At the time this article was written Duff Roblin
was a Senator. This article is an abridged version of a speech delivered in the
Senate on February 24, 1982.
Throughout the greater part of its
existence, the Senate has been subject to the attentions of a well-meaning
series of constitutional improvers. Yet more than 115 years after its creation
in 1867, the Senate is still in place, practically unchanged from the original
form that the founding fathers gave it.
In spite of that impressive record of
durability, it seems to me that the pressure for Senate reform has seldom been
more intense than it has been in the last few years. There is a widely
perceived need outside this house, if not in it, that a more effective
instrument is required to incorporate the regional interests of Canadians
within the decision-making process of the central federal organs of government.
One can only speculate on how much longer the status quo in the Senate can
resist change. I give you my opinion, which is perhaps not widely supported,
that the Senate must change, or it will ultimately be changed by others. The
agitation for Senate reform these days comes from all sides, and a mere list of
the agitators tells a tale.
We start with the Confederation for Tomorrow
Conference, sponsored by the Province of Ontario. There is a Beige Paper,
produced by the Liberal Party in Quebec. There was the very important
initiative of the Government of British Columbia with respect to a new form of
Senate organization. There was the report of the Pepin-Robarts commission,
which was an emanation of the federal government. We know that the Canadian Bar
Association agonized long over what kind of new Senate they would like to see.
We have heard from the Canada West Foundation with respect to Senate reform on
two occasions, the last one of which was under the aegis of Senator Manning. Of
course, the Senate considered the federal government Bill C60, which occupied
our attention in 1979. In a current report on Senate reform under the name of
Senator Lamontagne, it is proposed to rearrange the powers and functions of
this body in an interesting fashion, but a fashion which, in my opinion, is
inadequate to the needs of the case.
There is, however, a common theme that runs
through all of these proposals, which is that a second chamber of some kind is
favoured by almost all Canadians. We get the impression that these wide-ranging
examinations of our Constitution are in agreement with the concept that the
Canadian federal system requires a bicameral federal legislature. That, is the
first point that I would like to establish.
The Need for a Second Chamber
In a federal state like Canada, governed by
the parliamentary political process, peace, order and good government require
an effective second federal chamber. This proposition is based on the
fundamentally regional characteristics of our country. The nation arose in 1867
from several distinctly articulated regional societies. Our current history
must emphasize beyond all dispute, that the regions count, and that Canada is
still a federation. I believe that Canadians share a common sense of nationhood
and destiny, but I also believe that Canadians understand themselves as
belonging to regions regions which vary distinctly from one another in size,
in population, in language, in history and in interests. It is this regional
variation which must be accommodated within the central federal lawmaking
Today, all of the witnesses that 1 have
called upon proclaim the pressing need to reconcile legitimate regional
interests with the common good of the nation. Of course, there is absolutely
nothing new about all of this. In Quebec, in 1864, the Fathers of Confederation
faced up to exactly the same situation. They provided a solution to it. Their
answer was that we were to have a federal House of Commons based on
representation by population, and we were to have a federal Senate based on
territorial representation. Representation by population satisfied the
interests of Upper Canada, which was calling for "one man, one vote",
regardless of location. The smaller regions, however had other aims in view.
They saw a populous Upper Canada, by means of its own numbers or in special
combination in central Canada, able to impose its will on regional minorities.
Thus some counterbalance was sought.
In 1864, in Quebec City, out of the fourteen
days of consideration that led up to the articles of Confederation, six days
were devoted to this problem. The solution? The Senate as we have it today, a
second federal chamber, was the solution that was agreed upon.
Thus the first great principle of democracy
representation by population is embodied in the House of Commons. The second
great principle of federalism territorial representation is enshrined in the
Senate. This explains the Senate of 1867. Indeed, in 1867 I think it would not
have been unfair to say, "No Senate, no Confederation!" It also
explains the case for an effective second federal chamber in 1982.
What I have said so far is a common place of
Canadian history. We ought to establish, though, in our own minds the compelling
reasons that are behind the proposal that an effective second chamber is
required in 1982, before we attempt to improve on the one we have. It is my
submission that Canadian experience, both historically and currently, and,
indeed, the experience of similar federations elsewhere shows that Canada
needs an effective second federal chamber to represent regional interests. It
may be said that we have a Senate which was designed especially for this
purpose. Is it fulfilling that task? Why do you think that it needs to be
The Lamontagne committee, whose report I
have already referred to, made interesting comments on the current reform
proposals. It isolated the defects of some of these proposals that were
examined and, for good reason, they were set aside. At the same time, that
committee underlined the good and useful things that the present unreformed
Senate is able to do. I defend the diligence and the dedication of the members
of the present Senate. I agree that its work as a revising chamber in examining
and amending proposed laws is favourably known in many circles. Its balanced,
non-partisan, thoughtful, and, Heaven be praised, sometimes original
initiatives in the work of the committees that go into matters of public
concern have often given the lead to the House of Commons and earned the praise
These are all very worthwhile activities and
I defend them as a public service. I am glad that the Lamontagne committee has
documented, in an incontrovertible and historical way, the facts of this matter
for public consideration. I think this is a valuable consideration. It deserves
our thanks indeed, it deserves wider dissemination by the media than it has had
so far. These functions to which I refer should be cherished and continued in
any new Senate that might be developed in this country.
However, when one proceeds from there to
examine the analysis of the committee and its conception of public
dissatisfaction with the present Senate, when one looks at the curious
arrangement it has for continuing senators by appointment, with a self
perpetuating continuation at that, it becomes clear that the Lamontagne report
is not a reform proposal which the public of Canada is likely to approve. I say
this because the one area in which the public perceives the Senate to fail most
conspicuously the one area which all reformers examine and also the area of
paramount concern in our affairs today, the area that goes to the heart of the
matter is the role of the Senate as part of the central federal legislative
authority. In this role, the Senate does not adequately represent regional
interests, although that is the purpose for which it was mainly constituted. I
submit, therefore, that for any plan of Senate reform to succeed in the public
arena, this responsibility of regional representation is the one which must be
Origins of the Problem
If this failure exists, how has it come
about? Why is the Senate not that responsible and effective body of regional
representation? Was the Senate of 1867 or is, indeed, the Senate today
powerless? Was it impotent? Far from it. It was and still is vested with
enormous power in terms of legislative authority, in terms of lawmaking
capacity. It is fully the coequal in power of the House of Commons. It is true
that the House of Commons has always controlled the purse strings, in the sense
that money bills can only originate there. It is true, as well, that no
government need resign if defeated in the Senate. Only the House of Commons can
make or unmake governments, or make and unmake prime ministers. Apart from
those two exceptions, however, the Senate of 1867 was, and the Senate of today
is, endowed with adequate power to fulfil its role as the territorial
representative to act as the balance wheel, as the "make weight," in
the federal system.
Therefore, we have, I submit, the present
Senate made up of experienced and capable men and women. It does hot represent
provincial governments themselves, it is true, nor should it, but it is
constituted to represent regions within the federal constitutional ambit and
the federal constitutional prerogative, and is vested with extensive powers.
Generally speaking, though, instead of functioning as the balance wheel of
Confederation, it is regarded by most who look at it as being a fifth wheel of
the Constitution. The media, by and large, overlook our debates. Our
credibility with the general public is undeniably low, and even we senators
complain that we are ignored by the federal executive and are neglected by the
provincial governments. At the same time the Senate declines to exercise the
power it possesses which might either justify its existence or, alternatively,
challenge its political legitimacy.
The defect in our arrangement in the Senate
is quite simple to identify. It is to be found in the fact that senators are
summoned to office by appointment of the federal prime minister, and in no
other way. The fact that we have a Senate by appointment, in my opinion,
undermines its whole position. It vitiates its capacity for independent action.
An appointed senator and let us be frank about this is responsible
constitutionally to no one. Politically, many senators, it is fair to say,
recognize the claims of the power that appointed them. But it must be clear
that in 1982 a system of political appointment of men and women who are vested
with legislative functions and lawmaking authority is repugnant to modern
perceptions of representative and parliamentary government.
The Senate is an instance where we have
legislative authority without democratic responsibility, and thus it is clear
that appointed senators lack the imprimatur of political legitimacy. An
appointed Senate cannot be expected to use its power. Indeed, sensibly, it
tries but seldom or almost never to exercise its undoubted constitutional
authority. For all its theoretical power, the appointed Senate knows its place.
The Senate declines to engage the elected House of Commons, even when
legitimate regional interests may be at risk. Thus, the main purpose of the second
chamber, if you follow my line of reasoning, the recognition of regional
interests at the federal legislative centre, goes by default and is rendered
The lack of political legitimacy, in the constitutional
sense of that phrase, lies at the heart of the matter. The remedy, in a
representative and parliamentary system, is obvious. You simply change the
method of selecting senators. You change it from selection by appointment to
selection by election. By this one move, by moving from the appointive system
to the elective system, constitutional legitimacy is achieved and the Senate is
then vested with the moral as well as the political authority to discharge its
responsibilities. Political responsibility is then added to regional
responsibility, and it offers at least the possibility, if you want to go no
farther than that, that an elected Senate could function as it should, within
the federal parliamentary system on matters within the federal ambit and the
How to Elect a Senate
Once the principle of election of senators
is accepted, many important election options present themselves for
consideration. On what system of voting would senators be chosen? We have an
opportunity here to break away from the first-past-the-post system, which is
now used to elect members of the House of Commons. I continue to think that the
first-past-the-post system is well adapted to the House of Commons, where there
is a need, under most circumstances, for a stable majority to support a
government. The Senate, however, where the question of confidence does not
arise, could be elected in another way. We have heard the proposal that it
should be elected by proportional representation. This is often described as a
system of voting on the party slate, where the candidates are listed in the
order of the party preference.
Some objections are raised that there is far
too much party influence in this system and the voter has not sufficient
choice. But proportional representation of that kind is not the only way. There
is the transferable vote. Here voters may select any candidate they choose and
list any number of names, up to the total to be elected, in the order of the
voter's choice in order to fill the number of seats available. This system
enables the voter's preference to supersede the party choice, and some may
think it has much to commend it.
I am sure there are other methods, apart
from the ones I have mentioned and the first-past-the-post system in the House
of Commons, that would be considered when laying down the rules for election to
the new Senate of Canada. Such a system, I think, would be quite compatible
with senatorial interests in the representation of minorities.
However, I am not attempting today to put
before honourable senators any strict set of rules about many of the
complications that arise. My concern is to get recognition of the elective
principle. Once that proposition is conceded, then we have to sit down and
decide just how to put it into action. I offer some suggestions. I do not say
that they are exhaustive.
Let us turn to the question of the
territorial electoral units that might be used. Our present system consists of
a series of senatorial divisions. There were originally three divisions, each
one providing an equal number of senators, 24 apiece. We now have four
divisions, the Maritimes, Quebec, Ontario and the west: and we have some
adjustments for Newfoundland and the Northwest Territories. But the principle
behind the divisional system is that they should be, to ail intents and
purposes, equal and that the territorial extent of the country should be
represented equally through these senatorial divisions.
There are some who would say that if you are
going to elect a Senate you should have the same number of senators for each
province, just as in the United States: and that is a proposition worth
considering. If you were to ask my opinion, I would say that for historical and
practical reasons, perhaps some modification of the present divisional system
is best suited as the next step in Canada, where each province could elect its
own senators. In the case of Manitoba, for example, we would elect six on a
provincial basis, and larger areas like Ontario might be divided into regions
which would also elect six senators apiece. These are matters which could be
reasoned and discussed as the matter proceeds. As I have said, the present
divisional system could perhaps be modified to take into account recent
developments, and this to me is a reasonable basis to start from.
When should the senator be elected and for
what term of office? There are at least three possibilities that occur to me:
elections could be held independently, for the Senate alone: elections could be
held in conjunction with elections for the House of Commons: or, indeed,
elections could be held in conjunction with each provincial election. If you
are anxious to underline the regional character of the Senate, this last
proposition has something to be said for it. All these different proposals are
ones which could be the subject of further study, if the Senate so chose. The
term could be six years. That seems to be a popular number. Possibly, the
election could be arranged on a staggered basis, with one half elected at each
election. There are several possibilities with respect to how the Senate should
be elected and how the vote should be counted.
A question that is equally important and to
which we ought to apply our minds is: How would such an elected Senate work in
a parliamentary system such as ours, and what power should this Senate have to
discharge these regional responsibilities to which I have referred? I say the
Senate should have exactly the same powers when it is elective as it has today.
The House of Commons must remain the primary body. The government should only
be responsible to the House of Commons. Only the House of Commons should have
the authority to empower governments or prime ministers, and only the House of
Commons should originate money bills.
However, an elected Senate could retain the
present powers of an appointed Senate. Indeed, as an elected body it is
appropriate that it should do so. In fact, I would add to the duties. I would
say that when the federal government appoints officers to regional or national
bodies and the like, a list of them could be compiled, and those appointments
could be subject to ratification by an elected Senate.
But if powers such as these are conferred
upon an elected Senate, the question of harmonizing the work of the Senate and
the House of Commons assumes capital importance. It is a critical consideration
for any elected Senate that we should not be automatically providing for a
stalemate or for an unlimited legislative deadlock with the House of Commons
itself. The federal system should not be stultified by an elected Senate, and
the solution of differences between the two chambers must be regulated and
workable, with the primacy of the House of Commons recognized.
A number of possible arrangements suggest
themselves. Obviously, we would seek to strengthen the joint Senate-House of
Commons system of consultation and management, the system of consultation and
communication, and perhaps the establishment of a joint management committee
would be in order. This would enable us to seek mutually acceptable compromises
which are clearly possible on many issues.
If the House of Commons proposes a measure
which does not meet with the approval of the Senate, it might be stipulated
that the House must muster a two-thirds majority in order to firm up its views.
Another variation of the same idea is that if the Senate rejects a proposal
from the House of Commons on the first occasion by a simple majority, and if it
is represented by the House of Commons a second time, then at that stage the two-thirds
majority might be required in order to deal with the matter. Alternatively,
differences could be settled by joint sittings of the Senate and the House of
Commons when a simple majority would decide. As a last resort, the federal
Prime Minister should perhaps be given the power of a double dissolution. Then
both the House of Commons and the Senate would go back to the people and let
the people, in a new Parliament, decide what course should be taken.
These are only a few ideas on the vital and
critical question of reconciling the operation of an elected Senate with the
parliamentary system as we know it. I suggest that either alone or in
combination or with the addition of ideas which other senators may be able to
suggest we can ensure that an elected Senate would conform with the
requirements of representative and responsible government in Canada. Both
houses must ultimately recognize the sovereignty of the people.
I see merit in turning to an elected Senate
as a significant improvement in harmonizing the interests of our regions within
the central legislative apparatus and within the federal ambit and authority.
But I do not propose it as a sovereign remedy to all that ails Canadian
federalism. There will always be a federal prime minister, provincial premiers
and federal-provincial conferences with direct contact between the governments.
In no way would an elected Senate do away with all the regional discomforts we
experience. How could it? Its main role is to be played with respect to federal
legislation within the federal constitutional ambit and within the federal
power. The federal-provincial division of powers remains undisturbed. This new
Senate would not represent provinces; it would represent people in regions of
Canada. In that respect, I think its role would be clear and unambiguous.
I must warn this chamber that in Australia,
a federal state much like ours, there is an elected Senate, whose performance
has been criticized as being too heavily influenced by party manipulation and
offering perhaps only a pale reflection of the political struggles in the House
of Representatives. I would suggest that. if we in this country are to reform
our Senate, we should take note of the problems that have arisen in Australia.
If an elected Senate were subject to party manipulations, as some suggest the
Australian Senate is, or if it were merely a pale reflection of the House of
Commons, one would have to be concerned. If the Senate is elected by
transferable vote at the time of provincial elections, we may find that we have
gone a long way towards dealing with the problems perceived in Australia.
Our elected Senate can be designed to
minimize any disadvantages that may be discovered. It should be deliberately
modeled to take into account the experience of other second chambers in other
parliamentary systems and particularly shaped to answer to Canadian needs and
The question of Senate reform is now pretty
close to the top of the constitutional agenda. Senators by election, as opposed
to Senators by appointment, is clearly a leading option. It is my opinion that
public sentiment and expert opinion alike support at least the consideration
and investigation of a proposition of the kind I set before you.
If the Senate is to continue to have legislative
power of the type it has now, it most certainly ought to be elected. It if is
to relapse into an advisory body whose word does not count, it really does not
matter what you do.
I think, however, that the present Senate is
well qualified to take the lead in the consideration of this question. Indeed,
I suggest that our self respect would urge us on such a course. If we fail to
propose a timely and effective change ourselves, then undoubtedly others will
do it for us. I want to see the Senate take the lead. We owe it to ourselves;
we owe it to the nation.