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THE SENATE THAT YOU THOUGHT YOU KNEW - By the Hon. Serge Joyal, P.C., O.C. Senator


These recent assaults (led by Alberta) are essentially the product of the western provinces' frustration with the central government. This frustration was brought to a head with the National Energy Program (NEP) in 1982, the awarding in 1986 of the contract to maintain the F-18s to Montreal rather than Winnipeg and, of course, the fact that the parliamentary majority of federal governments is always concentrated in central Canada, that is, in Quebec and Ontario.

In addition, the distribution of seats in the West has remained unchanged since 1915, with the four western provinces allotted only 24 seats. This representational deficit was acknowledged in Bill C-110 (An Act respecting Constitutional Amendments, c. C-36.7, 1996). British Columbia should have 24 seats instead of 6, and the three prairie provinces should share 24 rather than 18. The problem of under representation of the West is indeed a legitimate complaint.

However, the majority of those who have expressed an opinion on the institution in the past 30 years have, for the most part, been misguided. Everyone has concocted their own homespun recipe for curing all the ills of the federation through the remedy of Senate reform. Last year, Dr. Jack Stilborn, of the Research Service of the Library of Parliament, reviewed and analyzed the 26 Senate reform proposals or projects of the past 30 years, including Mr. Ryan's beige paper, the Meech Lake proposal and the Charlottetown Accord. At the end of his analysis, he reached the following conclusion:

- All of the Senate proposals are open to the same basic criticism: "Thirty years of debate about Senate reform has not provided a fully convincing response to … the conceptual challenge of Senate reform. In particular, it remains unclear that an upper chamber is the appropriate mechanism to meet the expectations that have taken shape in the course of debate."

What these Senate reformers fail to do is rigorously define the essential character of the upper house, which is intended to complement the work and functions of the lower house to which the government remains exclusively responsible.

Thirty years of reform proposals of all sorts have not yet generated a real debate of the vital principles that constitute the foundation of our parliamentary system. The argument for an elected Senate in response to the slogan "The West Wants in", simply adds to the frustration. These reform proposals attempt to respond to regional concerns and ambitions or efforts to curtail the federal government's legislative prerogatives. They do not deal with the issues related to the very existence of the federal parliamentary system as established in 1867 and its evolution, together with the party system we know today.

It is amazing how the election of senators is portrayed as the solution to every ill. It is believed that the executive's control over the House of Commons would be reduced, the distortions of our federal electoral system would be limited, the frustrations of the West, or rather the appetite for power that its economic prosperity has fuelled, would be satisfied, and the desire of the provinces to emasculate federal prerogatives would be fulfilled if only the Senate were elected.

Despite the obvious appeal of electing the Senate, there is nothing in this reform proposal that specifically guarantees the achievement of any of its associated objectives, that are of particular concern to the West. Moreover, an elected Senate does not address the broader institutional question of the relationship between the two Chambers and the functional balance that must exist between them.

Historically, there has been a complementary dynamic between the Senate and the House of Commons. Unlike the House of Commons, the Senate is characterized by a greater stability of membership, greater expertise and independence, and a broader range of representation based on gender, language, and culture.

Yet an elected Senate would put much of this complementary relationship at risk. An elected Senate could not guarantee the expertise and independence required by the members of the upper house and more importantly, it would provide no clear definition of the functions and powers that the upper house should possess in order to fulfil its essential task of complementing the role, functions and powers of the lower house.

To conclude, as do the majority of analysts, that the legitimacy of the present Senate with respect to its composition should be the focus of any reform avoids discussion of these important issues.

This is not my claim. This argument comes from the report of the Royal Commission on the Reform of the House of Lords (the Wakeham Commission) published last January.

In fact, these 26 Senate reform proposals are dictated by fashion with each being proposed by a few authors, with other authors then adapting elements of them and adding others, creating a flow of novel ideas that are never accompanied by any in-depth discussion of the real implications of the proposed change. The example that comes to mind is the Senate becoming a "Chamber of the Federation", a sort of Bundesrat, where the provincial delegates would sit. This solution was in fashion at the end of the 1970s and the beginning of the 1980s.

As a "House of the Provinces" the main mission of the Upper House would have been to allow the provincial governments to vet all legislation passed by the House of Commons, even in areas of exclusive federal jurisdiction, and all decisions by the federal executive, including budget estimates, appointments to national institutions and agencies, and all studies on social issues or other matters that the Senate might undertake. All of these would thus become subject to the veto of the provincial governments.

In short, federal power would be under permanent trusteeship, with the upper house becoming the forum of choice for federal-provincial bargaining: "My shrimp quota for your opting out with financial compensation".

This proposed solution, borrowed from abroad, takes no account of the basic fact that each system of government is a consistent whole in which all the parts are defined in a unique balance and that rethinking its operation is intellectually more demanding than cobbling together various formulae from here and there.

A number of Senate "reformers" use the American model as an example. Here we have, they say, an effective, equal and efficient Senate. A triple "E"! But they overlook a few details:

1. The American Senate represents neither women, blacks, aboriginals, Hispanics nor the average American. It is essentially a group of white male veterans, 19% of whom have been there at least 20 years or more and whose election campaigns costing between $5 million and $19 million, and sometimes even more, are funded by large corporate interests, such as the tobacco and gun lobbies.

"Moreover, a very high proportion of incumbent senators who run for re-election are returned -- around 96% - 98%." (Professor Samuel C. Patterson, February 6, 2000)

As a model of democratic composition, one could expect a better result.

2. There is no institution more partisan or more divided along party lines than the American Senate. Do you recall last summer's Monica Lewisnky / Kenneth Starr proceedings, and President Clinton's impeachment hearings? For an institution that supposedly had the interests of the nation at heart, an excessive number of polls reflecting Americans' disgust at the pitiful spectacle were required to get the gentlemen of the moral majority to put an end to their partisan crusade.

3. If you think the American senators represent the interests of the states they come from above all else, you are mistaken. They view themselves as national legislators first and foremost. They are not there primarily to defend the taxpayers of Arkansas or Idaho; they sit in Washington for the country as a whole, not for their home state. The most influential senators have adopted causes that go well beyond the interests of their state. Have a look at those sitting on the foreign affairs committee or on the budget committee. Talk to Senator Jesse Helms about it.

4. The American system is not an à la carte menu; you cannot order what you want and leave the rest. The American Senate is totally separate from the House of Representatives and the Presidency. The republican presidential system is not cut from the same cloth as our constitutional parliamentary system. We cannot transplant one of their institutions here without taking everything. To imply that we can turn the Canadian Senate into an American Senate is like grafting the tusks of an elephant onto the head of a moose!

Is this a model we want to transplant to Canada? What would happen to the status of the member for Yellowhead (!) in the face of that of the 2, 3 or 10 senators from Alberta? His influence in the community would be reduced to the level of "big" city councillor. Representatives of the business community and institutions would look to the more senior, more influential and better known senator. The powers of one house cannot be increased without those of the other being reduced correspondingly. The power base cannot be stretched infinitely. A stint in the House of Commons makes that clear.

Parliamentary virtue, it would seem, is to be found in Germany or the United States, while the abomination of democracy -- the democratic deficit, as some put it -- is to be found only in the Senate of Canada. What exactly is meant by this?

I contend that the combination of:

1. the weakness and rarity of serious studies about the Senate;

2. the lack of interest on the part of academia in thorough comparative analyses;

3. the lack of intellectual vigour used in forming the definitive judgements passed on the institution by certain politicians and too many journalists, who seem more interested in minor scandals than in serious debate;

4. lead to:

(1) summary and incomplete judgements, sensational conclusions, repeated ad nauseam by all those raising the issue -- since they obviously do not bother with an analysis, which is far more demanding and time consuming;

(2) condemnation without appeal by all the critics of our parliamentary system, who, generally, have never been elected themselves or sat in a deliberative assembly;

(3) the reduction of democratic opinion to the electoral mechanism by the grace of which we get the governments we deserve.

I contend, however, that:

(1) the House of Commons is more controlled and dominated by the Cabinet than is the Senate; as confirmed by Professor Donald J. Savoie, in Governing from the Centre, published last year

(2) only rarely does the House of Commons hold a real debate, without which democracy is an electoral sham; "Democracy is also about discussion, about checks and balances, and about the protection of various kinds of minority rights", Professor Robert Howse in his testimony to a Senate committee on C-20 on June 8, 2000;

The House of Commons is unfortunately no longer the forum where the great issues of society are debated.

(3) the party and whip system in the House of Commons prevent any real dissent. This restraint is enforced by rules of the parties, which control the re-election of their members. Note the June 28 letter from Professor and Senator-in-waiting (!) Ted Morton to Alliance member Eric Lowther, MP of Calgary Centre during the leadership campaign of the Canadian Alliance, threatening him with reprisals at its next convention if he failed to support Mr. Day;

(4) the Standing Orders of the House have all been framed since the 1970s to allow the imposition of closure whenever the opposition stirs. You will recall the new Standing Order proposed last March at the start of debate on Bill C-20, to limit the right of members to introduce amendments to a single amendment per member! Such control over the House of Commons would reduce it to little more than a mock-parliament;

(5) the partisan, artificial, character of debates prevents issues from being thoroughly examined;

(6) the House of Commons committee system is essentially an exercise in proceeding as rapidly as possible to score political points against the opposition and to limit the time given to the witnesses;

  1. the contribution by the House standing or special committees to the study of policy or major social, cultural and economic issues is insignificant and is not a factor in the social debate;

"The work of Commons' committees in Canada is now almost as irrelevant as debate in Parliament -- more irrelevant, in fact, than most committee work in provincial legislatures or in other countries" says a new study circulated May 1 by the Parliamentary Centre, the Ottawa think tank;." (The Ottawa Citizen, May 1, 2000, page A4);

"Though MPs once consoled themselves with the belief that committees were the last refuge of relevance in their role as elected folk, the Parliamentary Centre's study shows that even this situation has eroded over the past few years

(8) the solution proposed by the new leader of the Alliance of allowing members to vote freely is impracticable in our system of responsible government; ironically, the party making the least use of free votes in the 35th and 36th Parliament was the Reform Party itself, even from the opposition bench where consequences are few. The count of votes has demonstrated this;

(9) the composition of the House of Commons as a result of the single ballot single constituency system creates distortions that are more significant in terms of the democratic deficit, which the critics of the Senate continue to overlook. There are, for example, only 3 women among the 57 Canadian Alliance members, or 5.3%;

(10) the concentration of power in the hands of the bureaucracy and the systematic recourse to delegated regulation have turned the House of Commons into a media event whose credibility continues to diminish.

Electing or simply abolishing the Senate has been touted as the obvious miracle solution to remedying this democratic deficit. There is a lot of naivety, complacency and a certain sort of intellectual abdication with respect to the formulation of reform proposals that might truly transform our parliamentary system. I contend that it would be inadequate to attempt to remedy the failings of our parliamentary system by trying to have the Senate simply mirror the House of Commons.

Without a real understanding of the principles and rules supporting our parliamentary life in its entirety, banging away at the Senate seems to me to be more like the vain kicking of a mule against the stable door than a truly critical approach to the essentials that define our democratic system.

Before the Senate is to be turned into another House of Commons, the underlying problems affecting the democratic functioning of the Commons must be resolved and the most glaring weaknesses of our system of responsible government corrected.

Is the current situation in the House of Commons what we want to reproduce in the upper house; is the democratic deficit of the Commons what we want to duplicate in the Senate so as to have done once and for all with the abomination of appointing senators in Canada or with the weakness in western representation?

Suppose I said to you that our upper house is less democratically crippled than our lower house. Would you believe me?

Of course there are delinquents in the Senate, as there are elsewhere, but this does not make the institution into a prison yard. There are also delinquents to be found in the "other place". It is curious, since a certain judgement from the Court of the Queen’s Bench of Saskatchewan in November 1999, how little noise we hear since the person making the fireworks was hoisted with his own petard!

Let us take a closer look.

1. The Senate is the only legislative house in Canada where attendance is taken at each sitting and where the public and the media have total access to the rigorously compiled figures. Neither the House of Commons nor any provincial legislature submits to such scrutiny. The true rate of absenteeism elsewhere is unknown.

2. The Senate sits on more days than any of the provincial legislative assemblies in the west. For example, last year, the Senate sat 77 days; Alberta, 64 days; Saskatchewan, 45; Manitoba, 74 and British Columbia, 70.

3. The Senate committees are acknowledged to be exemplary in their responsibility and thoroughness and their reports are an incontrovertible source in the debate of options on the fundamental issues facing our society. These are not my words; they were echoed by the Wakeham Commission on the Reform of the House of Lords.

4. The Senate is less partisan and more objective. Many of the studies done there could not be undertaken in the House of Commons, given the partisan divisions and rifts. The studies of assistance to the terminally ill and palliative care, and the decriminalization of soft drugs are two good current examples. Objective examination of these kinds of issues in the Commons is out of the question at the moment.

5. Witnesses appearing before Senate committees will tell you that their contribution is generally sought for its merit and not because it supports the partisan arguments of one or other of the members of the parties represented on the committee.

6. The manipulation of the chairmanship of the House of Commons' committees and the members' participation have no equivalent in the Senate. The committee chairs and members remain in their positions for terms that sometimes last for several Parliaments, allowing them to develop the expertise necessary to do a thorough job.

7. Continuity or institutional memory is vital to true democratic debate. Most senators commit themselves to examining one or another aspect of a particular issue, and maintain a commitment to debating it, something that officials and witnesses from the public appearing before Senate committees readily recognize.

8. The ability to master the elements of an issue underlies a degree of independent thinking essential to a real ability to draw conclusions that withstand critical analysis.

9. The present composition of the Senate is more representative of the demographic diversity of the population of Canada: women represent 33 % (compared with only 20% in the House of Commons); francophones, 26%; representatives of ethnic minorities, 13.6%; aboriginals, 5% and visible minorities, 5%.

10. The Senate debates issues that pass entirely unnoticed through the House of Commons. Last year, for instance, in the two-month debate on Bill C-40 concerning extradition, the focus was on the discretionary powers of the Minister of Justice to extradite a Canadian citizen protected by the Charter of Rights and Freedoms to face the electric chair or a lethal injection. During the 10 days of debate in the House of Commons, the term "death sentence" was not mentioned even once.

More recently, the debate on C-20, the Clarity Bill, which lasted 3 months in the Senate and less than 2 weeks in the House, was, in the House, essentially an exercise in systematic obstruction. The witnesses invited to appear before the special committee had 10 minutes to present their views on the dismantling of the country, and the members had 10 minutes to respond. This is indeed a democratic deficit. In the Senate, the testimony of the witnesses lasted, on average, for an hour and a half.

11. The whip system in the Senate is a consensual one; the arm with the stick is shorter, and the carrot is rather small. It bears very little similarity to the type of threat used by Professor Morton against Mr. Lowther, MP.

12. The Rules of the Senate are not based on a systematic recourse to closure. Time allocation is generally negotiated between the opposition and the government.

13. Yes, the Senate amends bills, even when its majority is identical to that of the House of Commons. It does so on issues affecting human rights, the status of a less favoured group and the principle of equity, which must prevail in a democratic society.

14. The Senate does not over represent banks, insurance companies, trusts, trust companies, the rich, the wealthy and financial barons. Most senators have a professional record that puts them on an equal footing with average Canadians in comparable professions.

15. The Senate is not a repository, the shelf or the retirement home for MP’s of the two major national parties. Former members of the House of Commons account for only 20% of the Senate's membership. Their knowledge of parliamentary procedure and legislative work are vital in reviewing legislation, which is one of the fundamental roles of the Senate.

All the upper houses in democratic countries have a minimum of seasoned parliamentarians among their numbers; they see this as fundamental to their legislative effectiveness. After all, the scrutiny of legislation is their primary focus. In order to serve as a counterweight to the bureaucracy on complex issues, there must be some seasoned legislators. Otherwise, they would be puppets in the hands of the administration.

You will say then, so the Senate of Canada is perfect! No, but it is not as crippled as the House of Commons. Like its British counterpart, it is better suited to keeping the executive at a respectful distance. Former Prime Minister John Major complained on July 14, 2000 of the weakness of the British House of Commons and acknowledged his responsibility for failing to make the appropriate changes to ensure the better exercise of democracy. Even in Britain, the shortcomings of the House of Commons are counterbalanced by the independent behaviour of the House of Lords. In a speech he gave on June 28, 2000, at the University of London, Lord Alexander of Weedon said:

"In the first three years of this Parliament, there were 933 divisions in the Commons. Unsurprisingly, the government won all of them with a majority which has never fallen below 40. Rarely can so much have been done by so many to so little effect. Some backbench MPs clearly wonder whether there might be a better form of exercise -- and use of their evenings -- than tramping through the division lobbies night after night. In the Lords, by contrast, the results of divisions sometimes really matter. The Government has already been defeated in the Lords 85 times this Parliament. But, because of the dominant power of the House of Commons, we effectively live, like the French under Napoleon III, under a plebiscitary rather than a parliamentary democracy. The only real sanction on government, apart from our independent and outspoken press, is the need for a government to seek re-election at any time of their own choice within the maximum term of five years. I think this makes the United Kingdom constitutionally dysfunctional."

Is this any different from the Parliament of Canada?

In a push to reform the Senate, the Legislature of Alberta adopted a Senatorial Selection Act, which provides an election process for candidates to the Senate. I do not believe in this approach as it is really little more than a gimmick.

Most importantly, it is constitutionally questionable, in my opinion, and risks being struck down by the courts as contrary to the fundamental law of our country.

Second, if senators are to be chosen on an equal basis, it is utopian to think that all provincial governments would initially agree to the passage of a similar law and that their successors would also agree to submit to it without subsequently amending it or trying to obtain an additional concession in order to maintain their commitment. Remember Meech Lake!

Furthermore, it would not resolve the real problem of the under representation of Western Canada in the Senate. It would not add one more vote, whereas the point of the exercise is precisely, according to its authors, to give a stronger voice to the West.

In addition, the proposal assumes that these "elected" senators would refuse to use the equal legislative powers that the Senate currently possesses, allowing it to pass, amend or defeat legislation as it chooses. Ironically, the effort to make the Senate more effective would actually clip its wings! Otherwise, in the short term, the Senate would find itself in a perpetual deadlock with the House of Commons.

Finally, once elected, these provincial senators would sit until age 75. The intent is to make them accountable. To whom? To themselves?

This approach can at best create a strange assembly in which partisan divisions, provincial priorities and local interests would undermine the fundamental role of the upper house, which is:

(1) to reconcile in a national forum the diversity of interests that characterize our federation;

(2) to review bills and delegated legislation;

(3) to make the executive accountable for its decisions; and

(4) to give thorough study to issues that may ultimately find a legislative initiative.

It seems to me far more appropriate to examine the condition of the whole of the parliamentary system in Canada before playing with its components.

Yes, let’s have a reform of the Senate, but not one dissociated from the broader horizon of our federal parliamentary system. It is essential to have a more prospective outlook of the real nature of our parliamentary institutions. In that context, the premise put forward by the new leader of the Canadian Alliance Party, Mr Stockwell Day, is fundamentally wrong and flawed. To sustain as he did in a speech here in Quebec City on May 18th that :  « Let’s not forget it was the provinces that created Canada and not the other way around » is legally and historically wrong, and tantamount to turning the important issue of Senate reform into a power grab by the provinces. It is absurd to state that the federal government is an emanation or has been created by the provinces. The Supreme Court of Canada in the 1981 Reference on Patriation has stated very clearly that the premises of that statement are untenable.

Certainly, with respect to the three Prairies provinces, it would seem to be the other way around : Manitoba was created by a federal Act in 1870; so too were Alberta and Saskatchewan in 1905. If one bases ideas on such a faulty vision of Canadian constitutional history, what can one hope to build that would endure the creative tensions that are at the heart of our country?

Senate reform should not be a platform for a power struggle between the federal government and the provinces. Thirty years and 26 proposals for reform of all sorts have yet to produce a consistent conceptual analysis of the operation of each of the houses, highlighting the essentially complementary role of the Senate to the lower house. Parliament is the organic expression of a delicate balance of interests and roles between the government and each of the two chambers, and one cannot change a significant element without redefining the others.

Finally, allow me to remind you what the Prime Minister of Canada said in the House of Commons last year:

"When there is a very large consensus, we might act, but at this moment, what is important is that the Senate is doing its job and doing it well."

You think that you really know the Senate? If we believed all the critics, the various authors and journalists who have given their opinion ex cathedra on the merits and relevance of the Senate of Canada, the fate of this House of Parliament would have been sealed long ago. The choice would be very simple: either we elect it or we abolish it.