Parliament does not have the unilateral power to make changes to the Senate’s fundamental characteristics. That was made clear by two advisory opinions of the Supreme Court, one in 1980, and the other in 2014. The road to structural institutional reform of the Senate therefore lies in federal-provincial constitutional negotiations, which, over the years, have often been prolonged and proven disappointing. But it is not inconceivable that agreement could be reached fairly quickly on two important constitutional changes affecting the Senate given that they do not encroach on the Senate’s powers.

The first would be to correct the imbalance of representation of the Western provinces for seat distribution, and the second is to allow Indigenous peoples to select senators through consultative elections, transforming our reconciliation policies.

Improving Western regional representation

One of the most grievous features of the Senate’s institutional architecture is Western Canada’s under-representation. British Columbia and Alberta represent 25.1 percent of Canada’s population but hold only 11.4 percent of Senate seats, according to a 2006 report of the Special Senate Committee on Senate Reform on western regional representation.

In his testimony before that committee, Roger Gibbons, who was at the time president and CEO of the Canada West Foundation, quite rightly emphasized that representation goes ‚Äúto the very core of the Senate ‚Ķ who we should represent and what are the means of representation.‚ÄĚ

Representation by population is the organizing principle of the House of Commons, but the effective representation of regions must be the organizing principle of the Senate. Increasing Western representation would enable the Senate to play a more vital role in reflecting the federal character of Canada.

The number and distribution of Senate seats has changed numerous times since Confederation. Before 1915, the regional distribution of seats was altered on various occasions to reflect either the creation of new provinces in the West, or the population growth in these provinces. Originally, the Senate was composed of 72 members, and its size has increased as the country has grown and changed geographically and demographically.

For example, in 1870, Manitoba was given two seats. In 1871, British Columbia was awarded three seats. In 1905, Alberta and Saskatchewan were each given four seats. Only in 1915 was the British North America Act amended to create a fourth division of the Western provinces with 24 seats. Newfoundland entered confederation in 1949 with six seats, and the three territories of Yukon (in 1975), The Northwest Territories (in 1975) and Nunavut (in 1999) each have been awarded one seat.

Due to the substantial growth in population in British Columbia and Alberta since 1915, a serious representational imbalance has developed. Their number of seats has remained unchanged for over 100 years. Proposals have been made for a more radical distribution of seats, such as awarding each province with the same number of senators. But acceptance of these proposals has proved difficult; such reforms can be interpreted as threatening the federal-provincial balance.

Incrementally improving western representation could be more realistic. And there is one proposal from 2006 that could still be addressed.

It‚Äôs been more than a decade since two senators at the time ‚Äď Lowell Murray and Jack Austin ‚Äď proposed that the 24 seats in the Senate that represent the Western provinces division be distributed among Manitoba, Saskatchewan and Alberta, and that British Columbia be made a separate division with an allotment of 12 seats. Under this proposal, Alberta‚Äôs seats would increase from 6 to 10; Saskatchewan‚Äôs from 6 to 7; and Manitoba‚Äôs from 6 to 7.

This still appears to be the most practical solution to improving Western Senate representation. It recognizes British Columbia as a fifth region of Canada, which it deserves to be, while leaving the non-Western provinces with their allotment of seats. It would provide a mid-size distribution of seats to the mid-size provinces of Alberta and British Columbia.

Back in 2006, the Murray-Austin motion did not move forward; it got mired in the argument that constitutional reform was not a priority for Canadians still reeling from the bitter constitutional wrangling of the 1980s and early 1990s. In addition, objections were raised that the Murray-Austin proposal did not go far enough or that it would dilute the representation of other regions to an extent that was not acceptable. That same year, 2006, the Special Senate Committee on Senate Reform felt that these concerns did not provide persuasive reason for rejecting the motion and doing nothing. It concluded that the proposed dilution of other regional seats was extremely modest and did not undermine representation in the Senate.

Dan Hays, former Speaker of the Senate, has said the distribution of seats, like other problems within the Senate’s constitutional architecture, is an important issue, and of interest to the Canadian public, and it must be faced at some point. Hopefully, there is still enough political leadership to have it once more examined and acted upon.

Improving the representation of Indigenous peoples

Improving the representation of Indigenous peoples in the Senate has been discussed numerous times. ‚ÄúRepresentation of the Aboriginal peoples in the central institutions of Canada is an extension of our right to self-determination with the federation,‚ÄĚ the Inuit Committee on National Issues said in 1983 during hearings on Senate reform, as noted in volume 9 of the series of studies commissioned by the Royal Commission on Electoral Reform and Party Financing. ‚ÄúRepresentation is solely needed to protect our interests and affect the policies of this country that affect our people,‚ÄĚ it said.

The 1992 Government of Canada‚Äôs Consensus Report on the Constitution (Charlottetown Accord) said: ‚ÄúAboriginal representation in the Senate should be guaranteed in the Constitution. Aboriginal Senate seats should be additional to provincial and territorial seats rather than drawn from any province or territory‚Äôs allocation of Senate seats. Aboriginal Senators should have the same role and powers as other Senators, plus a possible double majority power in relation to certain matters materially affecting Aboriginal people‚Ķ.‚ÄĚ

In 2016, there were 1,673,785 people who identified as Aboriginal in Statistics Canada’s 2016 Census of Population. That represents 4.9 percent of Canada’s total population, a figure nearly matching the population of the Maritime provinces.

A number of remarkable representatives of Indigenous peoples have been appointed to the Senate by governments over the years. But their appointment, like those of all senators, is at the behest of the prime minister. ‚ÄúAs long as Aboriginal appointments remain the prerogative of the government in power, and without the benefit of a consultative appointment policy to ensure representation from the three Aboriginal peoples of Canada, Aboriginal appointments may be little more than happenstance or individual good luck,‚ÄĚ Robert A. Milen pointed out in 1994 in a paper prepared for the Royal Commission on Aboriginal Peoples.

The 2015 Truth and Reconciliation Commission report stated that reconciliation ‚Äúis about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.‚ÄĚ Constitutionally permitting the appointment of a certain number of Indigenous senators through a consultative selection process would be an important gesture not only for advancing reconciliation in this country but for the reform of the Senate itself.

Both of these reforms are clearly substantial changes to the Senate’s design and can only be achieved under the 7/50 amending formula of the Constitution, which requires the consent of the Senate, the House of Commons and the legislative assemblies of at least seven provinces representing half the population of all the provinces. Finding the political leadership to address these amendments in a federal-provincial setting might not be easy, but given their importance to the quality of governance within parliament and national unity, not impossible. A reformed Senate has a large role to play in achieving these goals.

Photo: Calgary and the Bow River at sunset. Shutterstock / Darko-HD Photography

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Gary W. O’Brien holds a PhD from Carleton University. He was appointed Clerk of the Senate in 2009, retiring in 2015 after 37 years of service to the Parliament of Canada.

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