Introduction
On February 1, 2013, the government of Prime Minister Stephen Harper referred a number of questions to the Supreme Court of Canada for its opinion on matters concerning Senate reform. The Court's answers to two of these questions—whether Parliament can unilaterally implement a framework for consultative elections for appointments to the Senate and whether Parliament can unilaterally set fixed terms for senators—was based in part on a conclusion reached earlier by the Court in the 1980 Upper House Reference that “it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate” (Supreme Court of Canada, 1980: 78). The Court's 2014 response stated: “Neither level of government acting alone can alter the fundamental nature and role of the institutions provided for in the Constitution” (Supreme Court of Canada, 2014: 48). In answer to the questions posed about implementing consultative elections, the Court concluded: “The implementation of consultative elections would amend the Constitution of Canada by fundamentally altering its architecture” (54). With regard to setting term limits, the Court argued: “A significant change to senatorial tenure would thus affect the Senate's fundamental nature and role. It … falls outside the scope of the unilateral federal amending procedure” (79).
Although some political scientists have argued that political institutions “seem to have been erected almost like coral reefs, without conscious design” and that their development is driven more by organizational imperatives and experience than by theory (Sait, Reference Sait1938: 16), the Court has determined that the Senate has a “fundamental nature.” But “nature,” as the ancient philosophers taught us, is not a term that can be simply defined by positive law. “Nature, however understood, is not known by nature. Nature had to be discovered” (Strauss and Cropsey, Reference Strauss and Cropsey1987: 3). The Court implied its agreement with this classical understanding by stating: “The Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement” (Supreme Court of Canada, 2014: 26).
To achieve this goal, the Court followed a process established in the 1998 Reference re: Secession of Quebec (Supreme Court of Canada, 1998) that the constitution must be understood by reference to “the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning” (Supreme Court of Canada, 2014: 25). However, such methodology was insufficient to discern the true structure of the upper house. In order to more easily detect its fundamental nature, the Court went beyond the previous Senate reference and made use of a specific classification model of bicameralism not mentioned in the 1980 case. It now defined the architecture of the Senate as a “complementary legislative body of sober second thought”—and, to emphasize the importance of this point, it repeated the term numerous times (Supreme Court of Canada, 2014: Questions 2 and 3; 52, 54, 56, 58, 59, 63, 70, 79, 88, 106). That the Senate is uniquely a noncompetitive and deferential body of sober second thought, mainly conducting a review of bills sent to it by the House of Commons, is central to the Court's disapproval of the Harper proposals.
Classification models as analytical concepts are useful, as such typologies explore power and representation dimensions of upper houses within their constitutional and political contexts. Classification models have been employed to study the Senate in a comparative way (Lijphart, Reference Lijphart, Bakvis and Chandler.1987) and have been used to explore the historical structure of Canadian bicameralism. Schneiderman has noted that the Constitution Act, 1867 was a model of the mixed constitution “which struck a harmonious balance between monarchy, aristocracy and democracy” (Reference Schneiderman2015: 29). Ajzenstat observed that “the bones of the eighteenth century Constitution can still be seen in the Canadian political system” (Reference Ajzenstat2007: 123). Kunz quotes George E. Cartier during the Confederation Debates that “the weak point in democratic institutions is the leaving of all power in the hands of the popular element … [T]here must be a power of resistance to oppose the democratic element” (Reference Kunz1965: 11). Other primary functions, in addition to the Senate's role of revising legislation, have been identified, such as representing regional concerns in the national policy process and helping to hold governments accountable (Thomas, Reference Thomas2018: 1). The Court, however, simplistically focused on the complementary model of sober second thought as its primary purpose.
This article will re-examine the Court's conclusion. I will argue that, in many fundamental ways, the present-day Senate's essential characteristics are direct continuations of pre-Confederation design principles that were taken from distinct models of bicameralism and that the Court relied too heavily on only one model to explain the Senate's nature. The Court's narrow description shifts the debate on Senate reform, which in the recent past has laid emphasis not on creating a new second house but on resolving the conflict among the models embedded in the upper chamber's essential characteristics. The article will conclude by reviewing some of the previous constitutional initiatives that aimed to bring the Senate more in tune with modern Canada and by making suggestions about how reform proposals could better succeed.
The Senate as a Complementary Legislative Body of Sober Second Thought
Various components of a complementary legislative body of sober second thought have been identified by scholars. Kunz, in his review of theories of second chambers, writes that “two functions … have historically been assigned to these bodies—the technical and the substantive functions.” The technical functions that Kunz describes as “straightening out the ‘the tangles in the legislation of the popular chamber’ … and … providing ministers an opportunity of putting into shape concessions promised there and in clarifying the drafting” (Reference Kunz1965: 3–5) are relevant to the model. Similarly, Tsebelis and Money claim that bicameralism has two dimensions: the efficient dimension, which focuses on the quality of legislation and the stability of legislative outcomes, and the political dimension, which stresses the relative balance of power between the two legislative houses (Reference Tsebelis and Money1997: 16). In nations with popularly elected lower houses, second chambers selected on a nondemocratic basis are viewed as providing “efficient, apolitical functions” (34). Norton holds that the British House of Lords is a complementary model. Its contribution is one of reflection: “[The functions of the Lords] derive from the House's seeking to complement and not challenge the work of the elected chamber. The House seeks to add value to the political process …” (Norton, Reference Norton2017: 3).
Smith provides a more detailed description of the complementary relationship between the two chambers within the Canadian context. This complementary relationship includes: longer tenure of senators compared to tenure of members of the Commons; the greater corporate memory, professional experience and perspective of senators; the contrasting career paths and size of the two houses; the symmetry of the Senate in terms of equality among the regions and the asymmetry of Canadian federalism which reconciles majoritarianism with federalism (Smith, Reference Smith2016: 14).
The Supreme Court justifies its description of the Senate as a complementary body by referencing the executive appointment process and the independent status of senators. It concludes: “The framers … deliberately chose executive appointment of Senators in order to allow the Senate to play the specific role of a complementary legislative body” (Supreme Court of Canada, 2014: 56). The second chamber was not to be “a perennial rival of the House of Commons in the legislative process.” It quotes John A. Macdonald as saying an appointed Senate would be a body “calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill-considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people” (Supreme Court of Canada, 2014: 58, emphasis added).
The Court acknowledges that the Senate has an additional role, which is its regional function. It notes: “Each region was provided equal representation in the Senate irrespective of population. This was intended to assure the regions that their voices would continue to be heard in the legislative process even though they might become minorities within the overall population of Canada” (Supreme Court of Canada, 2014: 15). However, this role is downplayed. The Court makes no citation in paragraph 15 of section 22, which embodies the principle that despite executive appointment by the central government, members belonging to the Senate are representatives of provinces, nor does it mention section 23(5), which specifies that senators are to be resident in the province for which they are appointed.
There is also no reference made to the fact that the provincial delegates attending the 1864 Quebec City conference focused first not on the Senate's powers or how senators were to be selected but on the chamber's territorial makeup and function. Nearly 6 of the 14 days of the conference were devoted to how the second chamber was to be constituted (Mackay, Reference Mackay1963: 37), far more time than was spent on the design of the Commons. The distribution of Senate seats was so hotly debated that a newspaperman, Edward Whelan, “feared the collapse of the conference was imminent” (quoted in Moore, Reference Moore2015: 89). After a number of days of negotiation, agreement was reached on the equality of seats for each region. The adoption of a territorial component for the upper house was a defining departure from the House of Lords, rendering simplified comparisons between the two chambers misleading. What impact consultative elections and fixed-term appointments would have had on improving the regional role of senators was not explored by the Court.
Since the Senate was found to be a complementary legislative body of sober second thought, it appears that the Court assumes that its regional function will not be a substantive or political one but will be restricted to performing efficient, apolitical functions. This was not George Brown's view. In his speech during the Confederation Debates that the Court references in paragraph 15, Brown says:
We recognize, to a certain extent, a diversity of interests; and it was quite natural that the protection of those interests by equality in the Upper Chamber, should be demanded by the less numerous provinces. Honorable gentlemen may say that it will erect a barrier in the Upper House against the just influence that Upper Canada will exercise, by her numbers, in the Lower House, over the general legislation of the country. That may be true, to a certain extent, but honorable gentlemen will bear in mind that that barrier, be it more or less, will not affect money bills. (Parliamentary Debates, 1865: 88)
Outside of supply matters, Brown seems to view the Senate's regional function as one that could pose serious challenges to the Commons.
There is further evidence that the Founding Fathers viewed the Senate's legislative function as potentially conflicting with the lower house. Although Macdonald referred to the Senate as having “the sober second thought in legislation” (Parliamentary Debates, 1865: 35), his pronouncements were almost Janus-like. He admitted that the Senate had the right “when it thought proper … of opposing or amending or postponing the legislation of the Lower House.” The new Senate was to be “an independent House, having a free action of its own” and was to function as “the controlling and regulating, but not the initiating branch” (35–36).
The Court quickly passes over the powers of the Senate and ignores the limited swamping provisions of section 26 that were added in London in 1866. Given the senators' appointed status, which would discourage them from overstepping their role, the Court writes: “The framers did not deem it necessary to textually specify how the powers of the Senate relate to those of the House of Commons or how to resolve a deadlock between the two chambers. Indeed on its face the Constitution Act, 1867 grants as much legislative power to the Senate as the House of Commons, with the exception that the House of Commons has the exclusive power to originate appropriation and tax bills (s. 53)” (Supreme Court of Canada, 2014: 59).
The Court omits specific reference to section 91, yet this article gives Canadian bicameralism its flesh and bones. The section's significance is twofold. First, it states that the Senate has as much constitutional power as the Commons in the making of laws. Second, it points the way to how the Senate is to perform its work. A bill to become law must be passed by both houses in identical form. Redundancy, a key feature of bicameralism (Patterson and Mughan, Reference Patterson and Mughan1999: 12–16), is the upper house's principle method of functioning. The legislative work of the House of Commons needs to be duplicated in the Senate. If that review is not repeated, the Senate is not performing its duties. There is no textual reading that the Senate must defer to the lower house. As Wilfrid Laurier told the House of Commons: “But if under our constitution in Canada there was a deadlock between the House of Commons and the Senate, nothing sort of revolution could solve the difficulty. For instance if the Senate were to oppose the Supply Bill, no constitutional remedy within our grasp could bring the Senate to a different view” (Reference Laurier1908: 1571–72).
Clearly, the Senate's “fundamental nature” is a complex one, and as a legislature, it is pas comme les autres. Noting that its outstanding characteristic is not what it does but that it has survived, Franks wrote: “The Canadian Senate is a frustrating puzzle” (Reference Franks1987: 186). The single phrase “a complementary legislative body of sober second thought” does not capture accurately its basic character. It would have been more helpful if the Court had explored better the dynamics of pre-Confederation Canada in search of additional models to describe the Senate's design. If we are to understand its essential nature, Canadian bicameralism must be placed within a wider historical context. In the next section, the political ideas of the important actors of bicameralism in Canada will be reviewed in terms of what they felt an upper house should look like. These actors may have been driven by other interests and may have had reasons other than the ones they stated; such focus, however, does not fall within the purpose of this article.
Historical Models of Canadian Bicameralism
Four distinct models of bicameralism can be identified as relevant in explaining the present-day Senate's institutional architecture: (i) the mixed-government model, which is based on the premise that the major interests of society take part jointly in government and that three distinct branches—king, lords and commons—balance each other to ensure that one is not the master of any other (Vile, Reference Vile1998); (ii) the popular-sovereignty model, wherein the members of the upper house are selected by “the people” (Tsebelis and Money, Reference Tsebelis and Money1997: 27); (iii) the territorial model, which encompasses representation of citizens or subnational governments or assemblies and, in theory, assists in constraining a central government's powers (Russell, Reference Russell2001); and (iv) the complementary model of sober second thought described above.
The mixed-government model
A colonial model of mixed government was introduced to Upper and Lower Canada with the passage of the Constitutional Act, 1791. With respect to the legal powers of these provincial parliaments, the model fell far short of that found at Westminster, as the local legislatures were constitutionally prevented from providing an effective legislative check on the executive. The lieutenant governor could, on his own, withhold royal assent from any bill or reserve it for the Colonial Office's review. Even after royal assent was signified, London could disallow a bill within two years. Dunham writes that in Upper Canada, “the elected assembly had not the slightest control over the local executive … In Lower Canada, under similar conditions, the situation was even worse” (Reference Dunham1963: 45).
With respect to composition, the stated purpose of the 1791 act was to make the Canadian upper houses “aristocratic” and equal to the “democratic” lower ones. While seats in the upper house could be held for life, hereditary titles could be bestowed that would enable a son to inherit his father's writ of summons. Prime Minister William Pitt the Younger told the Commons on April 8: “An aristocratical principle being one part of our mixed government, he thought it proper that there should be such a council in Canada as was provided by the bill and which might answer to that part of the British constitution which composed the other house of parliament” (United Kingdom, Hansard Parliamentary Debates, 1790–1791).
Lord Grenville, the act's sponsor, presented a more de facto understanding of how the upper houses were designed to function. As he told the Lords on May 30, the government “did not mean to give Canada exactly the same constitution … That was impossible; but their great object had been to adhere as nearly as possible to the purity of the principles of the English constitution in every part of the bill” (United Kingdom, Hansard Parliamentary Debates, 1790–1791). His main concern was to correct the perceived inadequacies of the pre-Revolution American councils, in which there was “the want of an intermediate Power, to operate as a check, both on the misconduct of the Governors, and on the democratic spirit, which prevailed in the Assemblies” (Mackay, Reference Mackay1963: 17).
The British ministry must have realized that exporting the mixed- government model would prove difficult. Nova Scotia's miniature House of Lords had never been popular (Beck, Reference Beck1957). The Colonial Office had been told by Sir Guy Carleton that a hereditary, class-based upper house was not going to work. Carleton wrote that “the fluctuating state of Prosperity would expose all hereditary honours to fall into disregard” (Kennedy, Reference Kennedy1930). Even at Westminster, the mixed- government model was weakening. The Parliament of 1780–84 had witnessed the unprecedented resignation of the ministry of Lord North as a result of a perceived loss of confidence in the House of Commons, the resignation of the Shelburne ministry due to defeats in the Commons on government measures and the firing of the Fox-North coalition for its failure to carry a government bill in the House of Lords (O'Brien, Reference O'Brien1984). The Edinburgh Review wrote in 1807 that “the balance of the Constitution now exists in a great degree in the House of Commons and that assembly possessed nearly the whole legislative authority” (Vile, Reference Vile1998: 238n). The subsequent failure of the model in the Canadas could not have come as a surprise.
Carleton's advice was to establish a Council with nominated members only and “to appoint the number during life, good behaviour and residence in the provinces.” The councillors “should be selected among the men of property, where talents, integrity and a firm attachment to the Unity of the Empire may be found” (Kennedy, Reference Kennedy1930: 188). Unfortunately, he failed to emphasize that councillors also needed to exhibit some degree of independence. The historical consensus is that upper houses failed in the old colonial system because they were too close to the Crown (Craig, Reference Craig1963: 58–59; Dunham, Reference Dunham1963: 32).
In both the Canadas, councillors holding writs of summons saw themselves as representing the imperial connection. They viewed the lower house not so much as representing the popular will, with all its dangers, but—at least when under the control of les Patriotes or the reformers—speaking for non-British republican influences. Playing an independent role would jeopardize British rule. With the outbreak of rebellions in 1837–38, it was clear that the colonial mixed-government model had contributed to instability and needed to be reformed.
The first complementary model of sober second thought
As dissatisfaction with the mixed-government model grew, reform opinion, particularly in Upper Canada, shifted from giving the Council greater independence to establishing a new model whereby a ministry, to remain in power, needed only the confidence of the elected assembly. In accordance with this new convention, the upper house would become nonthreatening. Its composition would be determined by the political leaders controlling a majority in the Assembly, and its role would be confined to refining lower house legislation. While its legal powers would remain, the conventions of Parliament would be altered.
The one who best articulated the new theory was Robert Baldwin, whose ideas came to him from his father, Dr. William Warren Baldwin (Careless, Reference Careless1980: 91). In an 1836 letter to the colonial secretary, Lord Glenelg, Robert Baldwin proclaimed that responsible government was already a central part of the British constitution and that he simply wanted it transplanted. His desire was that political machinery in government “work harmoniously within itself, without collision between any of its great wheels.” The Executive Council would rely on the confidence of “the most powerful Party in Parliament.”
Believing that “the institutions of every Colony ought as nearly as possible to correspond with those of the Mother Country,” Baldwin opposed abolishing the Council and felt it still had an important role to play. He told Glenelg that “it may in addition be urged that a second chamber of some kind has, at least in modern constitutional legislation, been deemed essential to good Government” (Forbes, Reference Forbes1985: 26–33).
Lord Durham, who had been sent by the Melbourne ministry to review the unrest in the Canadas, concluded that a new bicameral arrangement was called for. He admitted that attempts to replicate the House of Lords in Canada were a failure. While endorsing the implementation of responsible government, he also recommended that the Council's constitution be revised to allow it to act “as a useful check on the popular branch of the legislature.” Durham feared that if responsible government was adopted, the reformers were determined to ensure that the nominated upper house would become subordinate to the lower one. The reformers, he wrote, “rightly judged that, if the higher offices and the Executive Council were always held by those who could commend a majority in the Assembly, the constitution of the Legislative Council was a matter of very little moment, inasmuch as the advisers of the Governor could always take care that its composition should be modified so as to suit their own purposes” (Craig, Reference Craig1963: 81, 170).
Contrary to Durham's recommendation, the Act of Union retained many features of the previous Council's basic design, including the provision of unlimited numbers. When responsible government was finally accepted by the Colonial Office, swamping became a crucial power. It was used by Lafontaine-Baldwin to secure the passage of their legislative programme, including the controversial Rebellion Losses Bill for Lower Canada. While the number of councillors named between 1842 and 1847 averaged just over 3 a year, with both conservatives and reformers represented, between 1848 and 1849, 12 additional councillors were appointed, all supporting the government.
The new arrangement did not sit well with certain council members. On April 12, 1849, a motion was moved that the present constitution of the Council was “defective”:
That from the number of Members of this House, not being limited, and from the power of appointment of Members being vested virtually in the Members of the Executive Council, most of them leaders of the majority in the Legislative Assembly, who have lately used such power to the extent of acquiring the power of this House—there is no longer in this House the check upon undue or oppressive legislation, which there ought to be for the public liberty and welfare. (Legislative Council Journals, 1849: 167)
In the aftermath of the Montreal riots and the burning of the Parliament buildings, the Legislative Council lost much of its credibility (Mackay, Reference Mackay1963: 29). Once again, calls were made for a new bicameral arrangement.
The popular-sovereignty model
When Baldwin went to London to press the Colonial Office on the need for responsible government, he met with Arthur Roebuck, the member of Parliament who had grown up in Canada and who had advised him that “making the Legislative Council elective ought to be the great object of Canadian Politicians” (Careless, Reference Careless1980: 109–110). Not surprisingly, Baldwin rejected that advice on the grounds that “making the Legislative Council elective might convert that body into an additional engine of hostility against the executive Government” (Forbes, Reference Forbes1985: 28–29). Throughout his political career, Baldwin opposed having the Council elected. As George Brown would later state: “So long as Mr. Robert Baldwin remained in public life, the thing [electing the upper house] could not be done; but when he left the deed was consummated” (Parliamentary Debates, 1865: 92).
There was outrage in some quarters over how Council had been treated by the Lafontaine-Baldwin ministry. At the Second Convention of the Delegates of the British American League, a Mr. Dixon “contented that there had never been a greater specimen of pure democracy manifested in this country by the packing of the Legislative Council. (Loud cheers.) The Legislative Council is made subservient to the party in power; it was a farce to call that the British Constitution, that equally and well balanced constitution, upon which we have so justly prided ourselves” (Minutes of the Proceedings of the Second Convention, [1849] 2018: xxxi).
Public opinion seemed in favour of restoring the Council's role of acting independently while updating the mixed-government model's premises. In 1853 the Reform Hincks-Morin government asked the British Parliament to amend the Act of Union to make the Council elected. The British government preferred instead that the province revise the constitutional framework itself and passed an enabling act. In 1854 the Conservative MacNab-Drummond administration introduced legislation to popularly elect the Council. The minister introducing the bill, Joseph Cauchon, stated on March 27, 1855, that the change involved “a radical alteration in the system of government. The necessity of this measure was fully proved by the expression of public opinion. He had himself been opposed to the principle of election as applied to the Legislative Council. But the unmistakable expression of public opinion, the almost unanimous assent of the people of the country, had convinced him that change was absolutely necessary” (Legislative Assembly Debates, 1855: 2469).
The act amending the constitution of the Legislative Council was given royal assent on June 24, 1856. No provision was made for dissolution if there was a deadlock between the two houses. Councillors would serve eight-year terms. Ultimately, once the appointed members who had been “grandfathered” vacated their seats, there would be 48 members elected from single-member constituencies: 24 from Canada West (Upper Canada) and 24 from Canada East (Lower Canada). One fourth would retire every two years. For the first time, a real property qualification of 2,000 pounds was added.
Many of those supporting an elective Council, including Cauchon, Francis Hincks and John Rolph, did not view the new upper chamber as a threat to the stability of Parliament. Its role would be reactive and limited to constraining the executive and the assembly against “hasty” legislation. This was also the view of the governor general at the time, Edmund Head. In a lengthy dispatch to the colonial secretary, Head stated that he agreed with the basic purpose of bicameralism, which was “to secure full and fair discussion for every legislative measure and to argue against haste.” He believed, however, that an appointed chamber would not achieve this objective. It was better for debate to be “conducted by men who feel that they have in their hands the power of rejection, when they disapprove, and who are conscious of holding a position in the Community such as will bear them out in temporary opposition at least, to the apparent wishes of the people themselves. On any other terms it is little better than the consideration of a measure by a debating Society or Club” (Legislative Council Journals, 1857: 46).
George Brown feared that an elected chamber would never be satisfied with being a “Court of Review” and would become “an active political engine” (McNairn, Reference McNairn2000: 322). Although the popular-sovereignty model was in place only a few years, making it difficult to draw firm conclusions, there is some evidence that with no provisions for defining the norms of parliamentary governance, Brown was right. In 1858, shortly after the Brown-Dorion ministry was sworn in, the Council approved a motion “That this House … beg to express their entire dissatisfaction therewith and their want of confidence in a Government which is not prepared to enunciate a policy upon the various questions which the Members thereof while in opposition agitated with so much zeal” (Legislative Council Journals, 1858: 428–429). Brown, in his unsuccessful attempt to persuade the governor general to grant a dissolution of Parliament, cited as a reason for doing so the direct motions of nonconfidence “on the part of both Houses” (440). On the other hand, the elective principle is seen as having little impact on the way the provincial Parliament operated. Grittner writes: “It had not rebalanced the constitution as promised; it had not waged war for elite interests; and it had not undercut responsible government” (Reference Grittner2015: 321).
The territorial model
The new elective model of the Province of Canada's upper chamber included a provision that the Council would be based on territorial equality, making it unusual in that, over time, there would be a regional equality of seats in both the upper and lower houses. With the fusion of the popular-sovereignty and territorial models, a new constitutional purpose was given to the upper house, which would not be limited to simply reflection of measures brought up from the Assembly. While not displacing the convention of responsible government, which held that primary political power remained centred in cabinet, the province's territorial model became another shield for regional protection and, for the majority of Lower Canada, the indirect protection of nationality. The new design anticipated the formula for seat distribution and role for the upper house after Confederation. It is doubtful if there would have been any agreement for an elected chamber if it had not included the demand for equal seats for the two sections, foreshadowing that any substantial upper house reform must be a matter of compromise between the regional partners.
The popular-sovereignty/territorial model was short-lived. Commenting on the 1864 Quebec City Conference discussions on creating a new federation of British North American colonies, New Brunswick Lieutenant Governor A. H. Gordon wrote: “With hardly an exception the elective principle as applied to the Legislative Council was decidedly condemned” (Browne, Reference Browne1969: 45). During the Confederation Debates, concerns were expressed about an elected upper house jeopardizing responsible government (Ajzenstat et al., Reference Ajzenstat, Romney, Gentles and Gairdner2003: 77). Smith has noted the criticisms levelled at the Central Canadian elected Council: the geographically large constituencies, the cost for candidates and the difficulty for parties in attracting candidates (Reference Smith2003: 79). Grittner writes that the large property qualification “had drastically limited the pool of potential Councillors. While some constituencies held spirited elections, by 1864, a full two-thirds of Council seats went uncontested” (Reference Grittner2015: 319). Brown vented his opposition to an elected upper house: “I voted, almost alone, against the change when the Council was made elective but I have lived to see a vast majority of those who did the deed wish it has not been done” (Parliamentary Debates, 1865: 89–90).
Not all concurred with this view. Most of the elected legislative councillors argued against returning to a nominated second chamber. They felt it was a breach of trust that took power out of the hands of the people. One elected councillor (Mr. Christie) felt election “has worked well so far. All the fears which were entertained in reference to it have been groundless, and I believe it would continue to work well” (Parliamentary Debates, 1865: 220). Another elected member (Mr. Letellier de St. Juste) said that nomination would be “a backwards step” and the Council would no longer be “a counterpose between the Executive and the Lower House” (186). With the coming of Confederation, the popular-sovereignty model for the national Parliament was abandoned after a brief ten-year experience. The territorial model continued, although considerably altered.
The Senate of Canada—A Hybrid Model
By 1865, all previous typologies had collapsed, revealing the difficulty that singular models of bicameralism experienced in pre-Confederation Canada. The colonial mixed-government model, whose primary role was to show allegiance to the imperial government, ended in the aftermath of the rebellions of 1837–38. The Baldwin-inspired complementary model, which rendered the upper house subservient to the lower one, became unpopular. The elective second chamber with territorial equality also fell out of favour. In the effort to construct a new upper house within a new federal state, a pan-Canadian typology emerged that, according to the Supreme Court, “has remained largely unchanged since its creation” (Supreme Court of Canada, 2014: 20). The Senate's essential “nature,” a hybrid constitutional and political model with three competing principles—territorial, mixed government and complementary—took form without precise definition as to model boundaries and no specification as to which was primary.
Securing a strong territorial model within the Senate's design, one which would go beyond performing technical, apolitical functions, was uppermost in the minds of the Founding Fathers from Quebec and the Maritimes. Sir Étienne-Paschal Taché believed that each region was given equal members “so as to secure to each province its rights, its privileges, and its liberties” (Parliamentary Debates, 1865: 234). Alexander Galt said: “To the Legislative Council all the Provinces look for protection under the Federal principle” (Browne, 1969: 211). Although there were a number of reasons why Quebec and the Maritime delegates accepted Confederation, including a railway agreement, the settlement of property and liabilities, and the division of legislative powers (Creighton, Reference Creighton1964: 181, 396), the promise of equal regional representation in the upper house was also important. In a 2017 policy statement on Quebec-Canada relations, the Quebec government wrote: “In exchange for representation based on population in the House of Commons, Québec and the Maritime provinces obtained equal representation of the regions in the Senate. This guaranteed them substantial representation within federal institutions and ensured that the Senate served as a counterweight to the Lower House” (Quebec, 2017: 119).
Provincial governments have jealously guarded their interests in the Senate's architecture, particularly its power and representative dimensions. John Turner wrote that during the Dominion-Provincial Conference in January 1950, the provinces vigorously objected that they should have been consulted before the passage of the British North America (BNA) Act (No. 2), 1949, giving Parliament the exclusive right to amend the constitution in relation to the Senate, “and this representation was made so forcibly that Prime Minister St. Laurent gave definite undertakings that the application of the [act] would be held in abeyance pending the production by the provinces of a better method of amending the constitution” (Turner, Reference Turner and Clark.1961: 79). The Senate's federal function cannot be dismissed so easily, as Kunz has done, as “one of the most enduring myths of political demagogy in Canadian history” (Reference Kunz1965: 319).
As for the second component of the hybrid model, there was a consensus that the older model of mixed government be retained and made more secure. Despite the acceptance of the responsible government convention, the co-equal legislative power arrangement first enacted in 1791 was repeated. Sensitive to the public backlash in Central Canada to Lafontaine-Baldwin's attempt to change the “balanced constitution,” there was an agreement to put an end to swamping. Macdonald's resolution “that the members of the Legislative Council shall be appointed by the crown under the great seal of the General Government and shall hold office during life” was adopted, despite the opposition of several Prince Edward Island delegates who preferred election. Taché looked upon the Confederation Resolutions “not as the act of the Government of Canada … but as the mixed work of all the provinces in the form, as it were, of a treaty” (Parliamentary Debates, 1865: 240). The mixed-government model was embedded into the British North American Act, 1867, a statute of the imperial Parliament.
A majority of the delegates participating in the 1866 London Conference resisted attempts to implement a more effective deadlock-breaking mechanism. They understood that altering the provisions of the Quebec Resolutions, which had purposely omitted any safety valve, was, in the words of Mr. McCully, “now touching the very life of the whole scheme. If we err, the whole scheme will come down some time.” Mr. Archibald argued: “The upper house may disagree with the House of Commons. Its value will be that of occasional obstruction.” Mr. Langevin agreed: “If you give power to swamp the Legislative Council, then you destroy its utility” (Browne, Reference Browne1969: 212).
Lord Carnarvon, then secretary of state for the Colonies, eventually succeeded in pressuring the Founding Fathers to accept a fairly weak swamping mechanism in the form of sections 26, 27 and 28, which provided for the appointment of up to eight additional senators. However, as Carnarvon told the Commons: “I am free to confess that I could have wished that the margin had been broader” (Dunsmuir, Reference Dunsmuir1990). The failure to enact a more Carnarvon-inspired safety valve may have impeded future attempts to modernize and democratize Canada's second chamber, as governments would have been given greater power to override absolute Senate vetoes on joint resolutions to the British Parliament on proposed amendments dealing with its reform.
Yet the Founding Fathers, as fitting the realpolitik leaders they were, were not going to let the old mixed-government model stand in the way of political power. The third model of Canadian bicameralism—the complementary one of sober second thought—also had to be crafted into the Senate's architecture. Macdonald set out to ensure that the Senate “will never set itself in opposition against the deliberate and understood wishes of the people.”
Not all accepted Macdonald's (and Brown's) seemingly innocent characterization that the Senate was going to act “independently.” One member of the Legislative Council (Mr. Sanborn) admitted “you will have at [the Senate's] very first meeting a ‘party character’” (Parliamentary Debates, 1865: 225). Subsequent political leaders understood the significance of the constitution's preamble: that there is fundamental separation of powers, in which, in the words of Justice Ian Binnie, “each of the branches of the State is vouchsafed a measure of autonomy from the others” (Fox-Decent, Reference Fox-Decent2007: 28). Since the colonial model of mixed government was never completely abolished, the Senate would always pose a threat to those holding office. Prevented constitutionally from swamping, all prime ministers have turned to a form of stacking instead. Levy observed: “The fear of defeat or obstruction has been the main reason successive governments have worried about the partisan composition of the Upper House and preferred to fill it with persons who could be counted upon to support it” (Special Senate Committee on Modernization Proceedings, Reference Levy2017).
As Canada's modern governmental and administrative processes grew, the importance of the complementary role became more and more recognized. In 1965 Kunz wrote:
With the advance of the idea of government by experts, and in the same proportion as the House of Commons became less and less a “checking” and “choosing” body and more and more a debating and educating body, there appeared added reasons for maintaining, within the framework of Parliament, an assembly capable of devoting attention to the less exciting, yet no means negligible aspects of legislation that was dealt with mainly from a political and controversial angle in another place.” (Reference Kunz1965: 5)
The 2015 announcement that the Justin Trudeau government would end the partisan nature of the Senate and create a merit-based process to advise the Prime Minster on Senate appointments revealed the government's desire that the Senate should act as a singular complementary chamber of sober second thought. Stéphane Dion applauded the actions of Mr. Trudeau in wanting to appoint senators “of exceptional competence … and full understanding of the role of a chamber of sober second thought: proposing improvement to legislation without disputing or usurping the legitimate lead role of the elected House of Commons in a democracy” (Reference Dion2015: 2–3). In 2018, the government representative in the Senate published a discussion paper suggesting that the Senate's complementary role was rooted in the appointive principle and advocating that senators exhibit self-restraint “on confidence, budgetary and fiscal matters” and show “democratic deference to the Government's election platform” (Harder, Reference Harder2018: 5).
Conclusion: Alternative Avenues for Senate Reform
The Supreme Court was emphatic that its findings were “tied to the specific questions that were put before the Court” and that the desirability of changes to the Senate “is not a question for the Court; it is an issue for Canadians and their legislatures” (Supreme Court of Canada, 2014: 4). However, its views as to the Senate's essential nature—that it is a complementary model of sober second thought—alters the debate on Senate reform. One should recall that the central thesis of the United Kingdom Wakeham Royal Commission on reforming the House of Lords was that “the more successful second chambers are those which best fit with the history, traditions and political culture of the country concerned” (United Kingdom, 2000: 11). Assuming the validity of the Wakeham thesis, if the conclusion of Canada's highest court is that the essential nature of Canadian bicameralism is confined to a single model, then all reforms which fall outside of this could be regarded as not fitting with the “history, traditions and political culture” of Canada and consequently may be less successful.
Mackay began his 1926 study of the Senate with the words “The Problem” (Reference Mackay1963: 9). The “problem” that Mackay identifies relates to the Senate's hybrid design and the need to reform that architecture to bring it more in tune with modern Canada. In order to better define the interaction among these bicameral models and improve the Senate's effectiveness, many past reform proposals have aimed not at creating an entirely “new” upper house but at modernizing its multipurpose function. For example, the Pierre Trudeau government's 1978–79 Bill C-60 recommended strengthening the complementary model with a suspensive veto of 120 days for ordinary legislation, while at the same time proposing changes to the territorial model by having half the senators chosen by provincial assemblies and half chosen by Parliament and by renaming the Senate “The House of the Federation.”
Other studies proposed returning to the historical fourth model of Canadian bicameralism—the popular-sovereignty model—with varied objectives. For example, both the 1984 Molgat-Cosgrove Joint Committee and the 1985 Macdonald Commission recommended that senators be elected, in order to improve their role as regional representatives. Such proposals also advocated suspensive vetoes, thereby strengthening the complementary role. The 1985 Alberta Select Committee also proposed election, but with the goal of reinforcing the mixed-government model. While recommending a 180-day suspensive veto over constitutional amendments and a 90-day suspensive veto over money or taxation bills, it proposed the Senate have the power to veto any bill except a supply bill and the power to ratify nonmilitary treaties.
The 1992 Charlottetown Accord attempted to modernize all the models within the Senate's design. It strengthened the territorial component by recommending that seats be distributed on the basis of provincial equality. The mixed-government model, although weakened, would remain, in that the Senate would henceforth be influential over some types of legislation, particularly bills affecting the French language or culture and tax policy changes related to natural resources. As well, it would be given new powers to ratify key appointments made by the federal government. The complementary model would be better defined, as revenue and expenditure bills would be subject to a 30-day suspensive veto. If a bill was defeated or amended by the Senate within this period, it could be repassed by a simple majority in the House of Commons. The first ministers also revitalized the fourth model of the Canadian bicameral family by proposing that senators be elected either directly by the people or by the provincial legislatures (Stilborn, Reference Stilborn and Joyal.2003).
It may be that, at the end of the day, Canadians will abandon the problematic components of the Senate's design and constitutionally render it a single-purpose chamber, namely a complementary one of sober second thought. It is possible that such a development may ultimately lead to its abolition once political leaders grow tired of it or find it too costly.
To improve the chances of successful Senate reform, proposals should follow the pre-Confederation examples and be submitted for discussion with regional partners, even if other matters are raised. Hopefully such talks will take place not during periods of federal-provincial crisis but during a period of relative normalcy and not be subject to self-imposed deadlines. The proposals, particularly those developed by provincial governments after public consultation, should be systematic and examine how the present models of the Senate's hybrid structure can be modernized, why previous recommendations for reform came up short and what impact such changes will have on other government institutions. Not surprisingly, any finalized redesigned second chamber will be the outcome of negotiation and compromise, which has characterized so much of Canadian politics.
Author ORCIDs
Gary William O'Brien, 0000-0001-6805-8549
