Those wishing to abolish the Senate need to engage in some sober second thought.
The Senate has few friends left. It has had to struggle for legitimacy almost from birth, and the body blows it has absorbed from the scandals over the past several months have only reinforced the chronic suspicion among most Canadians that it is a legacy of a less democratic era.
The Leader of the Opposition in the Commons has served notice that his party intends to roll up the Senate’s red carpet. Old friends who once called for reform and renewal have either turned on the institution or gone silent. Saskatchewan Premier Brad Wall, for one, no longer calls for reform; he wants the chamber abolished. Wall now says provincial governments can look after regional interests, pointing to his role in stopping a hostile takeover of Potash Corp. Even Marjory LeBreton, the outgoing leader of the government in the Senate, recently declared that “Canadians view the Red Chamber as illegitimate,” warning “it must either change or like the old upper houses of our provinces, vanish.”
We no longer hear the old battle cry of the Reform Party in its current guise as a wing of the governing Conservative Party. Reform led the charge in the 1980s for a Triple-E Senate — elected, equal and effective — unveiling a draft constitutional amendment in 1988 that called for direct election of 10 senators per province for six-year terms. Senate reform was part of Reform’s demand that “the West wants in,” a sign of its progressive credentials.
But the West is now very well “in.” The Prime Minister is from Calgary and the cabinet has a strong western bent. Political power has followed economic clout. In the process, the Triple-E Senate — at least the “equal” part — has lost its priority status on the western agenda. With western Canada’s gains in population and its number of seats in the Commons, the question has been rephrased to become one that is familiar to those in Ontario and Quebec: why should fast-growing Alberta have the same number of seats as little Prince Edward Island? As Calgary political scientist Roger Gibbins argued in a Troy Media article in July: “As the country’s demographic and economic centre drifts west, the equal representation of western provinces in a more effective Senate could undercut rather than reinforce the West’s new leverage.”
But those wishing to abolish the institution need to engage in some sober second thought, the often-invoked phrase purporting to define the Senate’s role. They must answer a critical question that cuts to the heart of the Senate’s true constitutional mission: how will Parliament and the government of Canada accommodate the regional factor in shaping policies and in the machinery of government?
A major problem for Senate reform is the misunderstanding of the body’s constitutional role. I recently heard Brad Lavigne, a former senior official in the New Democratic Party, argue that the Senate’s role was all about promoting sober second thought to the House of Commons. He is at least partially wrong. Many in the national media have also lost sight of the Senate’s function. In May, the Ottawa Citizen ran a story titled “Five Things to Love about Canada’s Senate.” Its list: 1) for every bad apple, there’s a good one; 2) the Senate does its homework; 3) some senators know a lot about government; 4) it’s a voice for minorities; 5) there actually is “sober second thought” going on in there.
The “sober second thought” catchphrase overlooks the Senate’s primary role as a promoter and defender of regional interests. That is what the Fathers of Confederation had in mind for the upper chamber when they midwifed it, with participants at the 1864 Quebec Conference spending an inordinate amount of time shaping what would become the Senate. Representatives of the three Maritime provinces saw the demographic writing on the wall in the proposed new union. They made the case that the Senate had to act as a counter-force to the interests of the heavily populated central provinces and their dominance of the House of Commons. Had the Maritime delegates doubted the Senate’s ability to articulate regional interests to the centre, many would not have supported Confederation.
As we approach our 150th birthday as a nation, the Senate has clearly failed. Its inability to fulfill its role as an effective voice for the regions has many causes — the quality of some of its appointees, its use as a tool for partisan gain — but above all its lack of democratic legitimacy. Bob Rae argued, testifying before the Special Joint Committee on Senate Reform in 1983, that the Senate is “so discredited in the public’s eyes on democratic as well as regional representational grounds” that it is not possible to “resurrect it as a serious political force.” Of course Rae and other leading Ontario politicians have never shown an interest in having an effective Senate that is able to speak effectively on behalf of the regions. Why should they? An Ontario-dominated House of Commons serves the province’s economic interests just fine, as it has since Confederation.
John Ibbitson went to the heart of the matter when he wrote in Loyal No More (2001) that “after the Second World War… Queen’s Park and Ottawa collaborated to ensure that the rest of the federation served the interests of the economic heartland.” This cooperation has resulted in many policy decisions that benefited the centre at the expense of the regions. The Canada-US Auto Pact benefited large American automakers and Southern Ontario, while bringing few direct economic benefits to the Maritimes, where the purchase of an automobile became more expensive. The expansion of Crown corporations was also tailored to suit central Canada. At the start of the Second World War, Canada had 15 Crown corporations; 32 were added during the war years. Virtually all were established in the Montreal-Windsor corridor. Not a single one was located in the Maritime region.
It is important to stress that policy-makers in Ottawa set out to build a nation, not regions, and concentrating industrial development made sense from this perspective. That the practice also held a political logic, concentrating industry in vote-rich Ontario and Quebec, was a bonus. But throughout this long process, the Senate essentially stood idly by, unwilling to fulfill its mandate to stand up for regional interests. Here lies the weakness of the institution, the roots of impotence that ultimately has bequeathed us a Senate in which creatures of Ottawa and Toronto such as Mike Duffy and Pamela Wallin are supposedly responsible to the provinces of Prince Edward Island and Saskatchewan.
There are several things that the Senate could have done or could do to restore its power. It could review the work of departments and agencies from a regional perspective, delivering a more sophisticated analysis of the nature of federal spending in the regions. Federal dollars spent on employment insurance or Equalization will hardly have the self-sustaining impact of dollars spent in the aerospace sector, in research and development or even in public sector salaries. Thirty years ago, 73 percent of federal public servants were located outside the National Capital Region. Today, it is down to 57 percent. The Senate has had precious little to say about this withdrawal of the federal presence from the regions. Decisions and recommendations on spending and tax measures are quietly made in government departments in Ottawa, with the Brad Walls of the country in no position to see the process at work, let alone influence it.
Abolishing the Senate would simply serve as a funeral service for a patient that has long been in terminal decline, without addressing the regional challenges it was designed to meet. As David E. Smith, one of Canada’s leading authorities on Canadian federalism and political institutions, put it in The Canadian Senate in Bicameral Perspective:
Abolition of the Senate would not only be inconsistent with Canadian federalism, it would destroy it. In a unicameral Parliament, presumably based at least as closely upon the principle of rep-by-pop as now, Ontario would dominate the chamber. Of course, it could be said that this is the case now where Ontario accounts for one-third of the total Commons seats. The difference would be that the Senate and its final weapon, the absolute veto (or even a suspensive veto), would have disappeared. The regional, sectional, provincial, and associational rights the Senate was established to protect would lack an institutional forum in which to be heard.
Amid the bitter political taste currently engendered by the Senate, all that may save it from extinction is the Constitution. Abolishing the upper chamber probably requires consent from at least two-thirds of the provinces (hard math when four of the provinces are in Atlantic Canada). Some even argue that abolishing the Senate requires unanimous provincial consent because it would have an impact on such offices as the Office of the Governor General, specified in the unanimity procedure. Abolition also requires the consent of the House of Commons and, yes, the consent of the Senate itself (though the upper houses of several provinces have voted themselves out of existence, most recently Quebec’s in the late 1960s).
These constitutional hurdles may be too high to overcome, making much of the current clamour for abolition just so much political posturing. But as a long time advocate of a Triple-E Senate, I see opportunities for fixing the place without subjecting the country to more constitutional trials. There is nothing to prevent the prime minister from setting up a consultation process when appointing senators, similar to the established process for appointing members of the judiciary, deputy ministers and chief executive officers of Crown corporations.
In a new era, Canadian citizens could be invited to submit their Senate applications to an open competitive process. All applicants should identify with a political party. Just as the governor general looks to an advisory committee when appointing members to the Order of Canada, the prime minister could set up a similar process for reviewing candidates for these Senate appointments. The body’s regional nature means that provincial premiers, regional interest groups and community leaders should be part of the consultation process. It should produce three names, submitted to the prime minister and cabinet for consideration.
In the end, the prime minister would choose, as he does now. But the power of senators would derive from an open, competitive process. They would be responsible to their regions and communities, not simply to the prime minister. And they could execute the role the Fathers intended of having a check on federal power and rule by the biggest provinces. By fixing rather than axing the Senate, we would not just deal with the sorry display we have seen from its occupants over the past months but empower it as a guardian of a true federation.