1. An exceptional amount of the Joint Committees' time was taken up with the question of Senate reform. This is only partly because 5 of our 17 members are Senators. The more basic reason is that, in the Committee's view, Senate reform is one of the most pressing and urgent areas for constitutional reform.
2. Witnesses appearing before the Joint Committee on this issue can be divided into three categories:
(ii) Those, like the Canadian Committee for a "Triple E" Senate, who believe that reform is possible but that chances of success would be less under the 1987 formula than they are under the 1982 formula.
(iii) Those, like Dr. Peter Meekison, a longtime constitutional advisor to Alberta, who believes Senate reform is possible and that the proposed changes to the amending formula would not harm its chances of success:
My own feeling is that Senate reform is no more difficult under the proposed change than it is under the existing formula, in that merely looking at the mathematics, unanimity versus 2/3:50, overlooks entirely, I would argue, the realities of coalition behaviour.
I think it is very difficult for a province to cast a veto. It is very difficult to do so. Obviously it is there to be used, but the natural tendency in those circumstances is to try to find a compromise. So I feel that what Alberta has gained under this accord is a guarantee that constitutional discussions will take place on Senate reform.
3. Before commenting on the merits of the controversy about Senate reform, it is convenient to review the relevant background to the issues under discussion.
4. At present, any constitutional amendment relating to the method of selecting Senators, the powers of the Senate, the number of Senators from each province, and the residence qualifications of Senators, requires the approval of the two Houses of Parliament and the legislative assemblies of at least two-thirds of the provinces containing at least fifty per cent of the population of the provinces.
5. It should also be noted that the 1982 Act limited the authority of the Senate over amendments to the Constitution (including amendments affecting the Senate). Section 47 provides that amendments to the Constitution may only be delayed by the Senate for a period of one hundred and eighty days after they have been approved by the House of Commons.
6. The 1987 Accord provides that "any amendment in relation to the powers of the Senate and the method of selecting Senators" must have the unanimous support of the House of Commons and the Senate and the legislative assembly of each of the provinces.
7. The 1987 Accord contains two other provisions which are relevant to the Senate. The entrenched agenda for future First Ministers' Conferences would include "Senate reform, including the role and functions of the Senate, its powers, the method of selecting Senators and representation in the Senate".
8. Moreover, until Senate reform is accomplished, the political accord accompanying the proposed constitutional amendment of June 3, 1987 provides a "transitional" appointment procedure effective immediately as follows:
Until the proposed amendment relating to appointments to the Senate comes into force, any person summoned to fill a vacancy in the Senate shall be chosen from among persons whose names have been submitted by the government of the province to which the vacancy relates and must be acceptable to the Queen's Privy Council for Canada. (Emphasis added)
9. In 1975, a constitutional amendment provided for representation in the Senate from the Yukon and Northwest Territories on the basis of one Senator for each territory. In the case of Senate seats occupied by the Senators from the territories, there would not be "a province to which the vacancy relates". Therefore, it would appear to us that appointments to the Senate from the Territories would continue to be made by the Governor General under section 24 of the Constitution Act, 1867.
10. The Senate was created to fulfil two major roles in the federation. It was to protect and represent sectional interests or those interests peculiar to a region or to linguistic or religious groups. This has become known over time as representing regional interests. The other major role was to act as a counterweight to the popularly elected House of Commons and thus to encourage political stability. The exercise of these roles was to be provided in the "sober second thought" that was to be given to proposed legislation by the Senate.
11. The role of protecting and representing regional interests is reflected in the structure of the Senate. In 1867, an equal voice was given to each region, originally three, later expanded to four, regardless of the size of its population. This meant that both the less populous provinces and the predominantly Frenchspeaking province of Quebec were to be given some protection against the wishes of a simple majority of Canada's population expressed in the decisions of the House of Commons.
12. No institution of Canadian government has been the subject of so much controversy regarding the reasons behind its creation, whether the original objectives for its creation have been met and finally how it can be changed so that it may better fulfil its original purpose. Within the first three days of its first sitting in 1867, at least one Senator publicly complained about the lack of useful work to do. Since 1890, the prospect of reform has been under "active consideration".
13. A major focus of reform proposals has been the method of selection of Senators. Various proposals for popular election, provincial government appointments and a mixed formula whereby half would be appointed and half elected have been proposed through the years. In 1908, it was proposed that onethird should be named by the federal government, another third by provincial governments and the final third by universities and public bodies. In recent years, reform proposals have included adaptation of the German Bundesrat model whereby the provinces would send delegations to represent them in the federal Senate. The Australian model has been the object of several parliamentary delegations. In 1984, a Special Joint Committee on Senate Reform called for a Senate elected directly by the people.
14. The major thrust of these proposals is the attempt to find some legitimacy for the exercise of power by the Senate. There is a concern that, because of the present method of selection of Senators (by federal appointment), it is impossible for the Senate to represent the regions of Canada effectively. Perhaps through a change in the method of selection, it could assert its place as protector and enuciator of regional and minority interests and perform a more active role in the legislative life of the country.
15. At the moment, the two leading reform theories appear to be either outright abolition of the Senate (supported by the New Democratic Party) or establishment of a "Triple E" Senate, a concept particularly popular in Western Canada.
16. The idea of outright abolition is selfexplanatory. The concept of the "Triple E" Senate involves a Senate that is "elected, equal and effective".
(i) Elected directly by the people.
None of the witnesses who wished to see the Senate retained in some form disagreed with the concept of an elected Senate.
(ii) Equal representation of the provinces.
At present, 104 Senators are distributed on a basis that achieves an approximation of regional equality, as follows:
|Prince Edward Island||4|
The disincentive for Quebec and Ontario to move towards "equal representation" is evident from the numbers. As Dean Whyte of Queen's University Law School commented:
All I want to say is that I think it is reasonable to predict that Ontario and Quebec have a strong incentive not to agree to reform of the Senate, since they will control a quarter of the Senate each. This is big provincial influence in Ottawa and I do not understand the terms under which they are going to give that up.
(iii) Effective powers to exercise.
A principle issue here is the relationship between the Senate and the House of Commons, as explained by Dr. Meekison:
One of the issues that will have to be considered at great length is the relationship between a reformed Senate and the House of Commons and what kind of deadlock provisions. So you get into the question of effective... Should the Senate, which currently has considerable legislative authority, continue to exercise the full range of the legislative authority it now does or should it have specialized authority? What areas would it be in? It would perhaps be in areas of particular concern to provinces.
17. It is clear from all this that many issues remain to be worked out in connection with the proposal for a "Triple E" Senate. There is as yet no political or public consensus.
18. There is however a question of principle. Some witnesses commented that it would be conceptually awkward to be seen to impose a "Triple E" Senate, incorporating the idea of equality, on provinces that did not have an equal voice in the amendment that brought it into existence. On that basis, it was considered important at Meech Lake to establish the principle that each province should have a veto over changes in important national institutions such as the Senate. This point was also made by former Liberal Cabinet Minister J.W. Pickersgill:
I do not think it will make more than a millimetre's difference whether you require all the Premiers or eight-tenths of them. I do not see it as of any importance whatever. It was obviously essential to get the approval, curiously enough, of these western Premiers to recognize this unanimity rule as an expression of the equality in status of all the provinces. I think it is a perfectly reasonable position to take.
19. Clearly there are strong institutional interests that could be expected to resist change. The Committee heard frank comments about the patronage potential from the Canada West Foundation in respect of the "transitional" appointments procedure:
The proposals not only maintain patronage appointments but they encourage premiers to perpetuate patronage and make in essence an empty mockery out of the commitment to Senate reform.
20. Former Senator Eugene Forsey identified a number of other "vested interests".
The chances of any amendment being adopted even under the seven-province formula are virtually nil. Ontario and Quebec will never accept any reduction in the number of Senators from either province; nor will the Atlantic provinces any reduction in their quotas. The House of Commons will never accept any change that gives the Senate more real power; the reformers will never accept any change that does not. Under the unanimous consent formula, the chances of change are microscopic.
(Forsey submission, p. 18)
21. But the Committee has heard from other witnesses who believe that adoption of the 1987 Accord would improve the prospects of successful Senate reform. So long as Quebec refused to participate in constitutional change, they told us, there was no hope of Senate reform: first because Ontario, with its 24 Senate seats and about onequarter of the population of Canada, could in Quebec's absence itself veto any proposed amendment; second, because it was assumed that neither the federal government nor the other provinces would ever want to repeat the 1982 trauma of imposing on Quebec a major constitutional change without its consent; third, Quebec took the legal position that it could veto Senate reform in any event because any change to the elaborate provisions in section 22 of the Constitution Act, 1867 allocating Quebec Senate seats in respect of "each of the 24 electoral divisions of Lower Canada" would be an amendment "that applies to one or more, but not all, provinces" and therefore under section 43 of the Constitution Act, 1982, would require the resolution of "the legislative assembly of each province to which the amendment applies", namely, Quebec.
22. Accepting, therefore, the threshold imperative of bringing Quebec's vote to the constitutional table, the provincial premiers agreed to tackle Quebec's demands first and postpone consideration of Senate reform until later. The Edmonton Declaration of August 1986 expressly postponed consideration of Senate reform until after the "Quebec Round" had been completed. At that time, without the federal government een being present, the provincial premiers established that there would be no direct action on Senate reform in the 1987 negotiations. Moreover, moving to accommodate Quebec meant acceptance of the idea of an explicit Quebec veto over amendments to important federal institutions including the Senate. This had been spelled out by Quebec in May 1986 in the statement of its "five conditions". Having regard to provincial support for the principle of the "equality of the provinces" the veto claimed by Quebec was inevitably extended to all existing provinces. According to these witnesses, therefore, meaningful Senate reform prior to the 1987 Constitutional Accord was impossible, and it was believed that the 1987 Accord certainly could not make things worse than impossible.
23. According to these witnesses, the other positive benefits for Senate reform, brought about by the 1987 Constitutional Accord are four in number:
(2) Provincial participation in Senate nominations under the "transitional arrangements" would make the present Senate less attractive to the federal government. Under the present appointment rules the federal Cabinet is perceived to have a clear interest in maintaining the status quo. Discussion of Senate reform in the context of a larger constitutional agenda will have advantages, as Professor Meekison pointed out:
Discussion on Senate reform will not take place in a vacuum. Other subjects will also be on the agenda. l assume that governments will enter these future discussions with a view to seeking an agreement or agreements of some kind reached.
A quickly cast veto on Senate reform could lead to rejection of other proposed changes. From my experience, governments are more likely to agree on reforms when a variety of topics are discussed simultaneously. Some recognition and attention must be given to the different priorities and concerns of each government.
(3) Moreover, the new appointement procedure will likely add to the stature of the new Senators, especially if candidates for provincial nomination submit themselves to an election that each province is free to organize. In some regions, the provincial governments may come under strong public pressure to organize "Senatorial" elections. While neither level of government is bound to nominate or appoint the winner of the election, there would be strong public pressure to do so, federally as well as provincially. Whether such elections are held or not, future appointees will carry the approval of both the federal and provincial governments and can be expected to be even readier than the present Senators to flex their muscles at the expense of the House of Commons. Former Senator Eugene Forsey sees the transitional appointment procedures of the 1987 Accord as shifting power from the House of Commons to the Senate:
The transformed Senate will have all the legal powers of the present Senate, notably the power to reject, absolutely, any bill whatsoever. But it will have a political clout the present Senate cannot even dream of. Its members will take seriously their job of representing provincial and regional interests, and if that makes trouble for the federal government, or annoys the House of Commons, what of it?
(Forsey, submission p. 20)
24. The result, according to supporters of the 1987 Accord, is that the added complexities of dealing with the new "transitional" Senate will encourage the federal government to go whole hog and seek meaningful reform of the whole institution.
25. Ultimately, the federal government could precipitate long-term pressure for Senate reform simply by refusing to appoint any new Senators, as recommended by the Canadian Committee for a "Triple E" Senate:
Rather than "tinker" with the fundamentally undemocratic practice of appointing people to a legislative body, let us suspend appointments pending meaningful Senate reform. Barring the possibility of some senators dying before they reach 85 between now and January 1991, ten vacancies will occur in the Senate: 1 from Newfoundland, 3 from Nova Scotia, 2 from New Brunswick, 2 from Quebec, 1 from Ontario, 1 from Manitoba, and 1 from Alberta. In the last two decades, the vacancies in the Senate have exceeded twenty.
(Submission, pp. 23)
26. After reflecting on the various arguments raised by the testimony on this point, the Joint Committee is of the view that
(b) meaningful Senate reform must be pursued by the First Ministers on a priority basis in order to justify their claim that the temporary appointment procedure in the Meech Lake Accord will indeed be temporary;
(c) the "temporary" appointment procedure does not prevent Senate reform and, in fact, may enhance the possibilities of reform through the new options available to the provinces such as direct popular election of provincial nominees; and
(d) the veto powers now available to all provinces will assure provinces such as Alberta, who feel strongly about Senate reform, that they cannot be forced to accept a Senate reform package that does not live up to their expectations.
William F. Maton