This article looks at recent government proposals for Senate reform and focuses
on the impact these proposals could have on the representation of francophone minority
communities in the Senate. The study looks at the Senate’s historical and constitutional
context and its role in order to analyze the representation Canada’s francophone
minority communities have traditionally had in the Senate. Using international comparisons
with other federal and multinational states, the article offers insights on the
best ways to reform the Senate, if necessary, so that it can continue adequately
representing francophone minority communities.
Walter Bagehot, an English journalist who wrote about the
British parliamentary system, said, "If we had an ideal House of Commons... it
is certain we should not need a higher Chamber." The Canadian Senate is a
necessary and useful institution, and yet it is today probably one of the least
well understood institutions in the country.
How many Canadians have asked, "But what does the Senate
do?", or "Do we really need a Senate and senators?", or "Why aren’t senators
elected, just like MPs?" These are serious questions that constitute starting
points for the debate on Senate reform in Canada.
Current Context and Recent Reforms
After a number of years Senate reform is on the agenda again.
On May 30, 2006, the government introduced in the Senate Bill S-4, limiting
senators’ terms to eight years. The bill, which became C-19 in the subsequent
session of Parliament, was studied in depth by two Senate committees. When he
appeared before the Special Senate Committee on Senate Reform on September 7,
2006, Prime Minister Harper himself told the Committee that Bill S-4 constituted
a first step in the process of reforming the Senate.1
Some months later, in December 2006, the government
introduced in the House of Commons Bill C-43, which became C-20 in the
subsequent session. The bill proposed the introduction of a full electoral
system applicable to the selection of senators. When Parliament was dissolved in
September 2008, Bill C-20 was before the House of Commons Legislative Committee
called to study this Bill. With these two bills, the federal government hoped to
make significant changes to the Senate strictly by means of legislation. In the
Speech from the Throne of November 2008, the government reaffirmed its intention
to introduce a bill proposing an elected Senate limiting senators’ terms to
eight years. The introduction of these bills will continue to fuel debate and
raise a number of questions both among federal and provincial parliamentarians
and among Canadians.
It is certainly worthwhile to think about ways of renewing
the Senate and all our institutions. But it is essential that the discussions be
based on a clear understanding of the Senate, and to achieve this we must look
at its historical and constitutional basis and at the role that the Fathers of
Confederation planned for it.
Historical and Constitutional Foundations
In the current debate, people seem to have forgotten that
without the inclusion of an upper house able to represent and defend regional
and minority interests, there would have been no Confederation in 1867. As a
number of authors have pointed out (e.g., Ajzenstat, 2003; MacKay, 1927;
Woerhling, 1992), the Senate was a hotly debated topic at the Quebec Conference
in 1864, and one on which the Fathers of Confederation had difficulty reaching
agreement.2 To quote George Brown, "Our Lower Canadian friends have
agreed to give us representation by population in the lower House, on the
express condition that they could have equality in the upper House. On no other
condition could we have advanced a step."3 Without this protection
for regional and minority interests, Quebec would not have agreed to unite with
the other colonies.
In his book Protecting Canadian Democracy: The Senate You
Never Knew, Senator Serge Joyal gives a summary of the Supreme Court’s 1998
opinion in the Quebec Secession Reference, which sets out clearly the key
organizing principles of our constitutional architecture: federalism, democracy,
constitutionalism and the rule of law, and respect for minorities.4
We are primarily concerned in this paper with the principles of federalism and
respect for minorities.
The Principle of Federalism
The principle of federalism shapes our constitutional
structure. As Senator Joyal puts it,
[Federalism] is, in concrete terms, the recognition of
the diverse nature... of our federation. The principle of federalism is
essentially the recognition of the linguistic, religious and socioeconomic
differences of Canada’s regions and provinces. At its inception, the federal
system of government in Canada was devised to accommodate the various needs
and bolster the respective strengths of the original partners in
The Senate was an integral part of the compromise of 1867
because it was seen, in conjunction with the principle of federalism, as a way
of accommodating the deep differences between the regions and provinces forming
the new federation. The Quebec government recently reiterated this point in a
brief that it submitted to the Standing Senate Committee on Legal and
Constitutional Affairs on May 31, 2007. It recalled that the Senate was an
integral component of the compromise that resulted in the birth of Canada in
Moreover, many political scientists consider that federalism
is the mechanism that makes it possible to accommodate minorities within a state
and its institutions. As Gagnon explains in his recent study on asymmetrical
federalism in Canada,
The literature on this subject generally agrees that
federalism is an advanced institutional form that allows the establishment
of complex democratic practices more respectful of the preferences of the
various communities that share the territory of a given nation state.6
In another study published in the same book, Rocher writes:
The recognition and preservation of the various
communities that make up the federation must result in specific
institutional structures for achieving this initial objective.7
Respect for Minorities
The principle of respect for minorities is another
fundamental constitutional principle defined by the Supreme Court in the 1998
Quebec Secession Reference. The Court’s decision confirms that minority rights
were "an essential consideration in the design of our constitutional structure
even at the time of Confederation."
Although the British North America Act embodied a
compromise by which the original provinces agreed to federate, it is important
to keep in mind that the preservation of the rights of minorities was a
condition on which such minorities entered into the federation, and the
foundation on which the whole structure was subsequently erected. The adoption
of the Canadian Charter of Rights and Freedoms in 1982 confirmed and
expanded this protection for minorities. According to Senator Joyal, "as these
new categories of rights [were] added to the Constitution, the role of the
Senate as the chamber for the expression of minority rights and human rights
within Parliament has been confirmed, broadened and strengthened."
The issue of minority representation in the Senate and within
parliamentary institutions is conspicuously absent from the current debate on
Senate reform. While in the beginning, as Ajzenstat points out, the Fathers of
Confederation assumed that the Senate would protect political dissent and
respect for the rights of political minorities,8 our idea of what
constitutes a minority has changed over the years. Today, as Smith points out,
senators tend to represent the groups in society that are underrepresented in
the House of Commons,9 including women, Aboriginal people, visible
minorities and official-language minority communities. In the current debate the
complete neglect of minority representation, and more particularly of
representation of francophone minority communities, concerns us.
Representation of Francophone Minorities
The Senate has historically played a vital role in the
representation of this country’s linguistic minorities, including the
francophones outside Quebec and the anglophones in Quebec. In 2007, only 4.3% of
the members of the House of Commons were minority francophones, while in the
Senate the proportion was 9.1%.10 A review of the historical data on
senators shows that francophones in minority settings from Alberta, Manitoba,
Ontario, New Brunswick and Nova Scotia have been almost continuously represented
in the Senate, with a few exceptions (see Table 1).
Table 1: Francophone Senators from Minority Communities, by Province
||No francophone senators.
||Almost continuously, except from
1931 to 1940, and from 1964 to 2005.
||Continuously from 1931 to 1976.
||Almost continuously since 1871.
||Almost continuously since 1887.
||Almost continuously since 1885.
||Almost continuously, except from 1968 to 1974.
|Prince Edward Island
||Only one Acadian senator from 1895 to 1897.
|Newfoundland and Labrador
||No francophone senators.
Manitoba, for its part, has had almost unbroken francophone
representation since 1871. Saskatchewan and Prince Edward Island have also from
time to time sent members of their francophone minorities to the Senate.
Alberta’s francophone community was represented in the Senate
from 1906 to 1931, and from 1940 to 1964, and has again been represented there
since 2005. Apart from a few short intervals, Ontario has always had at least
one and often two francophone representatives in the Senate. Such illustrious
Franco-Ontarian senators as Napoléon-Antoine Belcourt, Gustave Lacasse and more
recently Jean-Robert Gauthier were very active in the Franco-Ontarian community
and played a part in some of the great linguistic debates of their respective
Although there is currently no official mechanism requiring a
Prime Minister to appoint senators from the francophone and Acadian communities,
there is a long-standing tradition of which francophones from minority settings
are well aware.
According to Kunz, in his book The Modern Senate of Canada
1923-1965, the Senate representation called for by Acadians,
Franco-Ontarians and western Canadian francophones, as well as the
English-language community in Quebec, "forms part of the principles governing
appointments."11 Kunz describes how, from the very earliest years
after Confederation, John A. MacDonald judged it to be probably desirable, and
even necessary, to give francophones and Acadians representation in the Senate.
The historical data shows that subsequent prime ministers have also deemed it
wise to appoint senators from francophone communities outside Quebec. In a
recent study on political involvement by francophones outside Quebec, Cardinal
says "[Prime ministers], because of their power to appoint, can increase
minority francophone numbers in the Senate, but there is nothing requiring them
to do so."12 The appointment of francophone senators from minority
settings thus depends on the one hand on the prime minister’s good will, and on
the other on the ability of francophone communities to influence the prime
minister’s political decisions.
As Kunz says, francophone minority communities saw the
appointment of francophone senators as "a recognition of their relative
importance in the social and political system of the country."13
Appointing a francophone senator from an anglophone province often constituted a
highly symbolic gesture: it meant that the contribution and participation by
francophones in their community’s political and economic life was at least
Contributions by Francophone Senators
The archives of provincial francophone associations14
show that a number of francophone senators used their position in the Senate to
highlight serious injustices perpetrated on francophone minority communities.
Senators Belcourt and Lacasse spoke repeatedly in the Senate
about the situation of French in Ontario in the wake of the battle over
Regulation 17. Senators Jean-Maurice Simard and Jean-Robert Gauthier, among
others, also used the Senate as a platform for voicing their disapproval of
certain provincial and/or federal measures. During the long fight to prevent the
closing of the Montfort Hospital in Ottawa, Senator Gauthier spoke in the Senate
to draw attention to the serious injustice that the Franco-Ontarian community
would suffer if the province’s only French-language teaching hospital were
Other senators also spoke on the subject, and the Senate
unanimously adopted a motion, on April 24, 1997, urging the federal and Ontario
governments to find a solution so that Montfort could remain open. In 1999,
Acadian Senator Jean-Maurice Simard used his position as a senator to publish a
report entitled Bridging the Gap: From Oblivion to the Rule of Law, on
the implementation of the Official Languages Act.
Over the last few years, the Senate Standing Committee on
Official Languages has also published a number of studies and reports dealing
with issues of importance for francophone minority communities – the role of
education in minority settings, the impact of the relocation of head offices
from designated bilingual regions to unilingual ones and the place of French at
the 2010 Olympic Games in Vancouver.
The Senate can also play an important legislative role. We
must certainly not forget Senator Gauthier’s four attempts, ultimately
successful, to have significant amendments made to Part VII of the
Official Languages Act. Part VII was strengthened and improved by the passage of Bill
S-3 in November 2005 because of the perseverance of a senator who wanted to
improve the lot of official-language minority communities. Although the Senate
has not always been able to act to protect the rights of Canada’s francophone
minorities, it has from the beginning served as a key forum where francophones
could highlight their concerns about what their governments were doing. In
addition, we find in the archival holdings of provincial francophone
associations clear evidence that most francophones from minority settings
appointed to the Senate were actively involved in the development of their
community and were in fact appointed because of their community’s support.
The Impact of Electing Senators
In its Bulletin francophone newsletter of February 2007, the
Fédération des communautés francophones et acadiennes (FCFA) argued that any
proposed change to the Senate should, among other things, take into account
representation of official-language minority communities.15
Francophones were involved in all debates over reform early
on: as soon as Bill C-60 was introduced in 1978, for example, the Fédération des
francophones hors Québec (FFHQ, later the FCFA) started voicing concerns. As
Linda Cardinal points out in her recent study on the involvement of francophone
minorities outside Quebec in Canada’s political life, during the constitutional
debates of the 1980s, the FFHQ was calling for guaranteed representation in the
Senate of francophones from outside Quebec.16 Cardinal notes that the
FFHQ was involved in the debates over the Meech Lake Accord and the
Charlottetown Accord, to ensure that the concerns of the francophone and Acadian
communities would be taken into consideration if an elected Senate were
introduced. In light of the proposals that the current government has put
forward in the House of Commons and in its most recent Speech from the Throne,
it is important that this reflection continue.
The measures proposed by the current government do not in any
way take into account the impact on the representation of minorities, and
especially of the francophone minorities. When Prime Minister Harper appeared
before the Special Senate Committee on Senate Reform on September 7, 2006, he
replied to a question from Senator Maria Chaput of Manitoba, about the impact on
minority representation of a shift to an electoral procedure, by saying,
This is a debate we will have during the next step. The
government is going to introduce a bill and I presume there will be
discussions on this point. I think there are ways to encourage the election
of individuals who represent Canada’s diversity. However, the nature of an
election process is such that we cannot dictate voters’ choice.17
We take the Prime Minister to mean that the proposal for
Senate elections that he tabled before the House of Commons gives no thought at
all to the representation of official-language minority communities. The only
politician so far to indicate that proposals for Senate reform must take into
account minorities’ concerns and Canadian duality was Quebec’s former
Intergovernmental Affairs Minister, Benoît Pelletier. When he appeared before
the Special Senate Committee on Senate Reform on September 21, 2006, Mr.
In my presentation on behalf of the Quebec government, we
set out some guidelines for a future Senate reform when I said, "Any future
Senate reform must take into consideration, above all, Quebec’s specific
interests, which are historic ones; second, Canadian duality; and thirdly,
If we proceed with the election of senators, representation
of minority francophone communities will probably suffer. First, we will run the
risk of losing what has been gained so far – the representation francophone
minorities now enjoy – unless it is placed on an official footing by either
legislation or some other means. Second, if in an election the voters of the
provinces and territories are called upon to choose one or more candidates from
a list, there is absolutely no mechanism to ensure that there will be
francophones on that list, unless minority communities continue to exert
pressure to bring this about. Furthermore, if all the voters of a province
and/or territory are called upon to express a preference, this will certainly
diminish the impact that the francophone community can have on the final result,
since it is a minority of the provincial and territorial populations.
As the FCFA explained in its February 2007 issue of the
Bulletin francophone, the type of procedure being proposed could mean that seats
like the one held by Senator Gauthier in Ontario would no longer be filled by
francophones. There could be major losses in the representation of francophone
minorities in the Senate. Massicotte’s study confirms that official-language
minorities have little to gain and a great deal to lose if the method of
selecting senators is changed.19 In provinces where francophones have
historically enjoyed representation, there would be no mechanism facilitating,
still less ensuring, adequate representation of the francophone minority. The
question we must ask ourselves, and to which we must strive to find an answer,
is the following: How can we ensure that in any proposal for Senate reform
francophone minority communities will not see their gains whittled away? And is
it possible to make further gains?
Possible Representation Mechanisms
Over the years, a number of proposals for reforming the
Senate have mentioned or proposed the adoption of a double majority rule in
order to ensure additional protection for the French language and culture in
this country: Bill C-60 in 1978, the Molgat-Cosgrove report, the MacDonald
Commission, the Beaudoin-Dobbie Committee and the Charlottetown Accord.
Bill C-60 originated the idea of compensating for the decline of francophones in
the Senate by giving a veto to parliamentarians representing linguistic
minorities. For its part, the Charlottetown Accord provided that the Senate
would have an absolute veto on linguistic and cultural matters and that any bill
involving linguistic or cultural matters would have to be adopted not only by a
majority of senators but also by a majority of francophone senators.
Giving the Senate an absolute veto on linguistic and cultural
matters and making bills subject to a double majority in the Senate are probably
two of the best means by which an elected Senate could have some influence on
linguistic and cultural matters of interest to francophone minorities. It would
be important, however, to ensure that the current francophone representation in
the Senate is at the very least maintained or possibly increased. This would
complement Quebec’s mostly francophone representation and ensure that the entire
Canadian francophonie was represented. These two mechanisms combined would take
into account the constitutional principle of protecting minorities Joyal spoke
In a system where senators were elected, it would also be
necessary to well define electoral districts within each province. This could
mean that francophones, despite being minorities on the provincial scale, might
be able to have some influence on the results of the vote. In his study on
Franco-Ontarian voting patterns, Martin Joyal affirms that francophones are
elected mainly in ridings where they constitute at least 30% of the population.20
He also notes that ridings that have a proportion of francophone residents above
30% are becoming rarer because of Ontario’s demographic changes. The same
applies to most regions of the country. For Franco-Manitobans and
Franco-Albertans, a province-wide election could mean the loss of their current
Several countries with bicameral parliaments have established
mechanisms for representation of minorities, via either indirect election or the
appointment of a fixed number of members, in order to ensure adequate
representation of linguistic or ethnic minorities in the upper house and in
Parliament generally. These are generally countries where the upper house is
wholly or partially appointed.
South Africa is a country that ensures a fair representation
of its minorities in Parliament. According to the 2007 report of the Minority
Rights Group International, South Africa ranks first in the world for
parliamentary representation of minorities. Whites, for example, who make up 14%
of the population, are given 29.3% of the seats, and most of the other
minorities, including "Coloureds" and Indians, are overrepresented in
Parliament. As well, there are 11 official languages in South Africa, and the
Constitution provides for flexible mechanisms to ensure their equitable
representation, in particular that of the nine indigenous languages (in addition
to Afrikaans and English). Thanks to an active policy of including linguistic
and ethnic minorities, introduced after the abolition of the apartheid regime,
the South African Parliament has become the most ethnically representative
parliament in the world.
A voting system such as proportional representation might be
one of the ideas we should be looking at to ensure adequate representation of
francophone minority communities in the Senate. However, an important
distinction must be made. Proportional representation primarily guarantees the
representation of minority parties, meaning that the presence of linguistic
minorities would not necessarily be ensured. It would depend on how the parties
chose to submit nominations.
It should be noted that in other countries with mechanisms
for minority representation, these usually involve either a mixed system (in
other words, a combination of appointed and elected senators), or proportional
representation. The Annual Report of the Minority Rights Group International
State of the World’s Minorities shows that in 2007 a majority of the world’s
bicameral systems with guaranteed upper-house representation for minorities use
some form of proportional representation. In Canada, however, there has not been
a great deal of support for a move in this direction. British Columbia and
recently Ontario have both rejected by means of a referendum the introduction of
proportional representation into the electoral system. There are also some
countries that use a preferential voting system, or that appoint some members of
the upper house. These are certainly options to be looked into carefully if we
want to influence the debate on Senate reform bills.
The important thing to bear in mind about these few examples
is that they show there are mechanisms that the francophone minority communities
could use as a model and adapt to their needs for representation in the Senate.
However, as the premiers of Quebec and Ontario made clear in a Canadian Press
article on November 27, 2007, this type of fundamental change in the Senate must
be undertaken in consultation with the provinces and cannot be carried out
unilaterally by the federal government. On October 7, 2007, the Quebec National
Assembly unanimously adopted a resolution reaffirming that any change to the
Senate of Canada could only be made with the consent of Quebec’s government and
Furthermore, as our study has shown, a convention has been
established that francophone minority communities of several provinces have
almost always enjoyed representation in the Senate. Not only have these
communities been represented in the Senate, but they have also been represented
by senators who championed their rights and causes. Current Senate reform
proposals could reduce the representation of francophone minority communities in
the Senate. We must therefore seriously consider the negative consequences a
reform resulting in an elected Senate could have on minority representation.
Such a reform would put francophone minorities at risk of losing important
vested rights that have been cornerstones of Canada’s constitutional structure
since this country was formed. As Smith so aptly put it:
Simply stated, the reformers’ approach puts the cart
before the horse. They are attempting to remodel the institution without
studying the original constitutional blueprint, without considering how the
existing legal/political architecture will be affected, and even without
having a fully formed conception of what the end product of their efforts
will be. Such a strategy is most unlikely to improve the working of the
Senate and indeed risks worsening the situation.21
Before proceeding with a piecemeal or in-depth reform of our
Senate and parliamentary institutions, we need to ensure that francophone
minorities do not lose their rights. We must study proposals for Senate reform
by taking into account parliamentary institutions as a whole and their
underlying values, or else some Canadians, especially francophone minorities,
could end up with institutions that do not reflect their reality or concerns.
1. Stephen Harper. Proceedings of the Special Senate
Committee on Senate Reform, 7 September 2006, Issue No. 2, p. 8.
2. José Woehrling, "Les enjeux de la réforme du Sénat
canadien", Revue générale de droit, No 23, vol. 1, 1992, p. 84. See
also Janet Ajzenstat, "Bicameralism and Canada’s Founders: The origins of
the Canadian Senate" in Protecting Canadian Democracy: The Senate You
Never Knew, ed. Serge Joyal, McGill Queen’s University Press, Montreal,
3. This statement by George Brown was cited in
MacKay, The Unreformed Senate of Canada, Carleton Library, Toronto,
1927, p. 38.
4. Serge Joyal, "The Senate as the Embodiment of the
Federal Principle", Protecting Canadian Democracy: The Senate You Never
Knew, ed. Serge Joyal, McGill Queens University Press, Montreal, 2003,
5. Government of Quebec, "Mémoire du gouvernement du
Québec concernant les projets législatifs fédéraux sur le Sénat", 31 May
2007, Standing Senate Committee on Legal and Constitutional Affairs, 2007,
6. Alain-G. Gagnon, "Le fédéralisme asymétrique au
Canada", Le fédéralisme canadien contemporain : Fondements, traditions
institutions, ed. Alain-G. Gagnon, Presses de l’Université de Montréal,
Montreal, 2006, p. 289.
7. François Rocher, "La dynamique Québec-Canada ou le
refus de l’idéal fédéral", in Gagnon op. cit. p. 97.
8. Janet Ajzenstat, "Bicameralism and Canada’s Founders:
The origins of the Canadian Senate", in Joyal op. cit. p. 3.
9. David E. Smith, "The Improvement of the Senate by
Non-Constitutional Means",in Joyal op. cit. p. 260.
10. Linda Cardinal, La participation des minorités
francophones hors Québec à la vie politique au Canada : comment combler le
déficit démocratique?, Ottawa, 2007, p. 7.
11. F.A. Kunz, The Modern Senate of Canada,
1923-1965, Toronto, University of Toronto Press, 1965, p. 47.
12. Linda Cardinal, op. cit. p. 6
13. F.A. Kunz, op. cit. p. 46.
14. See the archival holdings of the ACFA in the
Provincial Archives of Alberta (PAA): ACFA, La représentation
franco-albertaine au Sénat, correspondance et documentation, 1936-1968
(PR.1980.0226/204 box 11). See also the archival holdings of the ACFÉO in
the Centre for Research on French-Canadian Culture at the University of
15. FCFA, "Vers une réforme du Sénat : de quoi inquiéter
la FCFA". Le bulletin francophone, Ottawa, vol. 17, no 1, 2007, p. 3.
16. Linda Cardinal, op. cit. p. 12.
17. Stephen Harper, op. cit. p. 19.
18. Benoît Pelletier, Canada, 2006, Proceedings of the
Special Senate Committee on Senate Reform, 21 September 2006, Issue no. 5,
19. Louis Massicotte, Possible Repercussions of an
Elected Senate on Official Language Minorities in Canada, Study by the
Office of the Commissioner of Official Languages, Washington, 2007, 6 March
2007, p. 17.
20. Cited in Linda Cardinal, op. cit. p. 12
21. David E. Smith, "The Improvement of the Senate by Non-Constitutional Means",in Joyal op. cit. p. 247.