The Canadian Senate: the downfall of an institution?

Toronto’s controversial mayor Rob Ford is not the only politician in the limelight in Canada. An avalanche of scandals in the Senate has reinstated the debate between Senate reformist and abolishers. This institution has been the hub of some heated debate and bold moves by the official opposition, the Liberal party, and Prime Minister Stephen Harper’s Conservatives, both trying to capitalize on the issue. Regardless of party affiliations, Canadians must push forward the debate to obtain a reform providing them with a Senate that will go back to its roots and represent the minorities and the provinces, which ought to be achieved through the introduction of a proportional voting system.

Starting in 2012, a series of expenses scandals[1] have tainted five senators. The most prominent case being Senator Mike Duffy’s ridiculous expenses, which he claimed he repaid immediately only to be plunged in yet another scandal. In fact, to repay his ineligible housing allowances and other expenses, Duffy received a 90,000 $CAD personal check from the (now former) Prime Minister’s Chief of Staff Nigel Wright. Although the Royal Canadian Mounted Police (RCMP) has dropped the criminal charges for fraud, bribery and breach of trust on Mr. Wright, this unethical financing from such a high party member, to protect the party’s image, is more than hardly frowned upon. While Duffy chose to resign from the party’s caucus and remain in the Senate independently, Wright had no choice but to resign. A year later, in 2013, Senator Pamela Wallin (Cons.) was denounced by the auditing firm Deloitte of submitting fraudulent expenses, while both former Senators Harb (Lib.) and suspended Senator Brazeau (Cons.) were charged with fraud and breach of trust.

Gloomily, these frauds are a common thing in democracies around the globe, and its perverse effect are the loss of trust and legitimacy in the civil servants, their office and to a certain extent the democratic system, which can be measured by the ever-growing election absenteeism. Nonetheless, rarely do these scandals put in jeopardy the existence of the very institutions harboring them, especially in the so-called “developed world”. In Canada, these scandals ignited a country-wide debate over the reform and even the possible abolition of the Senate. Would such an amendment in our constitutional democracy be a good idea? The Senate plays an important role in our bicameral democratic system, but it desperately needs a reform to bring it back to its true purpose: a chamber representing, and accountable, to both the minorities and the provinces.

The roots

This debate has been going on for years, some would even argue since the Confederation itself. Money scandals have the tendency of captivating and exacerbating public opinion on subjects that may not always be of main interest. At its creation in 1867, the Upper House was devised to represent the provinces in an uneven Confederation. This compromise was established to make sure a given province (Ontario at the time was more populous) would not solely decide on tariffs and other significant matters. Therefore, the Senate was created to balance the uneven powers in the House of Commons, or to counter the tyranny of the majority. As other provinces joined in, they were attributed seats in the Senate, which was originally distributed into four divisions, each of 24 seats: Quebec, Ontario, the Western Provinces and the Maritime Provinces. Today, of a total of 105 seats, Ontario and Quebec, each kept their 24 seats; New Brunswick and Nova Scotia have 10; Alberta, British Colombia, Manitoba, Saskatchewan and Newfoundland have 6; Prince Edward Island 4; and Yukon, Northwest Territories and Nunavut (the newest territory created for and populated by the Inuit peoples) have only 1. This distribution of the Senate is neither representative, nor proportional, but this scheme has a purpose. At its genesis, the Senate was devised to please the parties bargaining and to represent the provinces according to their status. An evolution of this body is inevitable.

Senators are appointed by the Governor General, representing the Queen in (of) Canada, but on the Prime Minister’s “suggestion”. No need to say that the former never went against the latter’s will in nominating a senator and that the latter always chooses someone from his own party. Evidently, every PM tends to sway the Senate in his favor, and given the recent political history, Liberals and Conservatives have taken turn in flipping the Senate their way. Harper has excelled in this matter, appointing 52 senators in eight years; the closest any other Prime Ministers got to that record was Liberal Jean Chrétien with 23 over a 10 years period. Regardless of the numbers, the Senate’s independence, just like its secularity[2] has to be sacred. Pun intended.

Traditionally, the Senate plays four main roles: it revises legislations; makes enquiries; represents the regions; and protects minorities. Undeniably, its central role is to approve legislation coming from the Lower Chamber, but it also has the power to introduce bills, with the strict exceptions of financial issues and constitutional reforms. Consequently, many have described this Chamber’s most important task as giving a “Sober Second Thought” on legislations. This is indeed their most interesting purpose; where it has undoubtedly done some interesting, indebt analyses of important issues on a wide variety of subjects, ranging from Indian affairs (what, to be politically correct, should be called First Peoples or Aboriginal affairs) to public health issues.

The first two roles are sound: it imposes a check on the Lower House and gives a second reading or double checks a given legislation before it passes. What about the other two? The Canadian Senate clearly doesn’t represent the provinces or the many minorities anymore, nor does it represent any particular electorate. As a matter of fact, appointed senators merely represent their party’s interest and are almost all blindingly loyal to it. Nominations are pure political calculations made by Prime Ministers to skew the playing field in their favor by flooding it with people that are not only party-friendly, but loyal to the elite of that party. It’s outright political patronage gaining on representative democracy.

The fight for reform

Ever since the Confederation, a democratic stagnation has afflicted the Senate while the rest of our institutions evolved. The result is that it is now either bound to be seen as a useless rubber stamp of the House of Commons or an ill-advised institution stepping out of its boundaries if it tries to oppose the MPs. The Senate is key in the balance of our democracy, but protecting the minorities and representing the provinces cannot be achieved if the members of this House are appointed by a bias Federal Prime Minister. Therefore, it must be reformed before its loss of credibility brings it down.

With barely a year before the Federal elections, the two main parties are battling over the ownership of a solution to this quandary. In a controversial and bold move earlier this year, Official opposition leader Justin Trudeau decided to revoke all ties with his 32 senators, in what he calls an effort to render this body more independent, thus aiming to be the most reform-driven party, saying: “The only way to be a part of the Liberal caucus is to be put there by the people of Canada”. On the other side of the chamber, Stephen Harper is seeking to get back on top of the surveys, strong-arming the debate by reforming the Senate unilaterally. In the hope of finding a swift answer to the Senate’s plights, Harper wanted to impose a reform on term limits and consultative elections.

Both leaders fight with the weapons that correspond to their means. Trudeau, as the opposition, only has power within his party and therefore was limited to this bold act. Harper, with his majority, uses his position to impose his vision, as he does on most issues. In order to do so, he presented to the Supreme Court legal arguments attesting that he did not need the consent of the provinces to reform the Senate. In April 2014, the Supreme Court ruled Harper’s demand as unconstitutional. As a repercussion of its decision, the Supreme Court might have, most likely unintentionally, sent this debate forward to the 2015 Federal campaigns. Regardless of who wins this debate, Canadians need a reformed Senate that will represent the provinces and the minorities, while counterbalancing the House of Commons.

How to reform

The senate’s reform should be multidimensional and will certainly be a complex endeavor. Indeed, many aspects could benefit a reform: appointment, term limits, expenditures and the unused veto[3], to name just a few. But reforming such an institution is no small task. It means amending the constitution.

Contrarily to what one would think, there are five different formulas to amend the Constitution. The one favored by the provinces, and as a result of the Supreme Court’s decision now the “default one”, is to get the consent of at least seven of the provinces representing at least 50% of the population. Since 2006, Harper has tried to impose his two minor reforms that would hardly change a thing, if not to make him seem more legitimate in the eyes of the population. Firstly, as some provinces have done in the past, to hold a provincial consultative vote for senators and passing the results as a list of possible candidates for the PM to choose from, only gives a mock image of representativeness. It would be absurd to trust only the PM’s good will when filling a position in the Senate and believing that this vote would promote the senators accountability and responsibility to the electorate and not the PM who chose to select him or her. Secondly, imposing a term limit on appointed senators is obviously a good idea, but then again, whatever term limit one imposes cannot exchange the senators’ loyalty to the PM for accountability.

On the delicate matter of abolishing the Senate, a balancing piece of this democracy, the Supreme Court declared that only a unanimous decision by all the provinces would be deemed satisfactory.  This sets a precedent against a unanimous decision by the federal, while keeping some leeway to make the potentially needed changes possible in the future. Abolishing this institution would be a big mistake, especially if you can remold it into a democratic safeguard.

The question of proportional representation

As I have mentioned above, many things could, and probably should, be reformed in the Senate, but I strongly believe the most efficient way to democratize it, is undoubtedly by giving the people the choice of selection, through a ballot. This would make the Upper House an accountable, representative and legitimate chamber. We have to be careful here, the goal is not to create a second chamber as legitimate as the first one; the House of Commons has to stay the main decisive body. The objective is to give back its true meaning to the Senate and to recapture the essence of bicameralism. In order to do so, I support the idea of bringing the Senate back to the polls by using the Single Transferable Vote, the best suited proportional voting systems.

There is a high quantity of voting systems used around the world. Canada, the United States and the United Kingdom use a single-member legislative district, in a plurality-majority or what is dubbed a first-past-the-post election. Simply put, this system divides the country or provinces into districts of uneven proportions, where only one member will be elected and the winning party is the one who wins the most districts. It is called first-past-the-post, because the winner does not need a majority, but only to have more votes than his competitors. This method has some pros and cons. In a parliamentarian system where votes are highly divided, this system enables a parliament to have a definite leader who will be able to make decisions, even if in minority, ensuring a stable authority to rule effectively. On the other hand, a party can win by one vote in some districts, and lose by thousands in another, regrettably allowing a party to be elected with fewer votes than its opponents. In addition to this lack of proportionality, it definitively leaves no space to minorities, whose votes fall unnoticed, as a drop in the ocean.

Therefore, I support the idea of a representative vote, one where each vote counts. There are three types of representative voting systems, but the clear choice for the Canadian Senate would be the Single Transferable Vote (STV-PR), as Australia uses in its Parliament. This system operates with multimember districts (more than one member gets elected in a given district), where the quantity of seats obtained is proportional to the number of votes the party gets. The difference between the three PR methods lies in the means of achieving the results. It is simple on the voters’ side, although a little more complex for those counting the votes. Each voters rank their candidates in order of preferences. After the first candidate succeeds in obtaining the established threshold[4] to be elected, the remaining votes are redistributed to the next in line and so on, until all the seats are filled by the candidates who received the highest number of votes. This system, compared to other proportional system, really allows the preferred candidates to win and gives a proportional representation of the voters’ choice.

The essence of Bicameralism is to have the different houses representing different interests. Appointing senators, even if they represent a minority, will never lead to an effective representation, but will only serve to perpetuate the two-party internal fighting. The best way to ensure that the Senate represents the minorities is undoubtedly by having a STV-PR system. Additionally to its efficient representativeness of minorities, this system has proved time and again it adequately promotes the inclusion of a greater number of parties, of independents and of ethnic or gender minorities.

Complementarily, introducing a vote would render the elected senators accountable to their electorate and make them work towards earning the right to stay in their post for as long as the people they represent deem adequate. This could simultaneously replace the term limit and realign the senators’ allegiance towards the citizens, thus establishing a direct representation of the provinces.

Thus, it is clear that evolving the senate to a chamber of proportional representation through the STV-PR voting system is a sound idea that would give legitimacy to the Senate and bring it back to its fundamental task of representing the provinces and the minorities in a bicameral democracy. While the distribution of seats to the provinces is not representative of the population, it assures the legitimacy of the House of Commons, which remains the main democratic governing body. Reforming the seat allocation would be a good idea, but first things first: the pressing matter is saving this institution by restoring some legitimacy through a representation of the senators, accountable to the provinces and the minorities they claim to embody.

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[2] As of 2014, in Great Britain, 92 Lords still have seats the House due to their birthrights, and 26 are Spiritual Lords (2 archbishops and 24 bishops).

[3] A law can be vetoed indefinitely by the Senate; this house has to ratify it for a law to be enacted. It is important to note here that they have not used this right of veto since 1939. Nowadays, the Senate only adds clarifications, and rarely makes any amendments to bills.

[4] Different thresholds apply to different systems and in different countries. The effect can be to deny entry to parties considered too small or to force them into coalitions.

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