The second chamber was democratically illegitimate by design, so it could not challenge the House of Commons for parliamentary supremacy yet could still perform vital democratic functions.
The Senate is an institution about which we — citizens, academics and politicians alike — know very little, except that we dislike it, and so concocting new ideas for reform is something of a Canadian pastime. But as significant as Senate reform could be, it has always had a low priority. Few governments have the political will to see through a plan whose benefits will not be immediately visible to voters and whose potential costs, in the event of failure, could be astronomically high. The result is a long trail of discarded and forgotten alternative Senate models, dating back nearly all the way to Confederation.
Most of the delegates at the 1864 Quebec conference, where the institutions of government for Canada were conceived, had direct experience with elected upper houses, and many of them were even the same people who had pushed for the change to election in the united Province of Canada (now Ontario and Quebec) and Prince Edward Island only a few years earlier. Despite this, the delegates at the conference were nearly unanimous in their disapproval of an elected upper house, fearing that it would become a chamber filled with men who were there by sole virtue of being able to afford the cost of campaigning, and that an elected Senate would lead to partisan politics and increased agitation between the two houses of Parliament, eventually threatening the lower house’s control over money bills. Their eventual solution was to have a second chamber that was democratically illegitimate by design, so that it could not challenge the House of Commons for parliamentary supremacy yet could still perform vital democratic functions.
Delegates at the Quebec conference spent more time discussing the Senate — its functions, purpose and design — than any other institution of governance. Nevertheless, dissatisfaction arose almost immediately. Long-standing concerns about regional or provincial representation at the federal level had not been dispelled by a Senate where seats were distributed equally by region but the regions had no choice in who those representatives would be; and subsequent proposals have overwhelmingly aimed to make the Senate into a proper chamber of federalism, usually by devolving powers to the provinces in some way.
This tendency appears clearly in the very first times that Senate reform came to the floor of Parliament, in 1874 and 1875, when Liberal MP David Mills tabled a motion calling for the devolution of Senate appointment powers to the provinces, calling federal appointment “inconsistent with the Federal principle.” Although the Commons agreed to the 1875 resolution, he never produced any actual a plan for reform and eventually withdrew his motion; but the same phrase appeared again in a motion at 1893 Liberal Party convention, where it received unanimous support. Devolution first appeared in an official party campaign platform in 1908 under Robert Borden’s Liberal-Conservatives, and it became such a frequent fixture in election campaigns that by 1925, when it appeared once more in the Liberal Party’s campaign platform, Conservative Leader Arthur Meighen sarcastically remarked, “So that old bird is to be provided with wooden wings and told to fly again.” Devolution, in some form or another, remained the dominant model for Senate reform in Canada until the 1980s.
In the early 20th century, devolution was joined by three other ideas that gained little traction. Term limits for senators and a mandatory retirement age first appeared in 1906 and again in 1908 in a set of motions tabled by Liberal MP David McIntyre, but both were withdrawn without any action. Between McIntyre’s two motions, Liberal MP Henry H. Miller called for the government to form a joint committee on parliamentary reform, suggesting it consider age or term limits and elimination of the prime minister’s monopoly on appointment powers. Abolition was the next new idea, proposed by Conservative MP Edward Lancaster each year from 1909 to 1911. In his speeches before Parliament, he implied that any restrictions upon majoritarianism — such as the Senate’s distribution of seats by region rather than population, its ability to block government legislation and even the federal principle itself — were incompatible with responsible government; the one time his motion came to a vote, it was resoundingly defeated. Nevertheless, abolition became a rallying cry for many Progressives throughout the 1920s, and eventually it was a key component of both CCF and NDP policy. Finally, election made its first appearance in 1909 in a set of resolutions from Ontario Senator Sir Richard Scott. Among the resolutions was a term limit of seven years, and the election of two-thirds of the Senate. No vote was ever taken on Scott’s resolutions.
It was not until the 1960s that Senate reform began to look like a credible possibility — because Canadian federalism had evolved to include more power-sharing between levels of government and a greater role for the provinces in national affairs. While the new plans retained an emphasis on devolving appointment powers — either some or all — to the provinces, they also introduced other institutional changes meant to increase provincial influence over national policy in a “devolution plus” series of models.
During this time of increased interest in upper house reform, one small change was actually implemented: the introduction of mandatory retirement at age 75 in 1965. Since many senators were retiring around this age anyway, it did not constitute a significant amendment to either the membership or the powers of the upper house, and so it was accomplished by simple act of Parliament. Anything more ambitious, however, would require provincial involvement, as the Pierre Trudeau government would learn in its 1979 reference case, and as the Stephen Harper government would be reminded in its own 2014 reference case.
Real Senate reform came to the national agenda in 1969, when the government of Pierre Trudeau accepted in principle some degree of devolution that would secure formal and direct expression of provincial interests in the Senate, though no agreement was reached regarding the specifics. This agreement formed the basis of the report by the 1972 Special Joint Committee on the Constitution, which recommended that half of all senators should be provincial appointees, the western provinces should have their number of seats doubled and the Senate’s formal powers should be reduced to a suspensive veto of six months. The Special Joint Committee’s report was roundly panned and had little impact on subsequent reform plans, but it was significant as the last instance of self-contained Senate reform.
The turning point was the government’s 1978 White Paper on constitutional reform, which set out a two-stage plan for patriating the Constitution, with the first stage to be done unilaterally by the federal government. Part of this stage included the creation of a new upper house, the House of the Federation, which would be indirectly elected by the provincial and federal legislatures and have a 120-day suspensive veto over parliamentary legislation. What followed was a back-and-forth series of plans for Senate reform as part of a constitutional overhaul, as the federal government asserted the right to proceed unilaterally while the provinces demanded to be involved in the reform of a central institution of Canadian federalism. By the end of 1979, nine similar yet distinct proposals for Senate reform had gained some degree of national prominence. The unilateral approach ended with the Supreme Court’s 1979 ruling on upper house reform, which required provincial consultation for anything that would “affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process.”
The Senate was left nearly untouched during the patriation of the Constitution in 1982. For once, it was not due to a lack of political will, but because Canadian political thought about the Senate was undergoing a paradigm shift. In 1981, the Canada West Foundation published a booklet advocating a completely different model from any seen before. The Triple-E model called for an equal number of senators per province, direct election of senators and effective powers capable of challenging the House of Commons. In a few years, it completely replaced “devolution plus” as the default model for upper house reform, particularly in the western provinces, and the idea that an unelected chamber could be both legitimate and representative all but disappeared from Senate reform discourse. It was less popular in larger provinces like Ontario, which objected to having the same number of senators as Prince Edward Island although it had 70 times the population.
What happened next warrants a much longer account in the history of Senate reform, as the plans changed quickly and frequently. But it was that haphazard and overly complicated approach that made the Meech Lake and Charlottetown Accords particularly frustrating for reformers.
Three more committees and royal commissions proposed their own version of Triple-E before the government presented the Meech Lake Accord, promising that Senate reform would be top priority at the next First Ministers’ Conference. In the meantime, the prime minister would continue to make appointments from lists submitted by the provincial governments. The provision was meant to appease Senate reformers and win their support for the Accord, but it backfired; under the Accord’s new amending formula, any deal would then have to receive unanimous consent of all 10 provinces, and so the list system was likely to persist indefinitely. With support for Meech dwindling, a last-minute attempt to save the Accord added a contingency plan for Senate reform: if the provinces could not agree to a plan for Senate reform by July 1995, seats within the existing Senate would be redistributed, but not equally by province. It was not enough to save the Meech Lake Accord, which died in June 1990.
Major Senate reform was a key part of the Charlottetown Accord, preparations for which began almost immediately after the demise of Meech. At the end of a series of meetings with all provinces but Quebec, Premier Bob Rae of Ontario agreed to a Triple-E Senate, on the condition that the House of Commons would have seats distributed purely on the basis of population, which would give Ontario an additional 18 MPs. The agreement, however, was rejected when presented to Premier Robert Bourassa of Quebec, and a final round of negotiations produced a “One and a Half E” Senate plan. There would be an equal number of seats, but provinces could decide whether to appoint or elect those senators. The third E, effectiveness, was dropped entirely, with the Senate reduced to a very brief suspensive veto, after which any disputes would be resolved in a joint sitting, where senators would be outnumbered by MPs by over five to one. It was a quintessentially Canadian plan, combining features of nearly every prior popular proposal in an attempt to create a hybrid chamber that would satisfy all types of reformers, but ultimately it satisfied none, and the Accord was defeated.
In the aftermath of Charlottetown, it seemed as though Senate reform — as least through formal constitutional amendment — was a lost cause that only the most foolhardy prime minister would undertake. That is not to say that the Senate of 1993 is the Senate of today; Prime Ministers Jean Chrétien and Paul Martin both engaged in modest Senate reform through informal, incremental and nonconstitutional means: by loosening the party leader’s control over members in the upper house and seeking out appointees from underrepresented professional and personal backgrounds. A full 30 percent of Martin’s appointees did not sit as Liberal senators, and both prime ministers deliberately appointed more women, First Nations people and francophones from outside Quebec to the Senate. This made the Senate more diverse than any other upper house in Anglo-American democracy in terms of general language and race. (Despite a decline in all three measures in recent years, it remains more diverse than the House of Commons.)
The question of what to do with the Senate has returned in the current federal election campaign, and each of the major parties has offered its own vision for the future of the Red Chamber. In the midst of all the talk, however, our long and tumultuous history of attempted Senate reforms has been forgotten. Past experience has included mostly slow compromise and last-minute deals, neither of which has proven to be very successful. But the regularity with which Senate reform reaches the national agenda does not diminish the importance of well-designed reform, and before we can decide what to do about our upper house, we need to decide what role we want it to play in our democracy.