At the time this paper was written Peter
Bosa was a Senator.
There have been many debates on Senate
reform recently, and from those debates have emerged just as many different
proposals for reform. It is now time to sort out the various proposals in order
to distinguish clearly between practical, implementable reform and lofty
theory. It is important that this subject be debated thoroughly for it is the
only way we might arrive at a consensus as to what kind of reform this
institution should undergo.
There already is a consensus, within this
chamber and outside of it, that the Senate ought not to remain as it is.
However, before embarking on any proposal for Senate reform, it might be
worthwhile to consider the legislative structures of Canada and compare them
with legislative structures of other countries.
Canada is a country which has applied the
British parliamentary system to a federal state. Australia has done likewise,
but Australia has an elected Senate, as has the United States. Our Senate is an
appointed one. If we look at the parliamentary systems of the democracies of
the world, we discover that no two countries have exactly the same legislative
institutions. Each country has developed institutions that reflect the
character and aspirations of its people. Parliamentary institutions are best
suited when they are home grown and have evolved to meet a country's needs.
When it gained independence Nigeria adopted
holus-bolus the British parliamentary system. It did not work, and Nigeria had
to relinquish that system of government and adopt one which reflected more
closely the experience and needs of its people. It is not difficult to discover
why it did not work. England has 700 years of parliamentary tradition. Such a
system cannot be transplanted overnight to another country without the cultural
base and traditions which make it operative. Similarly, importing the
Australian system of an elected second chamber into Canada, as proposed by some
Canadians could well have a disruptive effect on our parliamentary institutions
because it is not a natural evolution of our parliamentary system.
The Government of British Columbia proposed
a West German type of upper house in Canada. The membership of the Bundesrat in
West Germany is made up of provincial representatives headed by provincial
cabinet ministers. The provinces or lander, as they are referred to in the
Federal West German Constitution, are organized in an entirely different way,
and a Bundesrat of upper house could not be adopted in Canada. If adopted it
would become, as Senator Forsey pointed out in 1978, a "house of
obstruction". In discussion parliamentary reform of the upper house, it is
well to anticipate the impact that it will have on the rest of the
parliamentary system; otherwise it is like changing the course of a major river
or flooding a major valley without taking into account the impact that such a
change will have on the environment.
Purpose of the Senate
Let us look at what the purpose of the
Senate is and at what the main areas of criticism of this institution are. The
Fathers of Confederation envisioned a Senate as a chamber where regional
interests would be articulated, where legislation would be refined, and where
minorities would be protected. The reference to minorities at that time was to
linguistic minorities English and French but not ethnic minorities, as the
expression has come to mean in the more recent past.
The Senate has performed very well in the
refinement of legislation, which is the most important function of the Senate
at present. Any proposal to reform the Senate must take this into
consideration. Refining legislation requires experience which can only be
gained through some form of continuity in dealing with various forms of
legislative proposals. The Senate went beyond its original mandate in recent
past by undertaking the task of investigating important public issues. Recent
examples of such issues are problems such as poverty, unemployment, inflation,
ageing, land use, science policy, Indian affairs, trade relations with the
United States and so forth. The Senate standing committees, in addition to
doing other very important work, have also introduced in innovative approach in
the pre-study of bills.
The Major Criticism of the Senate
The perception remains that the Senate does
not speak for the regions. Let me share with you my personal experience as a
senator from Ontario. I have been a member of this chamber for over five years,
and during that time there has never been a meeting of the Ontario senators
where regional issues have been discussed. There is no caucus of Ontario
senators, nor is there a mechanism for interfacing with the Government of
Ontario. Neither government members nor members of the opposition have ever
been in touch with me to ask for my assistance in order to advance the
interests of the province. Any intervention that I have ever made in the Senate
on a regional interest has been on an ad hoc basis and personally inspired, as
opposed to a collective approach by Ontario senators. It may be that senators
from other regions have consultations with their respective colleagues and
their legislature, although, from private conversation, I doubt very much that
is the case.
So we must ask ourselves: Does the Senate
fulfill its role? Based on my personal experience, the answer must be a
qualified one at best, because the belief that the Senate does not speak for
the regions is, in my experience, a valid one. Other areas of criticism
directed at the Senate are its absolute veto power and the manner in which its membership
is selected. Appointment is considered to be undemocratic. This is further
aggravated by the mistaken notion that many of the appointments to the Senate
are made from a roster of defeated politicians, party fund raisers and cabinet
ministers who have outlived their usefulness in cabinet. Such a notion implies
that anyone in those categories is not fit to serve. In fact, we have only to
look around this chamber to appreciate how unfair that notion is.
Senator Roblin has argued that
"responsible government in Canada will be strengthened if the membership
of the Senate is constituted by election rather than by appointment." I am
sure it will be. This institution would regain its credibility in the public
mind, and 1 fully support any reform that will enhance the prestige and
credibility of the upper house. It is my opinion that an elected Senate would
be highly regarded by Canadians as a whole. it is also my belief that an
elected Senate would want definite powers and clout. The power and clout now reside
in the other place, and any reform along this line would depend entirely on how
much power the government and the House of Commons are willing to relinquish.
How independent would an elected Senate be?
It would seem to be unrealistic to assume non-involvement of national political
parties in Senate elections. The likely result would be that Senate races in
any one region would duplicate the results in House of Commons constituencies
Elected senators would have to conform to party platforms and caucus discipline.
The elected senators would feel precisely the same pressures to dampen
expressions of regional dissent as members of Parliament do now through cabinet
solidarity and the pressures of political party discipline.
If we had an elected Senate, the question
would certainly be asked, "Who speaks for Canada – the House of Commons or
the SenateT' Even if the demarcation lines of power were clearly defined, do we
really think that we could speak on behalf of the regions and overshadow the
The provincial Conferences that commenced in
the 1880's have evolved into full-fledged debating and decision-making forums
in the last 25 years. The premiers play a most prominent role at these
conferences. It is unrealistic to believe that they would relinquish that role
to an elected Senate. In addition, there would be great resistance to an
elected Senate by the House of Commons and by the provincial legislatures. I do
not believe anyone wants an elected Senate at present, other than those who
theorize that an elected chamber would strengthen the institution in the eyes
of the public.
Reform but not Election
I started out as an advocate of an elected
Senate and on one occasion shortly after my appointment, I spoke about it in
this chamber. In retrospect, I can say that I was motivated by the belief that
an elected Senate would carry out its mandate more credibly. As I have gained
more insight into the workings of Parliament, I have become sincerely convinced
that a modified, reformed Senate would complement our parliamentary institution
more effectively. An elected Senate is not a practical evolution of the
institution in our system of government at this time.
A second chamber differently constituted
could be given powers that would directly affect the provinces. There are
numerous agreements between the central government and the provinces covering a
whole range of topics which are rarely debated in this chamber. The
implementation and control of these agreements is not under the direct
supervision of any one body.
It would seem that the best forum for
in-depth analysis of the agreements may well be a reformed Senate. One reform
that could be instituted swiftly to put the Senate on a new path would be to
change the tenure of office. The present retirement age of senators is 75
years, apart from the dwindling number who were appointed for life. The
provision for a retirement age of 75 should be changed to a fixed term of
perhaps 10 years, with the option of reappointment for further five-year terms.
This recommendation is contained in Senator Lamontagne's report entitled
"Certain aspects of the Canadian Constitution". In order to retain
the expertise and experience in the Senate, this transition should take place
The method of selection by appointment has
fallen into disrepute, but judges are appointed by governments and the courts
are respected and held in high esteem by society. The consultative method
employed in appointing judges should be used for the appointment of senators.
Consultation between the central and provincial governments could be broadened.
This may result in a less politically partisan Senate and a Senate which the
provinces, because of their input in the appointing process, may feel more
comfortable consulting on regional issues.
If the Senate is to remain the chamber of
sober second thought, then the absolute veto should be relinquished and
replaced by suspensive veto. The Senate has a tremendous amount of power over
legislation at the present time that is, the power to defeat legislation.
However, its lack of legitimacy because of its selection method makes it almost
impossible for the Senate to exercise this power. A change to a suspensive veto
would allow the Senate to take a more active part in the criticism of
legislation, to the point of delaying approval in order either to give the
House of Commons time to reflect on its proposals or to allow time for public
opinion to crystallize around the proposals.
The institution of these changes, which have
been advocated by constitutional experts both within this institution of
Parliament and in the academic field, would give the Senate a new image, and it
would enable Senators to carry out more effectively the important work that is
expected of them. Canadians are basically small "c" conservatives. It
is my perception that they are reluctant to institute radical changes in their
parliamentary institutions. I believe they would prefer and would support a
moderate approach to the reform of the Senate such as the one I have proposed.