There’s Nothing Clear or Simple About Senate Reform
by Margret Kopala

Published in the Ottawa Citizen, September 11, 2004

Having undertaken a less than stellar process for selecting two supreme court justices, the prime minister will tread gingerly in the matter of filling Canada’s Senate seat vacancies. To help him along, ideas are tumbling out of western Canada where a death knell for the Triple E Senate is also sounding. The Canadian Senate in Bicameral Perspective by University of Saskatchewan political scientist David E. Smith challenges all would-be reformers to think deeply before venturing into areas of institutional reform. Reform proposals never succeed, he says, because they lack depth and they lack depth because the analysis lacks depth.

Analysis and historical perspective, then, is what this book provides. It is also what makes this book essential reading for anyone who thinks the Senate should be reformed.

Smith writes that unlike the United States where the Senate featured equal states, Canada’s founding fathers created a bicameral system where the Senate compensated the Maritime provinces for Ontario and Quebec’s domination in the Commons.

Like its compensatory role territorially, Canada’s Senate complements the Commons legislatively. “(It) is one part of a bicameral legislature … whose houses share a common workload.” Change, then, to one house also means change to the other, says Smith, and it is the failure to appreciate this dimension of Canada’s Parliament that is the fatal flaw in most reform proposals.

The most frequently cited criticism of Canada's Senate is its lack of so-called "legitimacy". For some this means that Senators should be more representative of provinces or regions, for others it means election if only to overcome the stigma of patronage. But election of Senators in other countries like Australia and the United States to represent their states hasn’t altogether worked. “In time the Australian Senate became no more a states house than did the United States Senate,” says Smith. Partisan politics rules in both institutions - a fact further complicated in Australia where Senators are elected by a system of proportional representation which causes special interests also to rule.

In Canada, electing Senators would pose other problems. Demanding and using more powers, an elected Senate would limit responsible government, which in Canada knew no limits until the Charter. It could also usurp the role of the official opposition.

Besides, if election is the test of legitimacy, Smith says, then the governor general should also be elected. And if elected legislators are so legitimate, why do they need appointed officers to oversee their activities!

For Smith, Triple E doesn’t rate and neither does the House of the Provinces or German Bundesrat model which he dismisses as an intergovernmental administrative arrangement.

Authority for Canada’s Senate, says Smith, derives from being part of Parliament. Moreover, the true test of legitimacy is not how it is formed or whom it represents but what it does. In this respect, Canada’s Senate rates highly.

It deploys rigorous legislative oversight and superior committee work, offers a more economical alternative to Royal Commissions, provides continuity and stability while members of parliament come and go, uses its veto power discreetly (44 times in the 20th century), and it complements rather than competes with the government. In short, all its activities enhance the deliberative nature of our democracy which now, through the Senate’s many public hearings, increasingly includes being an instrument of citizen participation in government.

Professor Smith concedes improvements are necessary, particularly in the selection process. The Fraser Institute’s Gordon Gibson, also no fan of elected senators but a proud booster of British Columbia’s Citizens’ Assembly on Electoral Reform, agrees and is calling for the creation of a Citizens’ Assembly to tackle this and other possible reforms to the Senate.

Gibson’s proposal, like that made by NDP leader Jack Layton on electoral reform, has merit. From determining salaries and pensions to electoral and constitutional reform, politicians are in conflicts of interest. Appointing supreme court justices, senators and governors general also conceivably present conflicts. Recommendations from a Citizens’ Assembly accepted in a national referendum would certainly give our governments a clear mandate on which to act. In the first instance, though, the prime minister could simply ask it to make the next round of Senate selections.

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