Built for a purpose: So why isn't the Senate working effectively?

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By Paul McLeod: The Chronicle Herald—Halifax

“In order to protect local interests, and to prevent sectional jealousies, it was found requisite that the three great divisions into which British North America is separated should be represented in the Upper House on the principle of equality.” — Sir John A. Macdonald in the Confederation Debates, 1865

The Canadian Senate was designed to be Atlantic Canada’s perfect political weapon. So why isn’t it?

The Senate has close to equal power to the House of Commons. It can kill, alter or introduce legislation. Most importantly, Atlantic Canada holds more senators than Quebec, Ontario or all of Western Canada, and probably always will. 

It might seem almost silly considering how rarely most Canadians think about it today, but this unbalanced Senate was once the crucial lynchpin to the forging of Canada.

Ostensibly, the Fathers of Confederation believed their new nation would be too wide and diverse to be represented just by population, so a second government body was set up to fight for regional interests.

Politically, Nova Scotia, New Brunswick and Quebec — especially Quebec — worried about ceding too much power to Ontario, since it had the largest population and would wield the most power in the House of Commons.

The compromise was the Senate, where regions would be treated equally, regardless of population. The three founding regions of Quebec, Ontario and the Maritimes would each get 24 senators to fight for local interests.

Regional equality was crucial. Father of Confederation George Brown once said, “On no other condition could we have advanced a step.” 

“If we err,” said one Maritime delegate to Confederation meetings, “the whole scheme will come down some day.”

This was the ideal. All laws would have to be approved by three bodies: the lower house (House of Commons, elected by population and dominated by political parties), upper house (the Senate, appointed to fight for the good of the regions) and the Queen (represented by the governor general).

Late to the party, the West was given 24 senators, or six per province, in 1915. By comparison, Nova Scotia and New Brunswick have 10. Prince Edward Island has four.

Newfoundland was promised six seats if it joined Canada. It didn’t cash in on the offer until 1949, but now bumps Atlantic Canada up to 30 senators out of a total of 105 (the Territories each get one). 

The result is that compared to population, the Senate now badly shortchanges the West and Ontario, more or less fits Quebec, and greatly benefits the East. Atlantic Canada controls 29 per cent of one of the two Houses of Parliament, despite having only seven per cent of the population. 

So why is the East not one of the power brokers of the nation? Ontario still has its huge population, Quebec has its separation threats and Alberta has its oil, but the East seems to have no trump card of its own to play. 

Most Canadians likely don’t even realize the Senate is supposed to be a body of regional advocates. The Senate is so far out of the public eye that Halifax MP Megan Leslie caused a stir when she told the House of Commons this year that she couldn’t even name all of the senators from her home province. 

Canada may not have dissolved as the Maritime delegate predicted, but most historians and political observers agree the Fathers of Confederation did err when they created the Senate. Usually the first complaint is that it is based on political appointments.

Theoretically the Senate is appointed by the Queen, which means her representative, the governor general. But ever since 1867, the convention has been that governors general only rubber stamp the recommendations of the prime minister of the day.

Of the many First World countries that have a two-house system of government, Canada stands alone in having all of the members of the upper chamber appointed by the head of the national government.

The Senate quickly came to be seen as a political retirement home, and by the 1900s there were frequent calls for reform. While there have been doctors, advocates and many other esteemed Canadians named to the Senate, the upper house has also seen its share of former politicians and political bagmen.

The result is that the Senate does not divide among regional lines, but party lines. Whether Liberal or Conservative, senators overwhelmingly vote for the party position (there are no NDP senators).

When there are intra-party disagreements, they tend to be based on era, not region. Brian Mulroney-appointed Conservatives, for example, often feel very differently on the idea of Senate reform than the Stephen Harper-appointed Conservatives.

Furthermore, because Senators have guaranteed seats until the age of 75 — up until 1965 they were appointed for life — they are never held accountable to those they are supposed to represent. Their commitment to their region is never tested in any way.

An appointed Senate was supposed to provide independence and free it from the political demands of seeking re-election. Sir John A. Macdonald famously said it should provide “sober second thought” and not be a “mere chamber for registering the decrees of the lower house.”

But instead, the unelected Senate has come to be seen to lack the moral authority to oppose the elected House of Commons. Bills must still be approved by both the House and the Senate to become law. There is no mechanism for breaking a division.

In theory, the Senate could stop the House of Commons in its tracks.

But convention dictates that when the two sides are at odds the unelected Senate must bow to the will of the elected House. There are rare exceptions, but these tend to be partisan rather than regional.

In 2011, opposition parties teamed up on the Conservative minority government to pass Bill C-311, an NDP climate change bill. When the bill came to the Senate, Conservative senators called a snap vote and killed it without debate.

Canada’s Senate now approaches a turning point. After countless failed pushes for reform, the House is now made up of a reform-oriented majority government and an official Opposition that wants to see the Senate abolished altogether.

The Conservatives have introduced Bill C-7, which would introduce term limits to senators. Prime Minister Stephen Harper also says he will allow the provinces to elect their own senators. 

Bill C-7 will all but certainly pass the House of Commons. Thanks to careful stacking by Harper, there are now enough pro-reform senators that it should pass that chamber as well. After that things get murkier, with Quebec having said it will take any Senate changes to the courts. 

There are also those who think the Senate gets a bad rap. After Megan Leslie said she couldn’t name all of the Nova Scotia senators, several of them shot back.

Sen. Kelvin Ogilvie said senators do work hard for regional interests, but it gets little attention because it often takes the form of complex committee work.

Sen. Gerald Comeau said Atlantic Canada would become an “afterthought” if its clout in the Senate was done away with. He said much of Atlantic Canada’s leverage is employed behind the scenes before bills are even made public.

“If you have to take it into the public domain it means you haven’t been very successful in caucus,” he said.

Sen. James Cowan pointed out the Senate frequently finds problems and loopholes in legislation that are missed by the House of Commons.

But tellingly, each of these three men agrees that some reforms could improve the Senate, whether it be elections or term limits.

The task they and other legislators face is now to find the best 21st-century solution to keep “the whole scheme” from coming down.

 

Organizations: House of Commons, Upper House, Canadian Senate Conservatives

Geographic location: Atlantic Canada, Quebec, Ontario Nova Scotia New Brunswick Prince Edward Island Newfoundland Alberta

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