THE CANADIAN PRESS
The Senate chamber on Parliament Hill is seen in Ottawa.
WINNIPEG — The recent crises in the Canadian Senate over the machinations of some senators and the prime minister’s office have revived public concerns over the Senate. The Senate can be described as the royal club of patronage; it is the red chamber of white men; it is the country club of retired or rejected politicians. In short, the Senate has become an embodiment of white, rich, old, sexist gerontocracy.
The original purpose of the Senate contained in the constitution of 1867 was threefold: (a) protection and representation of what John A. Macdonald called "sectional interests." It is not clear if that meant regional or linguistic or religious interest; (b) acting as a counter weight to House of Commons to exercise the role of a "sober second thought"; (c) the Senate was given equal power in all matters dealt by the House of Commons except money bills.
The Senate was also created to protect several minorities, such as: (a) the less populous provinces; (b) the French or English speaking citizens of Quebec; (c) properties of citizens. The principle functions in the beginning consisted of (a) improving legislation and (b) investigating questions of public policy.
Achievements of the Senate
1. Senators gained specialized knowledge and experience.
2. Senate committees were inclined to be less partisan than the Commons’ committees.
3. The Senate undertook many useful investigations on public issues, such as poverty, mass media, unemployment, inflation, aging, land use, science policy, national defence, relations with the United States and the national security agency.
The Senate committee’s recommendations have frequently influenced public policy and led to improved legislative and administrative actions.
Failures of the Senate
Over the decades, the Senate evolved (a) in its composition and (b) in its roles. The Senate has been dominated by the party nominees of the prime minister who had been the party’s big donors and the "bagmen." The Senate consists of 105 members. Out of these only 38 were women, five were aboriginals and nine were visible minorities. Thus the Senate has become the defender of the rich citizens, not of the poor. Some have defined the Senate as the embodiment of Geritol, alcohol and protocol. Further, the Senate has become a highly partisan body that blindly supports the ruling party, rather than representing regions or minorities.
Call for Reforms
Current dissatisfactions with the composition and the role of Canadian Senate have revived the old slogans of Senate reforms. Numerous solutions have been proposed to correct the situation — from abolishment of the Senate to the proposal of Triple-E Senate (equal, elected, and effective). The important proposals for reforms may be listed as follows:
1. Abolishment of the Senate.
2. Senators be elected by the provinces.
3. Each province should be allowed an equal number of senators.
4. The role of the Senate should be effective.
5. The Senate be authorized to bring about changes in its functioning.
6. Instead of amendments, necessary changes be made through ordinary procedure.
7. Besides regional interests, special representation should be provided to women, aboriginal peoples and visible minorities, high achievers and the handicapped.
8. The Senate must be authorized to suspend or expel its members.
9. Senators should be elected for a term of 10 years; one-third retiring every four years.
The above suggestions imply that the changes can be effective. But these suggestions involve constitutional amendment. Can we say that the changes be brought about through the decisions of the cabinet and House of Commons, or some other political device?
The current Senate consists of 105 seats in total. Under section 26 (as amended in 1975) of the constitution of 1867, the numbers could be increased by either four or six senators drawn equally from the four regions.
Methods of Amending
The Canadian constitution of 1982 provides five different methods of amending. Under section 38, the general amendment can be initiated by a resolution of either the House of Commons or the Senate or by the legislature of any province. The proposed amendment has to be approved by the two chambers of the parliament and must then be ratified by two-thirds of the provinces (seven) representing 50 per cent of the Canadian population. This means Ontario or Quebec have to be included in the amendment. Quebec has been threatening to secede from the federation or that may strengthen bonds of the provinces of the federation. So amendments are not easy to accomplish.
Besides, the constitution also provides the "opting out" clause [section 38(4)]. Any province can opt out of an amendment if that affects its role or jurisdiction. If more than three provinces opt out it means the amendment is rejected.
Section 42(1) of the constitution requires that the general amendment formula [section 18(1)] must be used for six defining classes of amendment which are relevant to the amending of the Senate:
1. Powers of the Senate and the method of selecting senators.
2. The number of senators each province is entitled to.
3. The residence qualification of the Senators.
In the light of constitutional provisions, how can the proposals on reform of the Senate be evaluated?
Elimination of Senate
Abolishing the Senate is procedurally very difficult. Besides, a majority of the general public is not yet ready to abolish the Senate. So reforms are the only option.
Election of the Senate
As to the suggestion of election of senators, it has to be pointed out the most serious criticism of the Senate is its partisanship. It has become a puppet in the hands of the ruling party and prime minister who nominates the senators. No amount of tinkering with the different aspects of the Senate will be meaningful until the Senate is free from the control of the prime minister or the provincial legislature or the provincial cabinet. But who should select the senators — provincial citizens or the provincial legislature or the provincial cabinet? The general opinion seems to be that the citizens of the provinces must elect the senators who will be held responsible to the province, not to the prime minister. But direct election of the senators poses some problems; the national parties that fight the national elections will also be fighting provincial elections. So partisanship will operate both at provincial and federal elections. Senate elections depend upon money. Election expenses have become the most powerful instrument, which means appealing to the businessmen or the rich, unless elections are financed by governments. After elections, the policy and measures of the national parties will overwhelm the provincial elections and the national parties will demand the support of provincial parties and vice versa.
The only way to make sure that partisanship does not disturb democratic function, is to assume that federal leaders or strategists will not intervene in provincial elections. So parties will have to be banned from entering or controlling senatorial elections.
Equitability or Equality of senators
As to the demand that every province should be eligible for an equal number of senators, it may be pointed out that present allocations are resented both by the big and small provinces that feel their population has been totally ignored, thereby creating inequality. The small provinces argue that their interests are disregarded by the entrenched majority of the big provinces. Ontario and Quebec are against equality, but Alberta and Newfoundland are against inequality.
A strong public feeling is that the number of Senate seats must be in proportion to the population of each province.
On the provincial level, the allocation of Senate seats are inequitable. Ontario has 38.4 per cent of the Canadian population, but only 24 senators; Saskatchewan has only 3.1 per cent of the population with six seats and New Brunswick, with 2.2 per cent of population, has 10 senators. The smallest province (Prince Edward Island), with 0.4 per cent of the population, has four senators and Quebec, with 23.6 per cent of the population, has only 24 senators.
I have tried, as reasonably as possible, mathematical proportionalities between population and seat allocations. Under my scheme, Ontario and Quebec will have equally 30 seats each, the Western provinces (British Columbia, Alberta, Saskatchewan and Manitoba) will have 11 seats each, Nova Scotia and New Brunswick will have 10 seats each; the Northwest Territories, Nunavut and Yukon will have one seat each; while Newfoundland and Labrador will retain its six seats and P.E.I. its four seats, respectively.
Minorities such as women, aboriginals, visible minorities, the handicapped, and the high achievers in the non-political fields remain under-represented in the Commons and in the Senate. Their contributions could be very useful. It is high time special attention is paid to these groups in the reconstituted Senate.
For the same reason Ontario may also accept the new proposals, though Alberta may not be happy with some of the status quo positions. But raising the allocation of Senate seats to the Western region from 24 to 44 and also three additional seats for the three Prairie provinces should be an attractive proposition to the West. Similarly, Western or the Atlantic regions individually or collectively will not command the majority in the Senate. The Western and Atlantic provinces that have always felt the domination of Ontario and Quebec in the Commons and Senate cannot feel the same in the reformed Senate. Ontario or Quebec representatives will not have a majority in the Senate. Neither can their combined strength dominate the Senate.
The three territories are special cases — firstly, they have small populations and will remain small in the foreseeable future. Their past generations had some built-in handicap in terms of geography, climate, agriculture and industry. They need a platform for their voices to be heard. Secondly, a territory will remain economically backward for a long time to come. Thirdly, there are supposed to be heavy deposits of minerals, oil resources, etc., which have to be dug up, tested, organized and developed and the benefits to be distributed justly among the poor people. The Senate may provide them the platform to ventilate their grievances and project their struggle for their benefits.
Among the unrepresented or poorly represented minorities are women, aboriginals and visible minorities. First Nations, Métis and Inuit need and deserve good representation in the halls of policy-makers. They have much to represent for industrialization and development, which is badly lacking at present. Most of all, the aboriginal population is increasing at a fast space. Their demand and needs will multiply. They need a voice that could be heard by the two chambers of Parliament.
Women constitute 50.4 per cent of the population, but continue to have poor representation in the House of Commons and Senate. Presently, women make up 36 per cent of the Senate. They must be guaranteed a minimum of 40 per cent so they may check the male chauvinists. My suggestion does not preclude more women entering the Senate or the Commons.
Visible minorities now constitute nearly one-third of the Canadian population. But they have been highly excluded from political bodies, though they can contribute considerable thinking, experience and social science knowledge to the policy making parliament. As doctors, scientific researchers, businessman and civil servants, they are especially qualified to participate in policy-making and law-making. They should be allocated some guaranteed seats in the Senate.
There is another minority which deserves political representation — the handicapped. Usually without employment or money, they are ostracized however gifted and interesting they may be. But their voice must be heard in the name of humanity and social welfare. They should have a say in the making of policies and laws that affect their lives.
There are those highly educated, talented individuals with world recognition, who have plenty of useful ideas and opinions on political, educational, social, and cultural values. But usually such individuals avoid the hustle and bustle of politics or the need to raise finances for elections, etc. Recruiting such persons to be advisers or opinion makers on the political issues is a useful strategy. Dozens of such high achievers exists in Canada, in the faculty of science and technology, engineering, medicine, social sciences, education, philosophy, fine arts, social work, human rights and world peace. They may be nominated to the Senate by the governor general without intervention of the prime minister or the cabinet and without partisanship.
Most important on the election or the selection of senators is to keep it non-partisan. Otherwise, the whole exercise of the Senate reform will be worthless. Political parties should be banned from the election of the senators and senators should not be dependants of the parties or to prime minister in any way.
Tenure of Senators
For 98 years (1867-1964), the tenure for senators was for life. Obviously, this creates a feudalistic system like the one in England where the membership in the House of Lords is inherited. Life tenure was abolished in 1965. Since then, the Senators serve to age 75. In the reformed Senate, the tenure should be fixed at 10 years, non-renewable. One-third of senators should retire every three years. This will provide reasonable continuity and necessary change.
» M.V. Naidu, MA, PhD, LLB, LLM, is professor emeritus in political science at Brandon University. He currently lives in Winnipeg and can be reached via email at email@example.com.
Republished from the Brandon Sun print edition April 11, 2014