Robert Baldwin and Louis Lafontaine led the Reform Party to power in 1848, bringing an end to the influence of appointed chambers of representatives in Canada. The principle of elected, representative government has held sway ever since. And yet, there is one group of appointed individuals whose power, though slight, remains to be dealt with: the Senate. Significantly, there was no Upper House in the colony of Canada when it merged with Nova Scotia and New Brunswick in 1867. The British North American Act (our constitution!) provided for an appointed national Senate as well as for one in each of the four new provinces. The provincial upper chambers did not not survive but the federal Senate continues to crank on. The deal that was struck at confederation foresaw that Canada would need a chamber where the concerns of the provinces could be addressed in making federal legislation. This was especially important for the smaller provinces and for culturally distinct Quebec.
The Supreme Court of Canada re-affirmed this April that changing the Senate would need the support of 7 provinces and that abolishing it would require the unanimous consent of all 10 provinces and indeed of the Senate itself. The reluctance of Canadians to change or even talk about their constitution requires some explanation. For us, it exposes the fault lines upon which our nation was founded: English vs French, First Nation vs Immigrant, and East vs West. Having founded a nation in opposition to an increasingly war-like and expansionist United States and in compensation for an increasingly indifferent United Kingdom, we sometimes struggle to say what Canada is really about.
The Supreme Court leaves three options for dealing with our scandal plagued upper house:
1) A non partisan Senate: this is the path that Justin Trudeau’s Liberal party has set us on, having kicked all of the Liberal appointed Senators out of caucus. This has some appeal in dealing with the perception of the Senate as a pasture for retired politicians. In practical terms this would be difficult to implement. First, the Supreme Court decision makes the development of a new, non-partisan selection method problematic. Second, the temptation for a beleaguered Prime Minister to address interference from a bothersome Senate with appointees loyal to his party would be ever present.
2) A provincially appointed Senate: This model, used initially in the United States and still to this day in Germany, would see Senators appointed by provincial governments. Opinion is divided on this ‘Bundesrat approach’. It gets to the essence of the federal system and would be attractive to most provinces. The United States rejected this method at the turn of the twentieth century because the State-selected senators were often corrupt and disregarded the national interest. It would mean a distinct loss of power for the federal government and would never be agreed to by the current prime minister, a man who refuses to even meet with the premiers.
3) An abolished Senate: this is the path favoured by the leader of the opposition, Tom Mulcair, whose New Democratic party has never appointed a Senator. Securing unanimity on this point would be difficult without some way to provide a voice for the provinces on national issues. Again, the smaller provinces and Quebec would have the most to lose.
Prime minister Stephen Harper’s preferred option of an elected Senate seems to be temporarily off the table, as he shows no signs of wanting to engage the premiers on this issue.
Of the three possibilities, I believe that the second is most likely. It would have to wait until after the next election and would require significant initiative by the premiers to come to a meeting of minds. A ‘House of Provinces’ would have to have significant limitations on its power – not unlike the current Senate – and would benefit from a significant outreach to Territories, Aboriginal People, Women and other groups under-represented in the House of Commons. Even if not successful, the effort would bring about a healthy reflection on what Canada is really all about.
How very un-Canadian!