The Senate Again? Let's Figure It Out

By Peter Russell

It must be a slow day in the newsrooms of the nation, when the biggest political story of the week is Canada’s Senate. Or is that the true purpose of the Senate – to give us something to talk about when nothing much is going on?

Second chambers in parliamentary history actually have had loftier purposes.

The question is are any of then valid today?

In English parliamentary history, the House of Lords preceded the House of Commons.

The lower house of parliament was created so that the landed aristocracy would not have to sit with commoners.

That was the rationale for giving Upper Canada and Lower Canada two chamber legislatures in 1791.

Of course in the more egalitarian society of the new world, a legislative chamber representing inherited property made no sense.

There remains a scintilla of this rationale  in the section of the Constitution of Canada that requires that a Senator own $4,000 of land in the province for which he is appointed.

Senator Mike Duffy’s summer shanty in Cavendish PEI might meet that requirement

A more relevant reason our founders had for making the Parliament of Canada a two chamber house, was to balance a House of Commons based on rep-by-pop with a chamber in which less populous “sections” of the country would have some protection against the will of the majority.

Thus in the first Senate, the less populous Atlantic provinces were assigned the same number of Senators – 24 – as each of Ontario and Quebec.

To serve this rationale, the Constitution requires that a Senator be “resident” in the province for which he is appointed.

Senator Duffy’s holiday jaunts to PEI from his Ontario home certainly do not meet that requirement.

And it is an important requirement.

Senators who are well versed in the problems of their province and enjoy some independence of government can ensure that those concerns are heard in the national parliament.

The fact that Senators, though selected by the leader of the governing party, do not serve at his pleasure and do not have to face an election campaign, affords them more political independence than most MPs.

That independence is an important condition for fulfilling the third function of an upper house – serving as a chamber of sober second thoughts.

Though Senators may not always pass the sobriety test, their institution has done good and valuable work for the country in improving legislation that the government majority has rushed through the House.

A case in point at the moment is Bill C-53,  that would give the assent of the Parliament of Canada to a bill currently before the UK Parliament, aimed at removing discrimination concerning female succession to the Throne and marriage to Roman Catholics.

The intent of Bill C-53 is fine.

But it ignores the fact that when Canada’s Constitution was patriated in 1982, the power of the UK Parliament to pass any law relating to Canada was terminated.

We can only change the law governing the succession to our throne by amending the Constitution of Canada.

It is to be hoped that the Senate halts this end-run around our country’s constitutional independence.

Prime Ministers have appointed many outstanding men and women to the Senate who have brought a wealth of valuable experience across a wide range of endeavours to the work of Senate.

But too often – much too often – Conservative and Liberal prime ministers have succumbed to crass political considerations in making their selections.

The appointment of Senator Patrick Brazeau, with full knowledge of his personal problems and extreme youth, is a case in point.

The Senate could easily be fixed, without any constitutional amendment, by a prime minister brave and principled enough to announce that he or she will no longer select Senators for their partisan political credentials but for the experience and wisdom they can bring to the country’s chamber of sober second thoughts.

This reform is much to be preferred to the options which Mr. Harper has referred to the Supreme Court for constitutional scrutiny.

These include a Senate formed by provincially elected Senators that is a recipe for unending legislative deadlock, and abolition of the Senate.

I can pretty well guarantee readers that the Supreme Court will tell Mr. Harper that both options are closed to him without a constitutional amendment involving the provinces.

And further, that there is not a snow-ball’s chance in hell of either proposal winning the necessary provincial support.

In the meantime, let's hope the most recent Senate scandals induce the Prime Minister to be more responsible and less political in selecting Canadians to be summoned by the Governor General to our Canadian upper house. 

About Peter Russell

Peter H. Russell is Professor Emeritus of Political Science at the University of Toronto. He is one of Canada’s leading constitutional scholars, has published widely in the fields of aboriginal policy, the judiciary and parliamentary democracy, and is a frequent commentator on Canadian government and politics. He is the founding Principal of Senior College at the University of Toronto. Peter Russell is an Officer of the Order of Canada and a Fellow of the Royal Society of Canada.
Posted date : February 12, 2013

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