Senate of Canada
The Senate is the Upper House of Canada's Parliament. Its 105 members are appointed and hold their seats until age 75. The Senate's purpose is to consider and revise legislation, investigate national issues, and most crucially according to the Constitution — give the regions of Canada an equal voice in Parliament.
The Senate is the Upper House of Canada's Parliament. Its 105 members are appointed and hold their seats until age 75. The Senate's purpose is to consider and revise legislation, investigate national issues, and most crucially according to the Constitution — give the regions of Canada an equal voice in Parliament. Long regarded by many Canadians as a place of unfair patronage and privilege, the Senate is a controversial institution; an unresolved debate continues about whether it should be reformed into an elected body accountable to the voters, or abolished.
Senators are appointed by the governor general on the advice of the prime minister. To qualify for appointment they must be Canadian citizens, at least 30 years old; have real property worth $4,000 free of mortgage and a net worth of at least $4,000 (amounts unchanged from when they were first enacted during Confederation in 1867); and reside in the province or territory for which they are appointed.
In Québec (which is divided into 24 senatorial divisions) Senators must reside or have their real property in the division for which they are appointed.
Senators lose their seats if they become aliens; become bankrupt, insolvent or public defaulters; are convicted of felony or any "infamous crime"; lose their residence or property qualification; or are absent for two consecutive sessions of Parliament. They receive a salary of $135,200 (as of 2014) plus additional pay if they hold special offices in the Senate (such as government or opposition whip or leader), as well as other expense and travel allowances.
Located on the eastern end of Parliament's Centre Block, the Senate chamber is adorned in royal red (versus the green of the House of Commons). It is where senators meet and debate, and where the Canadian sovereign or their representative the governor-general addresses Parliament and delivers the Speech from the Throne at the beginning of every new session of Parliament. This is also where the ceremony is held to install a new governor general.
Proceedings in the Senate chamber, and the proceedings of most senate committees, are open to public viewing.
The chamber is an impressive architectural hall, with intricately-carved oak panelling, two massive bronze chandeliers, and a marble bust of Queen Victoria, Canada's Queen at the time of Confederation, surveying the chamber from above the speaker's chair. Most stunning are eight, huge oil paintings on the main walls of the chamber, depicting scenes of Canadian sacrifices during the First World War.
The Senate was created under the Constitution Act, 1867, primarily to protect regional interests but also to provide what George-Étienne Cartier called a "power of resistance to oppose the democratic element." The House of Commons was to be elected on the basis of representation by population. In 1867 Ontario was the most populous, fastest-growing province, but Québec and the Maritimes were more important to the national economy than their population suggested. They dared not leave matters such as tariffs, taxation and railways to the mercy of an Ontario-dominated Commons, and they insisted on equal regional representation in the Upper House. Without that guarantee there would have been no Confederation.
The Senate is therefore designed to balance out the power of the Commons, by giving voice to and protecting the rights of Canada's regions, particularly regions with small populations that do not have strength-by-numbers in the Commons.
Of the 443 seats in Parliament (as of 2016), 338 or three quarters are in the Commons, while 105 or one quarter are in the Senate. Senate seats are divided equally among four "divisions:"
Québec Division — 24 seats
Ontario Division — 24 seats
There are also nine additional seats representing regions that were not part of the Divisions originally created at Confederation — (Newfoundland and Labrador—6, Northwest Territories—1, Yukon—1,Nunavut—1)
Today, although senators are technically appointed to represent a region, they also tend to sit as members of political parties, either government or opposition, depending on whether their party holds power in the Commons. As a result the Senate has operated for much of its history as a partisan political body — its members following instructions from their party leaders in the Commons — rather than as originally intended, as an independent voice for regional interests. This has also fuelled demands that it be reformed or abolished.
Despite its regional focus, the Senate was not set up to represent provincial governments or legislatures, or to protect the provinces against federal invasion of their powers. The courts protect provincial powers, and the protection of provincial interests in matters under federal jurisdiction sometimes falls to the ministers from each province in the federal Cabinet. Canada's first Cabinet had five senators out of a total of 13 ministers. From 1911 to 1979, there were seldom more than two, often only one senator in the Cabinet. In 1979 the Conservatives were so short of Québec and French Canadian members in the Commons that they had to eke out their Québec and French Canadian representation in the Cabinet with three senators; from 1980 to 1984, the Liberals were equally short of western members and did the same.
Sober Second Thought
The Senate was also intended to provide "sober second thought" on legislation introduced in the Commons. One of its most effective functions is the quiet, in-depth study and review of national issues (including the hearing of expert witnesses) by Senate Committees. Committees go over proposed bills clause by clause and often hear voluminous evidence, sometimes over a period of months. Committees are usually non-partisan and can draw on a vast reservoir of members' knowledge and experience: former federal and provincial ministers, former members of the Commons and provincial assemblies, veteran lawyers and business people, farmers, women and ethnic representatives, and even an occasional trade unionist. Senate committees have produced careful studies on unemployment, land use, science policy, poverty, aging, the mass media (see Communications) and Indian affairs. Senate investigations have often led to important changes in government policy or legislation.
The Senate has almost the same powers as the House of Commons. Bills are read three times in the Commons as well as in the Senate. The Senate can only delay constitutional amendments for 180 days. But no bill can become law without its consent, and it can veto any bill as often as it likes. The Senate cannot initiate money bills (taxes or expenditures). Neither House can increase amounts in money bills. The Senate has not vetoed a bill from the Commons since 1939. The Senate now very rarely makes amendments of principle. The amendments it does make to bills now are almost always related to drafting — to clarify, simplify and tidy proposed legislation.
In 1987 the Senate temporarily blocked Bill C22 (pharmaceutical patents) but eventually agreed to amendments. In 1990 the Liberal dominated Senate effectively blocked plans of the Conservative government to pass the legislation for the unpopular Goods and Services Tax (GST). This led Prime Minister Brian Mulroney to use his power to fill eight vacant senate seats, in order to ensure passage of the legislation in 1990.
The Senate's legally absolute veto was expected to be really no more than a delaying veto because, until the late 1860s, governments were usually short-lived, and none, it seemed, would be able to build up a large enough majority in the Senate to block a successor government of the opposition party. But most Canadian governments since then have been long-lived, and as appointments are almost invariably partisan. The Senate has often had a large opposition majority, and also, through much of the late 20th Century, a heavy preponderance of Liberals. Since the election of Stephen Harper's Conservative government in 2006, however, party power in the Senate has shifted. By 2016, there were 42 Conservative senators, 25 Liberals, 21 independents and 17 vacancies.
A traditional objection to the Senate is that too often its members are given seats in the Chamber as a reward for service or loyalty to the party of the prime minister of the day, and that such patronage appointees have no right to a position of authority in a modern democracy.
Proposals to make the Senate more representative of regional interests were introduced by the Liberal government in 1978 but received little support. An appointed rather than an elected Upper House, with a legal absolute veto on legislation, has come to seem anomalous, whatever its original purpose. A push for Senate reform was resurrected in the constitutional debates of the late 1980s, and widely debated during the struggles over the Meech Lake and Charlottetown Accords.
Some provinces proposed that Senate appointments be turned over to the provincial governments. Senators could act as provincial representatives, defending regional interests. Critics charged that such a system would run counter to the principles of federalism and representative democracy. In the long negotiations over the Charlottetown Accord, the proposal for a so-called "Triple-E Senate" — elected, effective and equal — championed particularly by Alberta premier Don Getty, became a primary focus of debate. Following the collapse of the Meech Lake Accord, Alberta held a provincial election to fill a vacant Senate seat. Although not constitutionally bound to do so, Brian Mulroney appointed the nominee, Stan Waters, to the Senate in 1990. Since then Alberta and British Columbia have held further non-binding Senate elections, out of which a list of names is given to Ottawa for consideration, whenever Senate seats from those provinces become vacant.
Under the present Constitution, turning the Senate into an elected House would require a constitutional amendment and therefore the consent of seven provincial legislatures, representing at least half the population of the 10 provinces. So, too, would any change in the Senate's powers, or in the number of senators from any province.
Reform Under Harper
The government of Prime Minister Stephen Harper tried twice since 2006 to reform the Senate, each time by submitting legislation through Parliament that sought to avoid a constitutional amendment. Harper's first Senate reform bill was delayed in the then-Liberal dominated upper house, and never became law. His second attempt — Bill C-7, the Senate Reform Act — was introduced in Parliament in 2011. The bill would have limited Senate terms to nine years, and allowed provinces to elect their senators, if they chose to do so.
By the end of 2013, the bill had not been debated in Parliament for many months, but had come under renewed scrutiny because of a high-profile scandal involving the Prime Minister's Office and three Harper-appointed senators accused of filing improper expense claims (see below: "Expense Scandal").
As the scandal was underway, the Québec Court of Appeal, acting on a request by the Québec government, issued a ruling in October 2013 that Bill C-7 was unconstitutional. The Court said the bill's proposals require a formal constitutional amendment, not mere parliamentary legislation, if they are to be enacted. The following month the Supreme Court of Canada, acting on a request from the federal government, opened its own hearings into Bill C-7 to determine whether the Senate can be reformed without a constitutional change process — which by its nature would force Ottawa into negotiations with the provinces.
The federal government also asked the Court for direction on how the Senate could be abolished. The Harper government argued that under the Constitution, abolition only requires the approval of Parliament plus seven provinces representing 50 per cent of Canada's population. Most provinces, however, say abolition requires the formal consent of all 10 provinces.
The Supreme Court issued a unanimous decision on the matter on 25 April, 2014. The Court said creating an elected Senate with nine-year term limits required the consent of seven provinces with 50 per cent of the population. And it said abolishing the Senate required the consent of all 10 provinces. In each case, a constitutional amendment would be necessary.
"The Senate is a core component of the Canadian federal structure of government," the Court said. "As such, changes that affect its fundamental nature and role engage the interests of the stakeholders in our constitutional design - i.e. the federal government and the provinces - and cannot be achieved by Parliament acting alone."
Harper called the ruling "a decision for the status quo." He said there was little likelihood of Senate reform under his government, because the country had no interest in constitutional negotiations that would be required to achieve it.
Reform Under Trudeau
In January 2014, federal Liberal Leader Justin Trudeau expelled his party's then-32 senators from the Liberal Party parliamentary caucus (which had included Liberal members of both the House of Commons and the Senate), saying senators who had previously served as Liberals would instead become independent members. The change effectively freed Liberal senators from having to vote along party lines – theoretically reducing the Senate's role as a partisan body. However, critics said Trudeau made the change not in the spirit of reform, but to distance himself and his party, in the months preceding a federal election, from the expenses scandal that was tarnishing the Senate's image at the time.
Following this change, the Liberal senators divided themselves into two camps – one group sitting as independent senators, a larger group choosing to call itself the Senate Liberal Caucus (albeit removed from the Liberal caucus in the House of Commons). Many Liberal and independent (former Liberal) senators remained card-carrying members of the Liberal Party of Canada. There was no similar change applied to Conservative senators, who were still members of the Conservative Party parliamentary caucus.
After becoming prime minister, Trudeau in 2016 appointed 22 new independent senators. The first seven of the new group were chosen by a Trudeau-created Independent Advisory Board for Senate Appointments. The remaining 15 were picked by the Advisory Board under a new process in which more than 2,700 Canadians applied for Senate jobs (the first time the government had issued a general public call for applications for Senate membership).
One of the first seven appointments, Peter Harder, became the Trudeau government's "representative" in the Senate – responsible for stewarding government legislation through the upper chamber. Previously, the senator in Harder's post was known as the "government leader in the Senate" and was usually a member of the federal Cabinet. They could command party members in the Senate to support government legislation. Harder would have no such caucus to command – therefore it remained unclear at the time of his appointment how the Liberal government intended to steer its legislation and its agenda with any confidence through Parliament's upper house.
As of November 2016, the Senate's 105 seats were divided among 40 Conservatives who constituted the Opposition in the Senate, plus 37 independents and 21 Liberals. There were also seven vacancies. Once Trudeau fills those vacancies, the Senate's non-partisan members will hold power in the upper chamber with 44 seats among independents.
In November 2013 the Senate voted to suspend Conservative senators Mike Duffy, Pamela Wallin and Patrick Brazeau, as part of a widening scandal into alleged improper expense claims for housing and travel allowances by these and dozens of other Conservative and Liberal senators. Brazeau, Duffy and former Liberal senator Mac Harb were also charged with alleged crimes including fraud and breach of trust in relation to the expense scandal.
Duffy was tried first, and acquitted of all charges in court, and reinstated as a senator (putting the prosecution of the other cases in doubt). However, Duffy's trial highlighted the lax rules and enforcement governing how senators spend Senate funds, prompting renewed demands for the institution to modernize its internal financial controls.
The Duffy trial occurred in the wake of a 2015 audit of senate expenses by the federal Auditor General, who said 30 former and sitting senators had been improperly reimbursed a total of $992,000 in expenses. Many of the senators repaid portions of their disputed expenses. Fourteen others appealed the Auditor General's findings to a binding arbitration process led by retired Supreme Court of Canada justice Ian Binnie. Binnie ruled that 45 per cent of the expenses questioned by the Auditor General were in fact legitimate Senate expenses. However, each of the 14 senators who disputed the claims against them still had to pay back a portion of their reimbursed expenses – an amount totalling $178,000.
The expenses scandal, and the Duffy trial, dominated public discourse in Canada through much of 2014, 2015 and 2016, and may have contributed, some observers said, to the defeat of Prime Minister Stephen Harper's Conservative regime in 2015. It also put pressure on the Senate to establish clear, enforceable rules for travel and living expenses, and for stricter rules requiring actual residency in the provinces that senators are appointed from.
The scandal also raised questions about the personal or political work that many senators do, such as partisan campaigning, professional career work, or serving on corporate boards. The affair raised questions about whether senators should be required to abstain from such practices and instead devote themselves full-time to Senate business during their tenure in Parliament.