Senate Reform in Canada

Last week the Canadian Supreme Court wisely rejected the government’s plans for Senate reform in Reference Concerning Reform of the Senate. The Harper government had proposed a number of changes, including the popular election of senators, through a simple Act of Parliament without a constitutional amendment and this, said the Court, the government could not do. The government had even contemplated abolishing the Senate altogether, and all of this was entirely inconsistent with the scheme of government enacted in the British North America Act. The Senate is an integral part of the government, the Court held, and absent a constitutional amendment it must remain an appointed and not an elective body. “Introducing a process of consultative elections for the nomination of Senators would change our Constitution’s architecture, by endowing Senators with a popular mandate which is inconsistent with the Senate’s fundamental nature and role as a complementary legislative chamber of sober second thought.”

What the Fathers of Confederation had rejected was an American Senate, with the gridlock of the separation of powers. Of course, the government must have expected this, and the Reference was little more than a bit of red meat tossed to its Alberta base, by way of diverting them from more substantive questions.

F.H. Buckley is a Foundation Professor at George Mason School of Law and the author of “The Once and Future King: The Rise of Crown Government in America” (Encounter Books, April 8, 2014).

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  1. gabe says

    Prof. Buckley:

    Please clarify your last paragraph in light of the following:

    http://www.gutenberg.org/files/29972/29972-h/29972-h.htm

    ” A far more important point, whether the second chamber should be nominated or elected, caused less debate. Macdonald opened the discussion with his usual diplomacy:

    With respect to the mode of appointments to the Upper House, some of us are in favour of the elective principle. More are in favour of appointment by the crown. I will keep my own mind open on that point as if it were a new question to me altogether. At present I am in favour of appointment by the crown. While I do not admit that the elective principle has been a failure in Canada, I think we had {79} better return to the original principle, and in the words of Governor Simcoe endeavour to make ours ‘an image and transcript of the British constitution.’

    Differing on other issues, Brown and Macdonald were at one on this. They were opposed to a second set of general elections, partly because it would draw too heavily on the organizations and funds of the parties. As an instance of the stability of Brown’s views, it should be remembered that he never, at any period, approved of an elective second chamber. The other Liberal ministers from Upper Canada, Mowat and McDougall, stood by the elective system, but the conference voted it down. The Quebec correspondence of the Globe at this time throws some light on the reasons for the decision: ‘Judging from the tone of conversation few delegates are in favour of election. The expense of contesting a division is enormous and yearly increases. The consequence is there is great difficulty in getting fit candidates, and the tendency is to seek corrupt aid from the administration of the day. There is also fear of a collision between two houses equally representing the people. It is less important to us than to the {80} French. Why should we not then let Lower Canada, which desires to place a barrier against aggression by the west, decide the question and make her defensive powers as strong as she likes? It would be no great stretch of liberality on our part to accord it to her.’ During the debates on Confederation in the Canadian Assembly, in the following year, Macdonald derided the notion that a government would ever ‘overrule the independent opinion of the Upper House by filling it with a number of its partisans and political supporters.’ This, however, is precisely what has taken place. The Senate is one of the few unsatisfactory creations of the Fathers of Confederation.”

    It would appear from comments made by the Founders of the Confederation that “cost” was a major factor and the desire to avoid somewhat raucous election cycles.
    There was also, it would appear, a concern shared by the American Founders to not have two popularly elected branches in the legislature as they could end up on a “collision course” and that the Senate would be a more sober, reflective body.

    How does this differ from the original intent of the US Senate. In fact, did not some of the provinces see the Senate as ameans of protecting their own local interests.

    Admittedly, I know next to nothing about Canadian founding (my problem) but these statements would appear to suggest an intetn other than what you advance.
    BTW: I wish we in the US had not changed our Senate “cuz’ we are a mess right now.

    take care and keep ‘em coming!
    gabe

  2. F.H. Buckley says

    Upper Canada had an elected upper house between 1858-64, and it was thought a useless expense. But Macdonald was also quite aware of the danger of deadlock, as seen in OZ in 1975.

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