of the Canadian Senate'. In: Joyal, S. (ed), Protecting Canadian Democracy: The Senate You Never Knew. 1st ed. Montreal and Kingston: McGill-Queen’s University Press. pp.6.
ii Ibid., p.7.
iiiRémillard, G., (2003). 'Senate Reform: Back to Basics'. In: Joyal, S. (ed), Protecting Canadian Democracy: The Senate You Never Knew. 1st ed. Montreal & Kingston: McGill-Queen's University Press. pp.109.