The Next Big Fix: How to Proceed on Senate Reform

A Policy Paper prepared by the Rahim Sajan Nomination Campaign Prepared on August 23, 2012

Campaign Manager: Policy Team:

Alex McBrien Zain Jinnah (Policy Chair) Fazilah Shariff Curtis McKinney William Genthron Russell Scantlebury

Policy Advisor:

How did we get here?

An Appointed and Unelected Senate To understand why Canada has an unelected Senate, Canadians need to understand their history. In 1840, the Act of Union merged two Crown Colonies: Upper Canada and Lower Canada. The new colony was called the Province of Canada and it had a single legislature. For the purposes of this discussion, one of the most significant events was the creation of The Legislative Council of the Province of Canada. The Legislative Council was their equivalent of our Senate. When it was created, its 24 members were appointed. However, by 1856, that would change. According to Christopher Moore, in his book 1867: How the Fathers Made a Deal, it was noted that an odd alliance of conservatives and Clear Grits fought for an elected upper House. It was odd because both parties wanted different things. The Clear Grits felt that elections led to more accountability. Given that the Legislative Council stopped many reforms, the Clear Grits argued for an elected upper house. The Conservatives, on the other hand, wanted to limit the role of the lower House. What they both learned was a simple lesson: elections lead to more accountability, to more legitimacy and to more power. From, then on, the newly elected Legislative Council was able to hold up even more legislation. All of the Fathers of Confederation knew this story. Therefore, by 1864, when the Fathers of Confederation sat down to negotiate their deal, they had one goal: Do not recreate the Legislative Council of the Province of Canada. In 1865, when the final deals were being made, the Fathers of Confederation had three examples to choose from: there was the effective Unelected Senates of the United States and the UK and the Elected Mess that was the Legislative Council of the Province of Canada. For a variety of reasons, they decided to use the British Example. Therefore, we have appointed Senators.

A Senate where Alberta has fewer seats than New Brunswick and Nova Scotia Our Senate was never intended to protect provincial rights. Provinces were protected by Section 92 and other parts of the Constitution Act, 1867. The Provinces were protected by Judicial Council of the Privy Council (JCPC) and the Judicial System. John A. MacDonald, as noted by the Supreme Court in 1980, explained some of the reasons for the Senate. He noted that in order to protect local interests and to prevent sectional jealousies, it was found requisite that the three great divisions into which British North America is separated, should be represented in the Upper House on the principle of equality. There are three great sections, having different interests, in this proposed Confederation To the Upper House is to be confided the protection of sectional interests: therefore is it that the three great divisions are there equally represented for the purpose of defending such interests against the combinations of majorities in the Assembly. Put differently, equality was not a provincial issue. In their eyes, it was a sectional or in our words a regional issue. When the deal was negotiated in 1865, five colonies interests were considered. The Province of Canada was to be split in two: Ontario and Quebec. Those two provinces were considered to

be two separate Senatorial regions. Whereas, The Maritime Provinces - Nova Scotia, PEI and New Brunswick - were grouped together to become the last region. Lastly, there was the consideration of Newfoundland. They were given 6 seats separate for any other region. Consequently, when PEI and Newfoundland joined Confederation - in 1873 and 1949 - the promises made in 1865 were recognized. Therefore, the system was merely extended when Manitoba, Saskatchewan, Alberta and BC joined. No one thought to rebalance the promises made in 1865. No one thought to rebalance the seats in the Atlantic Provinces. No one thought about looking at the implications of New Brunswick and Nova Scotia having ten Senate seats while Alberta has six. We will consider this problem here. What needs to be done now: The Argument for a 4 A Senate We argue that any Senate Reform should have four goals. Reform should acknowledge the Publics Will, while focusing on Achievability, Accessibility and Appropriateness.

Achievable Implementation should be the first consideration of any Senate Reform Package. We should ask if any of the suggested policy proposals will work. We should ask whether the changes that we are proposing could be amended in 10, 30 or even 50 years. Essentially, the question should be: can the proposal work in Canada today and in the future? With these questions put to the fore, we should consider what needs to be accomplished. Since the Victoria Charter Debates, it has been clear that the Senate needs to be rebalanced. Western Critics of the Senate have made that argument. Premiers have made that argument and it has even been attempted. In negotiating the Meech Lake Accord in 1992, Ontario Liberal Premier David Peterson even gave up 6 seats to try to get an agreement. With all of this being said, since the Charlottetown Accord failed in 1992, no federal or provincial politician has fought for Senate Reform. Accordingly, we feel that it is time to put forth a serious and achievable proposal on Senate Reform. This includes rebalancing the Senate. It will be proposed here that, at a minimum, Canadian Politicians should attempt to move back to the system of Regional Equality, first proposed in 1864. At this time, as noted above, the Senate is divided into five regions. Four of those are divisions: Ontario, Quebec, the Maritime Provinces and the Western Provinces. As noted above, in 1865, Newfoundland was offered six seats separate from any other regional divisions. While, it took a while for Newfoundland to join Confederation that same offer of six seats was accepted in 1949. This means that in the present Senate, the Atlantic Provinces have six more seats than Ontario, Quebec and the West Divisions. However, a return to the original Senate Proposals might provide a little more equality. So, a temporary balance might be reached. Think about it: Ontario has a population of 38.78% (2011) and 37.70% of the national GDP (2010). Quebec has 23.14% of the population (2011) and 19.65 of the national GDP (2010). Combined the West has 30.91% of the population and 35.97% of the National GDP (Alberta - 16.22, BC - 12.51, Sask. - 3.91, MB - 3.33).

If one compared those numbers to the realities of 1867 or 1982, it would be clear that those numbers have changed. For example, in a relative sense, the numbers indicate that the Atlantic Provinces are no longer equal to Ontario and Quebec. For today, the Atlantic Provinces provide Canada with less than 10% of our population and GDP. Given that over 60% of all Canadians still live-in two provinces - Ontario and Quebec and the Western Economy is punching above its weight, it seems that balancing the interests of the country would be a good start. Therefore, a return to the Equality of Regions/Divisions proposed by the Fathers of Confederation might be appropriate. Therefore, each region should have 24 seats. Consequently, the Maritime and Newfoundland Divisions would be merged; and, instead of having a Senate with 105 members, we would have a Senate with 99 members. This new Senate would boost the Western Divisions numbers in a relative sense and would begin to get the Senate into balance with todays reality.

Effects of Such a Change From a Constitutional Perspective, some other changes would have to be made. For example, for smaller provinces, House of Commons seat calculations are dependent on the amount of Senate seats that a province has. To illustrate this, let us look at Prince Edward Islands. Based on their population, they should have less than four seats. However, under section 51A of the Constitution, a province shall always be entitled to a number of members in the House of Commons not less than the number of senators representing such province. Therefore, Prince Edward Island has four members in the House. With any change to the Senate Constitution, the House Rules will have to be changed. We suggest that the calculation for seats within a province should start from a minimum amount of members (i.e. 5, 10 or 15). After that minimum is reached, the Provinces population would be the absolute determiner of the number of seats that it gets.

Acknowledging the Public Will It will be argued here that the Senate of Canada should acknowledge the Will of the Public. It should be a non-partisan body like the Legislative Assemblies of Nunavut and the North West Territories. As a result, it could have teeth when it takes on its traditional role as being the Chamber of Sober Second Thought. As such, we are proposing that the Chamber would be an elected body with nine-year terms. The choice of a nine year term is important. For, by choosing such a long period of time, Senators will largely be immune from the short-term political thinking that dominates the House of Commons. This means that Senators will think about more than just our interests. Senators will be able to strike difficult balances. When Nortel went bankrupt, Pensioners turned to the Senate. With its limited political power, the Senate was not able to offer relief. However, in future, the interest of Retirees could be balanced with those of creditors, shareholders and other Corporations both domestic and foreign. Consequently, a newly reformed Senate could do what the Fathers of Confederation intended: protect the long term interests of the country. A Senator would be allowed to run for re-election, so that their record could be examined in a public and significant manner. This would mean that the Senates reports would be listened to and its opinion would be valued. Senators would be a part of the process and not just a rubberstamp or a road block to the will of the people.

However, as noted earlier, as our Forefathers knew, we needed a Senate that is responsive but not reactionary or closed-minded. We need a Senate that reflects the populace. Therefore, Senators should be directly nominated by 15% to 20% of the population. To be clear, before a person can be nominated to be a Senator, he or she needs to petition the populace for their support. That petition must then be forwarded to the Crown, the Chief Returning Officer or the Speaker of the Senate for verification. Consequently, a potential Senator will have more than just the support of one or two parties. Such a nomination process would mean that Senators would be more than just MPs. Accordingly, if the Senate either supports or rejects legislation, it will be seen as a non-partisan act.

Accessible (Agency) The high level of Acknowledgement means that Senators are representatives of the interests of their various communities. As noted by the Supreme Court and the Fathers of Confederation, this means that our system will think about more than just Provincial Concerns. As in the case of Nortel Pensioners, who were ignored by the House of Commons and Provincial Legislatures, the Senate could listen to the needs of various interests listened. They actually produced a full report. Furthermore, because of their independence, Senators could talk to interests both domestic and foreign to understand Canadas place in the World. By liaising with executives, advocates, NGOs and corporations, the Senate would be well placed to guide any government in important issues. Additionally, Opposition Members in the House might find ways to represent their communities if the Government is not taking an open-minded approach. Essentially, the Senate would become the Trustee of our Nation: an opinion which was held by the Fathers of Confederation.

Appropriate As noted earlier, many of these proposals would indicate that our existing system would have to be changed. For example, let us not forget in 1990, the Senate defeated the Mulroney Governments attempts to regulate abortion in light of the Supreme Courts Morgentaler Decision (1988). This was the first time since 1941 that the Senate defeated legislation. While, it has not happened since, one must ask the question what if. What if an elected Senate tries to defeat every bill a government gets through the House? It has happened before in England and Australia. In our opinion, however, The Australian case provides us with a solution. Australia has always had an elected Senate. Therefore, its founders added a special clause to their Constitution: Double Dissolution. Therefore, should the Senate and the House of Representatives not be able to agree on a topic, under certain circumstances, the Governor-General can dissolve the entire elected House and elected Senate. The idea is simple: everybody goes to the public so that discussion can ensue. Therefore, the fate of any legislation has a significant amount of public input. If the election does not solve the issue, a joint seating of the House of Representatives and the Senate does. This system seems to work for them. It has only been used 6 times since Australia was founded. That clause was last used in 1987. Additionally, one other change should be made. To return the Senates strength, should this reform pass, Section 47 of the Constitution Act, 1982 (Amendments without Senate resolution) should be repealed. The reasoning for this is simple: once the Senate is fixed, it would speak on behalf of the people. If an elected Senate says no to a constitutional amendment, then no is also the answer of the people. For as

we have learned all too often, in Canada, elected governments can go too far. Sometimes, there needs to be a reign on government and/or its legislation. While, the Supreme Court can ensure compliance with the Constitution, it cannot judge the political efficacy of a piece of legislation. An elected Senate can. This is our argument for this proposal.

What should be done? Equality of Regions vs. Equality of Provinces Since 1865, Canadians have been debating the issue of Senate Representation. It is our view that this conversation will not be solved quickly or easily. Therefore, we need to talk about it: as Albertans and as Canadians. It needs to be discussed, honestly and openly. However, that conversation should not slow down the easy and obvious changes that can be made. While the experiences of the Meech Lake Accord and the Charlottetown Accord have left a sour taste in our mouth, we should keep talking about the changes we need to make. With that being said, we should never get caught in jingles or catch-phrases. All Canadians should talk honestly and only about what we are trying to get and go there together. So let us get the Equality of Regions right and then talk about Equality of Provinces.