1 Function

Under Canada's constitution, the Governor General alone can "summon qualified Persons to the Senate" in the name of the Queen of Canada. However, in reality, the Prime Minister controls the appointments and the Governor General is bound by convention to appoint the Prime Minister's nominees. Once appointed, senators hold office until age 75 unless they miss two consecutive sessions of Parliament. Until 1965, they held office for life.

The Senate can initiate any bills except bills providing for the expenditure of public money or imposing taxes. It can amend or reject any bill whatsoever and can reject any bill as often as it sees fit; no bill can become law unless it has been passed by the Senate.

In theory these powers are formidable, but for more than 40 years the Senate did not reject any bills passed by the House of Commons and very rarely insisted on an amendment that the House of Commons rejected. Then, in 1988, it refused to pass the "Canada-United States Free Trade Agreement", the forerunner and basis for the North American Free Trade Agreement, until it had been submitted to the people in a general election. In 1989-1990, the Senate insisted on amendments to an unemployment insurance bill that the Commons rejected; the Senate eventually passed the bill as submitted by the Commons. In 1991, the Senate defeated a Commons bill respecting abortion. In some cases, the Senate has chosen not to give its approval to bills before the end of a session, thereby effectively stopping them from becoming law.

Most of the amendments that the Senate makes to bills passed by the Commons are for purposes of clarification or simplification and are almost always accepted by the House of Commons. The Senate's main work is done in its committees, where it goes over bills clause by clause and hears evidence, often voluminous, from groups and individuals who would be affected by the particular bill under review. This committee work is designed to be effective because the Senate is supposed to have many members with specialized knowledge and long years of legal, business or administrative experience. Their ranks include ex-cabinet ministers, ex- premiers of provinces, ex-mayors, eminent lawyers, experienced farmers, and others.

In recent decades, the Senate has taken on a new job of investigating important public problems such as poverty, unemployment, inflation, the aged, land use, science policy, aboriginal affairs, relations with the United States, and the efficiency (or lack thereof) of government departments. These investigations are designed to produce valuable reports that can lead to changes in legislation or government policy.

2 Party standings in the Canadian Senate

Last updated 21 Nov 2004

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BC  AB  SK  MB  ON  QC  NB  NS  PE  NL  YT  NT  NU  Liberal Party * 3 3 2 2 12 15 8 5 3 4 1 1 1 60 Conservative Party * 2 3 2 7 3 1 4 1 23 Progressive Conservative Caucus * * 2 1 3 Independent * 1 1 3 5 Vacant * 1 3 1 1 2 3 1 1 1 14 6 6 6 6 24 24 10 10 4 6 1 1 1 105

* note The Progressive Conservative Party of Canada no longer exists but Senators Lowell Murray, Norman K. Atkins and William Doody refused to join the new Conservative Party of Canada and continue to sit as a Progressive Conservatives caucus despite the dissolution of the Progressive Conservative Party. This caucus does not have the 5 seats required for official party status, and therefore does not enjoy the same rights as other caucuses as defined by the [Rules of the Senate].

2.1 Appointment breakdown

• No senators have been appointed by Prime Minister Paul Martin (Liberal, 2003 - present)
• Fifty-three current senators were appointed by Prime Minister Jean Chrétien (Liberal, 1993-2003)
• Twenty-nine current senators were appointed by Prime Minister Brian Mulroney (Progressive Conservative, 1984-1993)
• Fourteen current senators were appointed by Prime Minister Pierre Trudeau (Liberal, 1968-1979, 1980-1984)
• Two current senators were appointed by Prime Minister Joe Clark (Progressive Conservative, 1979-1980)
• One current senator was appointed by Prime Minister John Turner (Liberal, 1984)
• One current senator was appointed by Prime Minister Lester Pearson (Liberal, 1963-1968)

3 Why the Senate was created

The Senate was created to be weaker than the House of Commons and in some respects to mirror the House of Lords of the United Kingdom.

The Senate was given two major functions in the constitution. First, it was to be the chamber of "sober second thought" to curb the "democratic excesses" of the House of Commons, in the words of John A. Macdonald. Such a limit should prevent the elected House of Commons from turning Canada into a "mobocracy", as the Fathers of Confederation saw the United States. The $4000 property holding requirement was designed to ensure members of the Senate would represent an economic elite in contrast to the presumably less wealthy and less educated members of the lower house. The Senate was thus given the power to overturn many types of legislation introduced by the Commons and also to delay any changes to the constitution, thus preventing the Commons from committing any rash actions. This ability quickly proved itself illusory as even the conservative Canadians of the nineteenth century saw the Senate as a sinecure for patronage without the electoral legitimacy of the Commons, a view which persists to this day.

As Canada became more liberal and democratic, the idea of an appointed Senate that merely rubber-stamps bills approved by the House of Commons became unpalatable to many Canadians. On the rare occasion where the Senate rejects a bill passed by the Commons, the same argument is used to question its authority to act. It is to be noted that a long-serving prime minister establishes over time a strong favourable majority in the Senate that makes it easier for her or him to pass bills and more difficult for successors from other parties.

The second original function of the Senate was to provide regional representation. This is technically still the case, with representation in the Senate allotted on a provincial basis. Unfortunately, this regional representation is more consistent with 1867 demographics than with today's and cannot easily cope with recent demographic changes. The ability of senators to represent their regions is also muted by the appointive process where a prime minister can choose senators that will best reflect her or his centralizing views.

4 Criticism

Though it has many positive traits, the Canadian Senate is nevertheless one of the most unpopular political institutions in Canada. It is seen by many as undemocratic, unequal, and largely useless. Since the prime minister gets to appoint whomever he chooses, the Senate is often criticized as being little more than a "country club" for friends of the prime minister and a convenient venue for political patronage. The Senate is rarely a prominent player in Canadian politics, partially due to its well-founded reputation of "rubber-stamping" all bills passed by the House of Commons. In recent years polls have shown an overwhelming majority of Canadians are unable to name a single sitting senator. The joke was not lost on many Canadians when, for four years after the Parliament fire of 1916, the Senate sat in the 'Hall of Fossils' at their temporary home of the Victoria Museum (now the Canadian Museum of Nature).

The Senate tends to only exercise its power when the House of Commons is dominated by a rival party, such as the period during the infamous GST debate in the late 1980s. At the time, the Senate was controlled by the Liberal Party and the Commons by the Progressive Conservatives. The GST bill was important to Prime Minister Mulroney and he was determined to prevent the Senate from rejecting his party's motion. Rather than face certain defeat, he quickly began a flurry of Senate appointments, filling all vacant seats with Progressive Conservative supporters and invoking a clause in the Constitution (Section 26 of The Constitution Act, 1867) allowing him to increase the Senate's size and appoint eight more senators than normal. In a few short weeks, Mulroney was able to create a Progressive Conservative majority in the Senate and the GST bill was passed. This episode has since served as the most prominent example of the Senate's weak nature and its general subordination to the will of the prime minister.

5 Reform

Senate reform has been a topic raised numerous times in Canadian political debates. While some politicians favour the outright abolition of Canada's unelected upper house, many others believe political reforms to the existing institution would be more beneficial. One popular proposal for reform has been the "Triple-E" Senate. Originally championed by the Reform Party of Canada, a Triple-E Senate would feature three proposed improvements over the existing model: elected, meaning no more prime ministerially chosen senators; equal, meaning all provinces would have the same number of senators; and effective, with the consequent right to block legislation passed by the House of Commons. This model is currently in practice in the Australian Senate.

The Australian Senate also shows that such a model might not remedy the problems of the Canadian Senate. In Australia, there are 12 Senators from each state and two from each territory. In theory, Senators are obliged to represent their states in their decisions over any pieces of legislation. Critics, however, argue that Senators are driven more by party interests and that only independents have truly represented the interests of their states, notably Brian Harradine (1975-2005) from Tasmania. The same situation could develop in Canada where there would be equal representation from all provinces but the Senators would be constrained by their party ties.

Fully implementing the Triple-E Senate would require significant constitutional reforms, particularly to implement the "equal" element, and has never been seriously attempted. Limited reforms to the Senate were proposed as part of Prime Minister Mulroney's Charlottetown Accord package but the package was rejected in a referendum.

Demands for Senate reform have mostly been centred in the more populist West where popular dislike for the existing Senate is strongest. A useless upper house seems to be a waste of money, contrary to the belief held by some in the West of the superiority of smaller, more efficient, and less expensive government. This issue is exacerbated by those senators who attend only occasional sessions while still drawing a salary.

5.1 Attempts at reform

For most of its history the Liberal Party was the main advocate of Senate reform. In 1978 the Liberals issued a proposal booklet entitled A Time for Action calling for substantial change and proposing the creation of a "House of the Federation"; this was echoed by a number of Canada's premiers. Then-Prime Minister Pierre Trudeau tried to implement this proposal with the introduction of Bill C-60, but the measure was ruled ultra vires by the Supreme Court of Canada in 1979. Had the bill become law, it would have created a Senate that was somewhat responsible and where the distribution was seats was closer to equal among the provinces, but which still had few powers. Ultimately, the proposal was also rejected by most of the premiers, who were themselves divided over the power and the composition of the Senate.

Going into the November 1981 meeting to finally determine the make-up of Canada's new constitution, one of the premiers' top demands was for Senate reform. Trudeau had earlier expressed his wish for only minor reform that would not limit the power of the House of Commons to any great extent. In the long period of debate and compromise leading to the 1982 Constitution Act, the entire idea of reforming the Senate was rejected. The Supreme Court ruled that any change to the composition of the Senate needed unanimous support from the provincial premiers, and agreement between the federal government and the various premiers would have been almost impossible to achieve. The federal government and the premiers thus reached a compromise, the premiers giving away their Senate demands in exchange for an amending formula to their liking. The only change to the Senate was in the new amending formula. The change eliminated the Senate's constitutional veto, giving it the power to merely delay any amendment for 180 days.

5.2 Meech Lake

The Meech Lake Accord had no major Senate reform initiatives. This was despite Alberta Premier Don Getty promising to have his acceptance of any deal hinge on the issue. The issue was once again too difficult to be resolved by the provinces. Mulroney succeeded in appeasing Getty with a small change that would see the prime minster select every nominee from a list drawn up by the provincial governments. A promise was also included to discuss the issue of the Senate again at a later date.

While the ratification of the Meech Lake Accord was pending, Alberta held an election to fill a vacancy in the Senate and the people of Alberta elected Stanley Waters as their senator-in-waiting. He was then appointed to the Senate in 1990 by Prime Minister Mulroney and became the only elected senator in Canadian history. However, after the ratification process failed, Mulroney no longer considered himself bound to accept provincial nominees for the Senate as the accord had indicated and did not do so. Although elections continued in Alberta, Prime Minister Jean Chrétien did not acknowledge them and continued to pick whomever he saw fit for the Senate.

5.3 Charlottetown

In the negotiations over the Charlottetown Accord, the federal government could only maintain the momentum and possibility of an agreement by giving in to the provinces on many issues; one of these was Senate reform. The proposed deal finally gave in to Western demands for a Triple-E Senate (elected, effective, and equal) but also contained several compromises. The proposed Senate would have equality among provinces: each province would have six senators and each territory would have one, despite the wishes of some provinces for representation similar to that of the House of Federation proposed in 1978. Agreement on this issue was reached only by concessions to the provinces that had the most to lose from the equal representation system, Ontario and Quebec. In exchange for losing Senate representation, the provinces were given new House of Commons seats, making that chamber more proportionally representative. One other measure to ensure greater representation for Quebec was the double-majority clause, which stated that both a majority of francophone senators and a majority of the Senate as a whole would be needed to approve any bills concerning linguistic matters.

What the West had to give up was on effectiveness. The Senate in the original draft was very powerful. It received veto power over all legislation except for monetary matters that were not "fundamental policy changes". This would have allowed it to veto important matters such as the GST and the Free Trade Agreement, as well as bills concerning culture, immigration, and language among others. In the end, the Senate received total veto power over only fundamental tax policy changes and all other bills could be approved by the Commons alone.

The accord also allowed the members of the Senate to be selected by provincial governments. This last measure could have had a drastic effect, as Canadian provincial elections are traditionally in opposition to federal ones. Thus, a Senate appointed by the provincial governments would almost always be in opposition to the House of Commons.

The Charlottetown Accord was rejected in a referendum on 26 October 1992. It was strongly defeated in all four western provinces and in Quebec and strongly supported in all the Atlantic provinces except Nova Scotia where opinion was split almost evenly as it was in Ontario. The absence of a fully Triple-E Senate as part of the accord was a major factor in its defeat in the western provinces.

5.4 Today

Today, the conventional wisdom is that no one in Canada wants a new round of constitutional negotiations. There is a perception that the Canadian public is fed up with the issue. Also, it is perhaps considered prudent not to stir up another "hornet's nest". After all, in the aftermath of the failure of the Meech Lake and Charlottetown accords, the 1995 Quebec referendum on sovereignty very nearly succeeded.

Despite the difficulty of amending the constitution, it would still be possible to elect senators without major constitutional change. As suggested by Alberta, this could be accomplished if the prime minister simply established a policy of appointing anyone so elected. Though Brian Mulroney appointed a senator elected from Alberta, his successors as prime ministers have so far not been willing to do this.

The Canadian political landscape was significantly altered at the end of 2003 by the arrival of Paul Martin as new Liberal leader and prime minister and by the merger of the Canadian Alliance and Progressive Conservatives to form the new Conservative Party of Canada. Although Paul Martin has already declared that he will not appoint the elected senator for Alberta and wants to first focus on the equality and effectiveness of Parliament, it remains to be seen whether the new Conservative Party will maintain the Alliance's strong support for Senate reform. The Parliament established by the 2004 Canadian election will have a major influence on what, if any, new developments may be expected.

The Bloc Québécois advocates a unicameralist policy of outright abolition of the Senate, even though it also advocates full independence for Quebec, which would mean the end of the province's representation in the Canadian Parliament. The New Democratic Party of Canada also supports the Senate's abolition, as did its predecessor, the Cooperative Commonwealth Federation.

6 See also

• List of Canadian Senators
• List of Canadian Senators who resigned and were elected to the House of Commons

7 External link

• Parliament of Canada

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