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Thursday Thinkpiece: Constitutional Pariah–Reference Re Senate Reform and the Future of Parliament

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Constitutional Pariah: Reference re Senate Reform and the Future of Parliament

Author: Emmett Macfarlane
ISBN: 9780774866224
Publisher: UBC Press
Series: Landmark Cases in Canadian Law
Page Count: 198
Publication Date: April 2021
Regular Price: $27.95 (paperback) | Series subscriber price: $22.00

Excerpt: From Chapter 1 [Footnotes omitted. They can be found in the original.]

The Senate’s (Unfulfilled) Roles

At the time of Confederation, the inclusion of an upper house in the new Parliament was inevitable. As David E. Smith notes, “it would have been inconceivable not to have followed the model” of bicameralism, both for the obvious favouritism shared by most of Canada’s constitutional framers towards the British exemplar and for the basic fact of federalism. The key debates over the Senate, which absorbed much of the 1864 Quebec Conference in the lead-up to Confederation, concerned the extent of representation allotted to the smaller provinces to compensate for the intention of a representation-by-population basis for apportioning seats in the lower house. Yet while the question of regional representation tends to dominate discussions of the Senate’s origins, the constitutional framers had a number of roles in mind for the upper house. This includes the much-vaunted role of the Senate as a chamber of “sober second thought,” with the upper house intended to act as an independent check on the worst impulses of the popularly elected lower house, and especially the Cabinet. The Senate is also regarded as a defender of minority rights and a protector of private property.

This chapter examines the Senate’s evolving history through its disparate roles and its execution of them. It finds that the Senate’s performance on any of these fronts is subject to much debate and disagreement. If the Senate acts with too much verve as an independent check on the Commons or the executive, it is attacked as illegitimate. If it evinces too much deference, it is a useless rubber stamp. Whether viewed as an undemocratic thorn or a waste of resources, Canada’s constitutional pariah can never seem to win. Its defenders, meanwhile, will consistently remind us that its valued sober second thought capacity extends beyond the brute force of its legislative powers. These disagreements are at the heart of the reform debates examined in Chapter 2. In relation to the Senate’s roles, it may surprise some to learn of the sizable chasms between how we talk about the Senate’s purpose and how it has evolved in practice. The Senate has never been a particularly strong defender of regional interests, a function of the relatively weak exercise of its powers coupled with the fact that it is appointed, and has historically organized itself, on a partisan basis. Its role as a defender of minority rights emerges infrequently and pales in comparison with the role of the courts in the period since the Canadian Charter of Rights and Freedoms. And its role as a protector of property has all but vanished from contemporary discourse.

This chapter thus serves as the broad historical and institutional foundation to a primary background question faced by the Supreme Court of Canada in the 2014 Reference re Senate Reform: What is the Senate for? The questions of what the constitutional framers intended, how the Senate operates in practice, and how it has evolved with respect to its various roles all seem relevant to identifying the institution’s role. Given that the court’s landmark reference opinion centred on whether that role would be altered by certain reform proposals, and whether the provinces have an interest in those changes, the analysis in this chapter provides a basis for understanding and critically examining the court’s reasoning.

THE SENATE AS AN INDEPENDENT CHAMBER

Janet Ajzenstat writes that the theory of checks and balances as it relates to a parliamentary system “regards Cabinet ministers as potential tyrants, the ambitious leaders in the lower house as potential demagogues, and senators as potential oligarchs. When all is working as it should, when the branches are free to check each other, the system forestalls the three classic forms of despotism.” The expectation among framers was thus that the Senate would act as a fully independent body within Parliament. Most frequently quoted on this point among the framers is John A. Macdonald, in debate in the legislative assembly:

[The Senate] would be of no value whatever if it were a mere Chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill-considered legislation which may have come from that body, but which will never set itself in opposition to the deliberate and understood wishes of the people.

Similarly, George Brown noted that the desire among framers “was to render the Upper House a thoroughly independent body, one that would be in the best position to canvass dispassionately the measures of this House, and stand up for the public interest in opposition to hasty or partisan legislation.”

The composition of the Senate differs from the British House of Lords in important respects, and the most immediately obvious one to the framers was the fact that the colonies lacked an aristocratic class. The Canadian Senate, therefore, would not come to represent the upper class (at least in a narrow sense) or protect it from unruly democratic decisions of those who represent the masses, but it would nonetheless embody a “deeply rooted conservativism” as the basis for the functioning of upper houses in modern times. Thus in terms of its role, “the absence of feudal-aristocratic elements from the social environment made no difference in the expectations as to the substantive function of a second chamber.”

How could the Senate exercise this desired independence as an appointed body? Whatever influence the House of Lords may have had on the framers’ intentions surrounding the Senate, the framers were not ignorant of the electoral option. The upper house of the Province of Canada, the Legislative Council, underwent reform to hold elections for new seats in 1856. This reform was in part due to complaints about obstructionism. Yet the result was a Legislative Council emboldened by its elected status and that directly opposed legislation passed by the lower chamber (including a supply bill in 1859), raising the spectre of long-term deadlock. This experience led representatives from Canada to favour an appointed upper chamber for the Senate, including Macdonald, who had been a supporter of elective reform in 1856. In the Confederation debates, only Prince Edward Island advocated strongly for an elected Senate, while most founders opposed the proposition for fear of conflict between the two houses (although the Opposition in the Canadian legislative assembly argued that an appointive chamber was a retrograde step). Brown argued that a system of appointments would ensure the independence of the upper house, as with the House of Lords, and that it should be “responsible to no one” and “thus no threat to the operation of responsible government.” The impact of an elected upper house on responsible government remains relevant to the ongoing reform debate, and is discussed in more depth below.

Any assessment of whether the Senate has fulfilled its role as a truly independent body is complicated, for several reasons. First, although the framers clearly desired an upper house with the capacity to stifle imprudent or hasty legislation emanating from the popularly elected house – short of introducing money bills, the Senate’s formal powers are effectively equal to those of the House of Commons – they also anticipated that the Senate would never act as a legislative roadblock or in a way that would create deadlock between the two houses. This is reflected by Macdonald’s statement that the Senate will “never set itself in opposition to the deliberate and understood wishes of the people.” This “democratic character” of the Senate was not sufficient to assuage the concern of the British secretary of state for the colonies, Henry Herbert, the Earl of Carnarvon, over the risk of collision between the two houses. Lord Carnarvon “insisted that some provision should be made in the British North America Act to overcome such a contingency, should it arise.” The result was section 26 of the act, a safety valve provision permitting the addition of four or eight senators (representing equally the various regions) to overcome deadlock. Section 26 would not be used for over century, and, as discussed below, has been used only once in Canadian history.

Second, the Senate’s role in this regard, at least as represented by the degree of activity it has generated in proposed amendments to legislation, has evolved considerably over time. For example, in the period from 1867 to 1960, the Senate amended 20.4 percent of all bills coming from the House of Commons. The Senate began to demonstrate considerable deference to the lower house in the modern era. For example, from 1963 to 1974, the percentage of bills amended by the Senate fell to only 3.5. The outright veto rate of bills during these two periods also fell, from 2.4 percent from 1867 to 1960 to 1.2 percent from 1963 to 1974. During a more recent period, the Senate’s amendment rate settled a bit higher, at 8.3 percent from 1994 to 2011. This evolution in the extent of the Senate’s role and activity is reflected in existing scholarship, but it is somewhat remarkable that early studies of the Senate were every bit as interested in how often the House amended and rejected Senate bills as vice versa. The idea that the House “has been more drastic” in amending Senate legislation would likely be viewed as irrelevant to observers today. Such is the modern view of the Senate as a vestigial organ rather than an independent, active body of Parliament.

Finally, identifying whether the Senate has generally hit the sweet spot between being a vigilant, independent house exercising its powers to prevent or correct undue legislative initiatives and one that is obstructing the will of the people is hardly a science. Simple descriptive statistics about amendment rates or the exercise of the legislative veto tell only a part of the story. For one thing, many of the Senate’s amendments to bills are “technical” rather than substantive. They involve drafting corrections, changes at the request of government, or administrative improvements consistent with the purpose or objectives of the bill. One study analyzing the period from 1925 to 1963 found that 70 percent of the Senate’s amendments to legislation were technical in nature, rather than fundamental changes to bills or their purpose. This may go some way to explaining why a strong majority of Senate amendments are normally accepted by the House of Commons. The Senate can also employ an “indirect veto” by delaying legislation or returning it with amendments shortly before an expected dissolution, as it did with a 1996 bill regulating negative option billing by cable companies. Finally, an on-again, of-again exercise of “pre-study” of bills before they arrive from the House has sometimes seen the Senate propose amendments before the bills have received a final vote in the House, and the proposed Senate changes are incorporated into the Commons’ version of the legislation.

As for the rarely used veto power, a general consensus has emerged that this should be reserved for particularly egregious legislative initiatives and with a high level of justification, limited to only a few situations. One possible list of contexts under which the Senate might defeat a bill outright includes: when it is of grave detriment to one or more regions; when it violates constitutional rights; when it is of grave detriment to linguistic or other minorities; when it is of such importance that the government should seek a new mandate; or when it is so repugnant that it represents a quasi-abuse of the legislative power of Parliament.

Given evolving democratic norms, even this list might be overly liberal. For example, the idea that the Senate should ever determine when a sitting government should seek a new mandate is arguably an affront to the principle of responsible government, wherein the government must maintain the confidence of a majority of members of the elected House of Commons. The Senate is not the confidence chamber in Parliament, and arguably oversteps its proper role when it attempts to assert the power to do so (as it did during the 1980s, discussed below). In a broader sense, those who question the Senate’s democratic legitimacy on the basis of its unelected nature might consider any use of the veto normatively unacceptable.

The upper house’s exercise of amendment or veto powers is only part of the story. The Senate’s sober second thought role has been important in another respect, specifically its committee investigations and special studies. C.E.S. (Ned) Franks, for example, points to influential committee investigations on land use in 1957 that had an important impact on agricultural legislation, and on science policy in 1967. He contends that the Senate’s investigations are generally at a higher standard than similar work in the House of Commons:

Reasons for the differences included: first, many extremely able and experienced Canadians sit in the Senate and contribute to this investigative work; second, investigations by the Senate are usually nonpartisan; third, Senate investigations do not suffer from excessive exposure in the media; fourth, senators have the time and leisure to conduct diligent research and exhaustive analysis; and fifth, investigators can work on for many years, immune from the vagaries and demands of the electoral process.

The long-term perspective of the Senate is an important element of its unique contribution and sober second thought role. The work of the Standing Committee on Social Affairs, Science and Technology to conduct a two-year study of health care in 2000–02 is an important example: if “undertaken by the House of Commons, it would take up nearly half of the members’ entire term and, in this particular case, would have risked being disrupted by the fall 2000 election. Moreover, there would be considerable pressure to generate short-term results that would bolster the members’ immediate electoral chances.”

Many of the Senate’s defenders point to its committee work as the prime example of the institution’s effectiveness. Even here, however, there is evidence that this may be overstated. Andrea Lawlor and Erin Crandall report that while a committee like the Legal and Constitutional Affairs Committee acts as “a workhorse for legislative review,” even it only occasionally produces legislative change. In their study of the work of Senate committees, Lawlor and Crandall thus report that “the Senate may not be as systematic a check on the power of the House of Commons as sometimes thought.”

Partisanship and Independence

There is a lack of clarity on the extent to which partisanship negatively affects the Senate’s capacity to act with independence or as a vigilant check on executive power or poorly conceived legislation. Writing in 1926, Robert Mackay notes that the “most serious objection to the system of appointments is that it has failed to give to the members of the Senate the character of independence of party ties.” In the revised edition of his study nearly four decades later, Mackay still agrees with this sentiment but notes that a broader tradition of non-partisanship “seems to be more firmly established,” basing this on a period from 1940 to 1960 when the Senate majority was held by a different party than the government and it not once rejected a government bill. A more recent study by Jean-François Godbout presents the most comprehensive account of partisanship in the upper house. Godbout’s analysis confirms a decline in party unity, at least among Liberals, in the 1940s. However, partisan voting in the Senate has generally increased in a linear fashion over time, to the point where since the 1980s voting unity levels for the two main parties exceeded 90 percent.

Beyond voting patterns, there is qualitative evidence that the intensity of partisan behaviour in the upper chamber has ebbed and flowed over time. Indeed, Godbout notes that the Senate’s activism usually increases in periods of divided government. Personalities and leadership within the Senate are sometimes considered causal factors in these shifting tendencies. Raoul Dandurand was a long-time organizer for the Liberal Party in Quebec and a high-level adviser to Prime Ministers Wilfrid Laurier and Mackenzie King. He was appointed to the Senate in 1898, serving as Speaker of the Senate from 1905 to 1909 and as either Government Leader or Opposition Leader in the Senate from 1921 until his death in 1949. Dandurand adopted a fiercely nonpartisan attitude towards the work of the Senate, something perhaps informed by the fact that he “had never been a member of the House of Commons, and, therefore, he was not imbued with the mentality of an almost mechanical self-subordination to a parliamentary party machine.” It is perhaps no coincidence that his death correlates somewhat with the end of less partisan voting behaviour by Liberal senators at the time. According to F.A. Kunz, in Dandurand’s “image of the Upper house as a body of independent-minded elder statesmen coolly exercising judicial impartiality there was no room for a formal party machinery, which would only accentuate a spirit that ought to be extirpated by all means.”

In fact, in Dandurand’s view an ideal Senate would not even have a Government Leader, and each minister would select individual senators to pilot legislation independently through the upper chamber. Further, he believed the Senate should not sit along party lines, nor should senators attend party caucus meetings (which he personally avoided) so as to “remain away from the political atmosphere of the Commons.” These ideas presage events following Reference re Senate Reform, which saw the elimination of the government caucus in the upper chamber. Dandurand’s virtually anti-partisan view did not take complete hold in the Senate but was clearly influential during his leadership role there, as Mackay’s and Godbout’s analyses suggest. Even former prime minister Arthur Meighen, upon his own appointment to the Senate, became a convert to Dandurand’s perspective, and subsequently argued that the “Senate is worthless if it becomes merely another Commons divided upon party lines and indulging in party debates.”

Dandurand’s position on partisanship in the Senate is noteworthy as an indicator that the nature and extent of partisanship in the Senate is not a fixed or entrenched variable. In the broad context of Canadian history, his attitude is no doubt in the minority, but critics of the 2016 reform who decry the non-partisan appointments process as a departure from the Senate’s proper design overstate their case. Undoubtedly most of the framers would have assumed patronage and partisanship as a feature of appointments, but the degree of partisanship, and the lack of balance prime ministers generally exhibited in making almost all of their appointments from individuals of their own party are not part of some ordained design. As Smith writes, “the long periods of one-party rule that followed Confederation and the expansion of the national party system into the provinces of Canada” were unforeseen events that may help explain why the Senate has not performed as the framers expected. Without those intervening events, appointments to the upper house may have been more balanced and less afflicted with patronage. Regardless, there is no good reason that the appointing culture has clung to partisanship – let alone patronage – for as long as it has.

To the extent that the core role of the Senate was as an independent body capable of sober second thought, the evolution of partisan control is something that has worked against the institution’s performance on this score. This is examined further in Chapter 5. Yet it is also worth noting in the present analysis that rule changes and procedural innovations within the upper house have, according to Godbout, been “introduced with the explicit goal of transforming the Senate into a more partisan chamber.” For example, the Liberals in 1984 abandoned the use of pre-study, and in 1991 changes by the Conservative majority increased the government’s control of the legislative agenda. In Godbout’s view, “these changes contributed to altering the dynamic of debates in the upper chamber by promoting divisions between Conservative and Liberal senators.”

Even when the Senate has evinced independence from the lower house, partisanship has arguably encouraged it to cross a line into pure obstructionism rather than sober second thought. The most prominent contemporary example of this is the Liberal-dominated Senate that greeted Prime Minister Brian Mulroney’s government in 1984. Senate Opposition Leader Allan MacEachen’s “ardent partisanship” was at least partly responsible for a level of Senate obstructionism unprecedented in the modern era. Tat period saw the Senate refusing to approve a borrowing bill in 1985, playing “ping-pong” with the House over amendments to the Drug Patent Act for a full year from 1986 to 1987, and forcing an election after refusing to pass legislation for the free trade agreement with the United States in 1988. The Senate’s activism during Mulroney’s second Parliament was no less obstructionist, as it defeated a compromise bill on abortion in a tie vote, delayed an unemployment insurance bill, and attempted to block the Goods and Services Tax (GST). Only after Mulroney took the unprecedented action of employing section 26 of the Constitution Act, 1867, enlarging the Senate by eight members, was the deadlock broken and the GST bill passed.

The Mulroney period and a similar (although more mild) period of tension between a Liberal-dominated Senate and John Diefenbaker’s Progressive Conservative government imply that the problem of partisanship can create unwanted deadlock between the two houses when the government does not control the upper house. With the benefit of hindsight, some argue that “[c]lashes between the two houses were so inevitable from the start that it is difficult to believe that a politician as astute as Macdonald did not anticipate them.” The problem of appointments as an exercise of partisan patronage is one of the major sources of condemnation the institution faces, particularly when fare-ups between the two houses occur (or whenever a scandal involving the Senate surfaces).

To what extent might partisanship explain a generally deferential, less-than-fully-independent Senate? As it pertains specifically to amendments, Andrew Heard’s statistical analysis suggests that the size of the government majority in the Commons has “a far greater correlation to Senate amending activity” than the partisan mix. Some important qualifiers should be placed on this analysis, however. First, the statistical data are limited to the period from 1957 to 1988. Second, Heard’s analysis does not appear to account for the difference noted above between technical amendments and substantive amendments to legislation. Nor does it attempt to assess the relative salience of the bills at stake under different configurations – if Senate activity during the Mulroney period was not quantitatively distinct, it was surely qualitatively so. Finally, the introduction of the non-partisan appointments process by Prime Minister Justin Trudeau in 2016 appears to have led directly to a considerable spike in amendment activity. By the end of the 42nd Parliament in 2019, 33 percent of the eighty-eight government bills that received royal assent were subject to amendments by the upper house. The non-partisan nature of the appointments seems to be a prime reason for this. This is one of the primary issues discussed in more detail in Chapter 5.

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