Protecting Canadian Democracy: The Senate You Never Knew
by Senator Serge Joyal
The Senate is likely the least admired and least well known of our national political institutions. Its work attracts neither the interest of the media, the respect of elected politicians, the sympathy of the public, nor even the curiosity of academia. How paradoxical that very few Canadians have an understanding of the history, role, and operations of the Senate, and yet everyone seems to have an opinion on the institution. The conventional wisdom in our modern political culture is that the Senate is an outdated relic that has outlived its usefulness. Why is the Senate viewed with such contempt? Some argue that this legislative body designed by the Fathers of Confederation has become “an affront to federalism and democracy.” Such was the level of public discourse on the Senate when I was appointed to the Upper Chamber in November 1997.
The Senate of Canada is a house not so much divided as besieged, by politicians and commentators at either end of the political spectrum. On the left, the New Democratic Party has unreservedly championed the abolition of the Senate, condemning the Upper Chamber as a private club that exists to advance the interests of a well-heeled elite. On the right, one finds the Canadian Alliance advocating an American-style Senate with equal representation from every province. At times, Prime Ministers have diminished the institution, either by abusing their power of appointment or by attempting to strip the institution of its legislative powers. In this context, it is not surprising that some federal cabinet ministers have publicly questioned the need for an upper chamber.
This hostility for the institution was jarring given the exemplary qualifications and devotion to public life demonstrated by Senators on both sides of the chamber. The more I became acquainted with my new colleagues, the more I came to appreciate their contributions to public life. Among many others, I think of Lise Bacon, who represented the interests of Québec within Canada as the province’s Deputy Premier (1985-94); Michael Pitfield, who served as Clerk of the Privy Council in the Government of Pierre Trudeau; Dr Wilbert Keon, surgeon and founder of the Ottawa Heart Institute; and Charlie Watt, an Innu leader who was instrumental in constitutional negotiations leading to the recognition of aboriginal rights in the Constitution Act, 1982.
Unfortunately, the accomplishments of the entire institution can be instantly discredited by the ill-advised actions of a single member. The attendance record of former Senator Andrew Thompson virtually monopolized national media coverage of the Upper Chamber, from December 1997 until he resigned after Senators passed a motion finding him in contempt of the Senate.
Even distinguished former Senators have called the role of the Senate into question. In the summer of 1998, two former colleagues used the occasion of their retirement as an opportunity to propose reforms that would have substantially weakened the autonomy of the Upper Chamber and the effectiveness of Parliament itself. Former Senator Philippe Gigantes published a booklet in which he gave credence to the idea of the Premiers making half of all Senate appointments, while Jacques Hébert, the former Government Whip in the Senate, announced his support for replacing the legislative veto of the Upper Chamber with a so-called “suspensive veto” – an initiative that would essentially reduce its powers to those of a government focus group.
These events happened to coincide with the negative comments of a federal Minister regarding the Senate. These comments called for a response. On 13 August 1998, I wrote to the Minister, stating that:
What our country dramatically needs is not an Upper Chamber that duplicates the attacks and maintains the tensions and prejudices conveyed in the House of Commons, but rather a forum in which the regional and linguistic differences that characterize us are reconciled, which speaks for this country as a whole and expresses its common values.
I then responded to Senator Hébert in a lengthy letter on 27 August 1998:
To remove the veto would be to remove the legislative function of the Upper Chamber. If we remove the Senate’s absolute veto, we would, in fact, be undermining its role together with its utility.
This theme of preserving the fundamental character of Parliament and the values entrenched in its institutions was further expanded in an article published in the February 1999 edition of Cité Libre.
A review of the existing academic literature on the Canadian Senate revealed a pronounced lack of interest among the nation’s political scientists on the origins, purpose, and operating principles of this institution. Many of the current reference texts on the topic are more polemic than academic in nature, containing sweeping and dismissive statements that fail to seriously address or even consider the need for equilibrium in the constitutional architecture of our parliamentary institutions. As Lysiane Gagnon has written, “in the field of ideas, the avoidance of written and verbal confrontation only leads to intellectual frailty and sterile conformism of the lowest order.”
The situation was aggravated by the fact that the last major academic text on the Senate was published forty years ago. This shortage of scholarship is astonishing when one considers that, in the past thirty years alone, no less than twenty-eight government and political party initiatives on Senate reform have failed. There was an obvious need for current academic research on the constitutional principles underlying our parliamentary institutions in general and the Senate in particular. In spring 1999, I invited a group of respected scholars from the fields of history, political science and constitutional law to contribute to an in-depth review of the origin, role, and evolution of the Senate of Canada. Our goals were to challenge the existing dogma surrounding this institution and to expand the discourse beyond prefabricated models for Senate reform that are often contemplated in isolation from the political, historical, and socio-demographic realities of our country.
At the same time, we knew that any major new text on the Senate would have to be accessible not only to academia, but also to those in public life and other interested Canadians. The Senate is a national political institution. Discussion over its role and purpose should not be confined to the lecture halls of our universities; it should also take place in other forums across the country. For this reason, our book draws not only from the academic expertise of a number of distinguished scholars, but also from the practical experience of seasoned political professionals. In other words, this volume serves two complementary functions: to inform and to stimulate discussion.
Since this project began, a number of events have reinforced the necessity of our endeavours to produce this volume. For one, anti-Senate rhetoric shows no signs of abating and remains void of any constructive ideas or historical context. Perhaps out of frustration at their inability to achieve their political goals, some abolitionists have descended to slurring the individuals who serve in the Senate.
It also became clear from certain studies on the operation of the House of Commons that the deficiencies observed there with regard to its composition, the electoral system, the nature of parliamentary debates, the operation of its committees, and the influence of the Executive on its members required an equal if not larger number of fundamental reforms. In fact, to be effective, the reform of one cannot occur without a substantial review of the other. Those who merely propose simplistic solutions for Senate reform rarely mention this complementary aspect of the two houses of Parliament. A poorly reformed Senate may turn out to be incompatible with the kind of House of Commons we really want. In a speech to the Canadian Political Science Association, I asserted that:
Before wanting to make the Senate another House of Commons, we should first solve the basic problems that undermine the democratic operation of that chamber and then act on the criticisms that have put the finger on the most obvious weaknesses in the operation of our system of responsible government.
The June 2000 passage of Bill C-20 (the Clarity Act) has further destabilized the equilibrium between the two chambers of Parliament, barring the Senate from its role in evaluating the wording of the question and the majority required in respect of any referendum on Québec secession. On this subject, a letter (which I co-signed) dated 31 January 2000 to the Leader of the Government in the Senate stated:
Bill C-20 minimizes the role of the Senate in such a process to a mere consultative role. Such a role fails to recognize and respect the equal status of the Senate as one of the three components of the Parliament of Canada. Furthermore, the Senate, as the embodiment of the federal principle, has a duty to protect its equality so as to guarantee its unfettered ability to fulfil its constitutional function at all times in the future.
This legislation is an obvious example of a persistent trend. In one session alone five bills were passed and one Government White Paper was introduced in the House of Commons excluding the Upper Chamber from a role in the review process or reporting mechanism of proposed legislation. The consequence of this diminished monitoring role for the Senate is a corresponding concentration of power in the hands of the executive branch. In my opinion, and in that of other Senate colleagues, this situation had to be addressed.
In this context, an in-depth reflection on how to adapt the institution to contemporary needs was all the more urgent. Yet, as the late eminent scholar and former Senator Eugene Forsey observed, major constitutional changes are “not in the cards.” Given this situation, are there any improvements that could be implemented? The legal, constitutional, and political obstacles to Senate reform seem insurmountable. Were we condemned to inaction? Fortunately, one hallmark of the parliamentary system in the British tradition is its capacity to evolve through conventional practices rather than through formal constitutional settlements. According to the unanimous decision of the Supreme Court in Reference re Secession of Quebec,
The global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state… include constitutional conventions and the workings of Parliament. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning. 
The second avenue to institutional reform is through legislative initiatives within the competence of the Parliament. Section 44 of the Constitution Act, 1982 states the parameters in the following terms: “Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” In other words, a simple majority in both the Senate and the House of Commons can pass important institutional reforms of Parliament, without resorting to a constitutional amendment involving the provinces.
Notwithstanding the failure of three major constitutional reform initiatives, our country has continued to evolve and adapt in the twenty years since 1982. Canada has undergone some fundamental economic, social, and political changes during this period. The last few years have seen a number of successful bilateral constitutional amendments, among them: educational reform in Québec and Newfoundland (including Labrador), recognition of the equality of status for the linguistic communities of New Brunswick, implementation of the Nisga’a treaty creating a level of aboriginal self-government, and the creation of a fixed link from New Brunswick to Prince Edward Island. All of these changes were brought about by a constitutional amendment requiring the approval of the Parliament and the legislature of the concerned province.
Equally important, in 1996, Parliament approved Bill C-110, a bill that is “constitutional in nature” and that obliges the federal government to obtain the approval of five regions before introducing any formal resolution to amend the Constitution based on the seven-fifty formula. More significant, however, is the variety and number of reform initiatives through intergovernmental agreements, for example, the Social Union, the Internal Trade Agreement, and the agreement on the transfer of the exercise of jurisdiction over manpower training. These broad-based transformations have been implemented by legislative or executive initiatives of the federal government, without recourse to complex amending formulae.
This book contends that the same dynamic – that of constitutional evolution without formal amendments to the Constitution – can be applied to the improvement of the functioning of the Canadian Senate. To be successful, however, it is necessary to reflect on the origin, record and current function of the Senate within Parliament, as well as on the institutional principles and the political context in which it operates.
CHAPTER 1: BICAMERALISM AND CANADA’S FOUNDERS: THE ORIGINS OF THE CANADIAN SENATE
It seemed logical that a volume on the history, role and evolution of the Canadian Senate should begin with an analysis of the context in which the Upper Chamber was established in 1867. Having co-published Canada’s Founding Debates in 1999, Janet Ajzenstat, Professor Emeritus of the Department of Political Science at McMaster University, is eminently qualified to provide insight into the political and constitutional considerations that led to the creation of the Canadian Senate.
Professor Ajzenstat’s chapter assesses the influence of the colonial Legislative Councils as antecedents of the Senate. She also addresses whether or not the House of Lords served a model for our Upper Chamber and discusses the influence of the American Civil War on the architects of Canadian federalism. Her chapter does not stop at 1867, but continues with an account of the Canadian Senate over the first fifty years of Confederation, examining the adaptations to its legislative role in the life of the new Dominion. At the same time, she provides a review of the corresponding evolution of the House of Commons, assessing the degree to which the two chambers complement each other. Finally, Professor Ajzenstat considers the valuable lessons that the Confederation debates teach Canadians about our parliamentary institutions; namely, that these institutions were carefully designed to serve the vital role of circumscribing the power of the executive branch of government.
CHAPTER 2: FORTY YEARS OF NOT REFORMING THE SENATE – TAKING STOCK
Over the past thirty years, the Canadian political landscape has sprouted twenty-eight major proposals on Senate reform; proposals championed by federal or provincial governments, commissions and political parties. All of them failed. In fact, since 1867, there have only been two constitutional amendments regarding the Senate. It seemed altogether appropriate that this volume on the Senate should include a chapter that would evaluate these proposals and offer an explanation for their failure.
Dr Jack Stilborn directed research for the Special Joint Committee on the Future of Canada in 1991 and is currently a senior research officer at the Library of Parliament. At my request, he conducted a comparative analysis of these twenty-eight proposals on Senate reform. His review identifies ways of improving the Senate within the current constitutional framework. Dr Stilborn’s analysis highlights the conceptual weaknesses of these constitutional proposals, offering a set of criteria for evaluating the feasibility of future Senate reform initiatives.
CHAPTER 3: BICAMERALISM IN FEDERAL PARLIAMENTARY SYSTEMS
Many mature democracies, including all the members of the G8, operate under the regime of bicameralism; a system in which the legislative branch of government is divided into two autonomous chambers. Bicameralism is a common characteristic of large federal states (i.e., the United States, Germany, Canada, Australia, and India) for obvious reasons: the Upper Chamber can serve to balance national and sectional interests and, in some cases, provide a forum for the representation of minority groups. Short of creative and complex gerrymandering, unicameralism has difficulty achieving these objectives.
Canada was the first democracy to apply the Westminster parliamentary model to a federal state. This long tradition of institutional innovation is perhaps part of the reason why our country has produced such highly esteemed experts in the study of federalism and bicameralism as Ronald Watts, Principal Emeritus and Professor Emeritus of Political Studies and Fellow of the Institute of Intergovernmental Relations at Queen's University. Professor Watts immediately came to mind as someone whose knowledge and understanding would enrich the calibre of this volume. His chapter examines the particular features of upper chambers in federal systems of government. Professor Watts also contrasts the high degree of legislative autonomy enjoyed by sub-national governments in Canada (i.e., the provinces) with the significantly more centralized political apparatus of most federations.
CHAPTER 4: THE SENATE OF CANADA AS A COMPLEMENTARY CHAMBER TO THE ELECTED HOUSE OF COMMONS
The Senate was a key element of the compromise that made Confederation possible. Its constitutional architects designed an Upper Chamber that would reflect the federal status of the new Dominion while also serving as a mechanism for reinforcing government accountability. One of the reasons for the failure of so many proposals aimed at structural reform of the Senate was that they neglected to take these institutional characteristics into account.
Gil Remillard, Professor at Montreal’s École nationale d’administration publique, former Québec Minister of Justice (1988-93) and author of Le fédéralisme canadien, draws from his substantial political and academic experience to provide the reader with an in-depth understanding of the Senate as a complementary chamber to the House of Commons. His chapter contrasts the role of the Upper Chamber, as the federal legislative body created to support regional and minority interests, with the mandate of provincial governments to advance the concerns of their particular province. Professor Rémillard addresses the question of whether the Senate should be an instrument for provincial power in Ottawa or a forum within Parliament for the representation of Canada’s diverse regional, linguistic, cultural, and socio-economic interests.
CHAPTER 5: WHICH CRITICISMS ARE FOUNDED?
As I have mentioned, there is no shortage of criticism levelled at the Senate. Almost invariably, however, this criticism comes from those who are least familiar with the Upper Chamber. One must distinguish the valid criticisms of the institution from the folklore surrounding the Senate and its members. When evaluating such grievances, it is also important to consider the impact that any institutional reform of the Upper Chamber might have on the constitutional equilibrium of the country.
Clearly, there is a need for an honest assessment of the institutional flaws of the Senate, along with an examination of the prospects for constructive change. Having served as a Senator since 1979, Minister of State for Federal-Provincial Relations (1986-91), Leader of the Government in the Senate (1986-93), Lowell Murray is one of the most qualified authorities in Canada to offer this assessment. His chapter contrasts the overall academic approach of this book by offering an insider’s perspective on the institution. Senator Murray identifies the valid criticisms of the Senate and explores non-constitutional avenues for parliamentary reform, while also engaging the reader in a frank discussion on whether or not the Senate is the best mechanism for the representation of sectional and regional interests at the federal level.
CHAPTER 6 – THE CANADIAN SENATE IN MODERN TIMES
Although both are autonomous legislative chambers of the national Parliament, the Senate and the House of Commons serve different functions. The Senate is designed to review Government legislation and scrutinize the activities of the Executive, with an emphasis on the interests of under-represented groups and regions. As Canada has evolved, so too has its political institutions. An appreciation of the changing role of the Canadian Senate is an essential component of any informed discourse on parliamentary reform.
C.E.S. Franks, Professor Emeritus of Political Studies at Queen’s University and author of The Parliament of Canada, is an internationally respected observer and analyst on government accountability and inter-governmental relations. His chapter traces the evolving role of the Senate from 1957, examining the patterns and the appropriateness of how the Senate has used the legislative powers at its disposal. In the process, he addresses two conflicting criticisms of the Upper Chamber; that it is either too active in national affairs or, conversely, not active enough. Professor Franks also evaluates the extent to which the legislative and investigative roles of the Senate are complementary to those of the House of Commons.
CHAPTER 7: COMPARING THE LAWMAKING ROLES OF THE SENATE AND THE HOUSE OF COMMONS
A comparative analysis of the legislative and committee activity of both the Senate and the House of Commons is required in order to determine the optimal contribution that the Senate can offer to Parliament. In his analysis of how the Senate studies and debates proposed legislation, Paul Thomas, Duff Roblin Professor of Government at the University of Manitoba, provides insight into the different yet complementary roles played by both houses of Parliament.
Professor Thomas notes that the real legislative influence of the Senate is largely overlooked. His chapter underscores the role of the Senate in scrutinizing the activity of both the public service and the executive branch of the federal government. Professor Thomas also assesses the substantial contribution of the Canadian Senate to public policy development and review through its special studies on such diverse issues as poverty, telecommunications, land use, and scientific research; observing that few of these studies were undertaken in the context of a legislative initiative already introduced by the government.
CHAPTER 8: THE IMPROVEMENT OF THE SENATE BY NON-CONSTITUTIONAL MEANS
Any changes to the Senate ought to be designed so as to improve the efficiency of the Upper Chamber and enhance its working relationship with the House of Commons and the federal Cabinet. Clearly, this would improve the efficiency of Parliament and government as a whole. Given the current political and social context, it is equally obvious that any sweeping constitutional amendment on the subject of Senate reform is neither feasible, nor really desirable, at this time.
In his chapter, David E. Smith, Professor of Political Studies at the University of Saskatchewan, provides a set of proposals for reform of the institution that are consistent with the founding principles of Senate and do not require amendments to the Canadian Constitution. His monumental and innovative text includes a "Declaration of Principles" that are intended to serve as a guideline for any future proposals to reform the Upper Chamber.
CONCLUSION AND APPENDIX
The closing chapter is intended to stimulate debate on the constitutional role of the Senate. Initiatives are discussed that would improve the Upper Chamber, while respecting the principles on which the Senate was founded and ensuring the equilibrium of the constitutional architecture of Parliament. Specifically, the final chapter assesses the significance of the Senate’s veto power, suggests changes to its appointment process, and examines the legislative independence of the Upper Chamber in the context of conflicting institutional and party loyalties. Any comprehensive attempt at improving the Senate must address these three issues. Sectional interests, the rights of linguistic minorities, the status of Aboriginal peoples, and the role of Parliament in relation to the rights and freedoms entrenched in the Charter are presented as the inescapable references by which one must evaluate the merits of the Senate and any proposal for its reform.
Finally, there is an appendix, which includes several charts and many statistics on the composition and operation of the Senate. The database from which this important information was generated is now available to all researchers and interested persons in an easily accessible format.
The academic research and critical reflection contained in this book will hopefully serve as the basis for a debate that goes beyond the empty rhetoric and prefabricated conclusions that have heretofore characterized public discourse on the Canadian Senate. In fostering a better understanding of the nature of our parliamentary institutions and the values they embody, we seek to stimulate a discussion of how our system of government should function. It is our hope that this open exchange of ideas will result in successful proposals for the practical, real, and immediate improvement of the Senate of Canada.
 Aubry, “Trio in Cabinet Quietly Hope to Scrap Senate,” A9: “The House of Commons’ anti-Senate coalition has the support of several prominent parliamentarians, including at least three closet abolitionists in [the federal] cabinet.”
 Senator Thompson attended only twelve sittings of the Senate from 1990-1997, citing poor health (supported by medical certificates) as the reason for his chronic absence from the Chamber. When it was discovered that Senator Thompson was actually residing in Mexico, the Senate ordered him to appear in the Chamber. He failed to comply with this order, and was found in contempt of the Senate. As a result, Senator Thompson was suspended without pay, prompting his resignation.
 On 5 June 1998, Intergovernmental Affairs Minister Stéphane Dion stated to the Canadian Press in Calgary that he was “not in love with the Senate we have.” (“Dion dit non au Sénat élu,” Le Droit, Monday, 6 July 1998, 17.)
 For example, Peter Hogg, an otherwise rigourous scholar of constitutional law, tersely summarizes the agreement reached by the Fathers of Confederation on the creation of an Upper Chamber, opining: “It is obvious that this plan was fatally flawed.” (Constitutional Law of Canada, 3rd ed., 241.)
 Lysiane Gagnon, “Le Syndrome Dutoit-Boilard,”A13: “Dans celui (le domaine) des idées, le refus de la confrontation écrite et verbale ne mène qu’à la mollesse intellectuelle et au conformisme le plus sterile.”
 Brown, “MPs Plan Demonstration against the Senate on June 8,” A10: “Helping to organize the demonstration are three abolitionists from the Bloc Québécois, Jean-Paul Marchand, René Canuel and Gérard Asselin, and Reformer Rob Anders who wants an elected Senate… ‘We all agree that we’ve got an out-of-touch, arrogant, tax-and-spend institution,’ said Anders.”
 Bellavance, “Senator Files Defamation Suit against Bloc MP," A8. In April 1998, then Bloc Québécois MP Jean-Paul Marchand sent his constituents, at taxpayers’ expense, an anti-Senate leaflet in which certain Senators, myself included, were named as collecting a House of Commons pension along with their Senate salaries. In response, I launched a defamation suit in Québec Superior Court. Senator Céline Hervieux-Payette, who was also smeared by the leaflet, filed a similar action. Mr. Marchand later apologized, calling his own actions “a deplorable mistake.” Eventually, he agreed to pay an out-of-court settlement. On the other side of the chamber, former Senator Ron Ghitter (PC – Alberta) successfully filed suit against Rob Anders for remarks made by the Calgary MP in a Reform Party fundraising letter.
 Four Senate vacancies were filled by the Prime Minister just in time to defeat an amendment to Bill C-20 from the Government side of the Senate. The amendment to Bill C-20 would have restored the constitutional role of the Upper Chamber regarding secession. The four Senators appointed were Betty Kennedy (Ontario), Raymond Setlakwe (Québec), Raymond Squires (Newfoundland and Labrador), and Jane-Marie Cordy (Nova Scotia). The amendment was defeated on 29 June 2000 by a vote of forty-six yeas to fifty nays, with three abstentions.
 Bill C-25: An Act to amend the National Defence Act and to make consequential amendments to other Acts; Bill C-32: An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development; Bill C-43: An Act to establish the Canada Customs and Revenue Agency and to amend and repeal other Acts as a consequence; Canada, Department of Finance, Reforming Canada’s Financial Services Sector: A Framework for the Future, 80 (Proposed Measure 11).
 In the previous two sessions of Parliament, the following legislation was introduced to restore the Senate's status in the twenty-seven statutes from which it had been excluded since 1920: An Act to better assist the Senate to serve Canadians by restoring its rights, opportunities and functions (Bill S-31, 36th Parliament, 2nd Session), An Act to maintain the principles relating to the role of the Senate as established by the Constitution of Canada (Bill S-8, 37th Parliament, 1st Session).
 The initiatives in question were: 1) Constitution Amendment (Powers of the Senate), proposed by then Minister of Justice John Crosbie in House of Commons on 9 May 1985; 2) the Meech Lake Constitutional Accord (1987); 3) the Charlottetown Accord (1992).