Fixing the Democratic Deficit means Fixing the Senate
by Margret Kopala

Published in the Ottawa Citizen, May 29, 2004

Quebec and Alberta recently agreed on appointing Senators and Supreme Court Justices from lists provided by provinces.

The March 23, 2004 news release also adds that the premiers, through the Council of the Federation, have identified strengthening the federation as a priority area. “Alberta is co-lead, along with New Brunswick, on a special council committee of ministers to develop and consider new models for selecting individuals to serve in key national institutions …”

For Quebec and Alberta, and for the Council of the Federation, this is a significant step with potential for restoring legitimacy and historical integrity to Canada’s Senate.

Renovating parliament is Canada’s best hope for raising governance standards. In this regard, ministerial responsibility, free votes and other democratic deficit proposals tinker usefully at the edges.

Our parliamentary system, however, depends on party discipline to maintain order and get things done. Power tends, therefore, to be concentrated in the prime minister and other party leaders’ offices which means members of Parliament never fully exercise either independent Burkean judgment or the populist will of their constituents.

An effective Senate could check this concentration of power but it too is organised on partisan lines, appointed by the prime minister and subject to party discipline. Barring a collapse of the party system, then, Senate reform is necessary.

In recent times, Senate reform has been western Canada’s calling card for more influence at government’s center. According to a poll undertaken by the Canada West Foundation, Ontarians also see the need for reform and now all the provincial premiers appear to agree too.

Certainly, they have historical precedent on their side.

According to Mapleleafweb.com, a website operated by political scientists at Lethbridge University, efforts to reform the Senate date back to 1874 when Member of Parliament David Mills proposed provincial appointment of senators in the House of Commons.

The Constitution Act of 1982 gave provinces the right to approve changes to the Senate but renewed attempts at reform were already underway in the 1960s - partially in response to separatist pressures in Quebec and, later, to western alienation.

Three major Senate reform proposals, each with different powers tied to different classes of legislation, ensued:

First, transforming the Senate into The House of the Federation (1978) was based on recommendations made by the Pepin-Robarts Task Force on Canadian Unity who used the German Bundesrat model and recommended provincial governments appoint senators.

Then the Triple-E Senate (“Equal provincial representation, Effective powers, directly Elected Senators”) arrived in the 1980s. Its most recent incarnation, passed by the Alberta government in May 2003, calls for 6 senators per province and 2 per territory and direct elections.

Finally, the Charlottetown Accord (1992) allowed indirect and direct elections, 6 senators per province, one each for the North West Territories and the Yukon; a guarantee of representation by Aboriginals; and an absolute veto over natural resources and French language and culture.

Of these models, only Triple E denies provincial governments a meaningful role even though this would give Quebec’s distinctness appropriate expression in the federal system while obviating conflicts between directly elected senators and provincial premiers as spokespersons for their provinces.

Mapleleafweb.com suggests another problem with this approach. “Directly elected Senators would have the legitimacy to exercise the broad powers given to them under the Constitution Act, 1867. Some academics argue that giving the Senate nearly equal powers to the House of Commons is incompatible with the principle of responsible government (government is responsible to the elected representatives of the people). For Parliament to function, direct election would have to be accompanied by a limiting of the Senate’s power in most areas … (requiring) a constitutional amendment.”

This bit of arcana suggests today’s premiers, by offering lists of appointees, are on the right path and that Canada’s next prime minister should remain open to their proposals.

“Despite current criticism of the Senate,” says Mapleleafweb.com, “the Fathers of Confederation expected it to play a major role in the new Canadian nation. This was in keeping with their belief that Canada needed a strong central government. As one of the two houses in Parliament, the Senate was expected to play a key role in … reconciling differences between English and French Canada, representing the regions and minority interests and serving as a check on the House of Commons.”

Well over a century later, a Senate based on lists from the provinces could finally get to do its job.

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