The Canadian Senate: Archaic Deadweight or Guardian of Rational Government?
Image By: The Canadian Encyclopedia
In an ornate mahogany room, beneath a vaulted ceiling echoing the great chapels of Europe and flanked by chairs and carpets of classically-Canadian crimson, sits the Senate of Canada. Its benches are thronged by stuffy, usually unknown appointees; its sessions are plagued with amendments, rarely policy-making. Senate meetings echo insurance seminars, in which quibbles over precise wordings take tedious precedence.
Yet the Senate remains one of Canada’s most important institutions, and one the country cannot, under any circumstances, wish away.
This flies in the face of much public opinion. Average Canadians’ sentiments vary from apathy to dislike – some 24% wish it did not exist, and only 45% believe Canada actually needs it. During those discordant days of the Duffy spending scandal, outright hostility reached a fever pitch, but the general tone of Senate discussion amongst Canadians has consistently been one of profound indifference. The Senate has, quite insecurely and ineffectively, responded by commissioning illustrated children’s books to justify their chamber.
The Senate can be honest about its origins: it was conceived as a check on the excesses of Canadian democracy, with John A. McDonald outlining it as the venue for “sober second thought” in Canadian politics. This venue was, in many respects, a copy-and-paste of the British House of Lords. Its design was fundamentally elitist, requiring property ownership and thereby concentrating eligibility primarily to a nineteenth-century landed elite. And like the Lords, the Senate does not, as stated in the 1867 British North America Act, have the ability to originate bills that involve taxation; ergo, it is an intentionally weaker body than the Commons. This is as it should be. The Senate is not accountable, and thus has no right to draw money from citizens. Rather, its more subtle powers have clearly functioned as important checks at key intervals in Canadian history.
The stonewalling of the Tories’ 1988 free trade bill resulted in perhaps the most contentious economic issue in Canadian history being given a functional plebiscite at the ballot box. It was a decidedly democratic overture that our system happily foregoes when there is no meaningful check on majority governments in the Commons. Vitally, Canada’s liberal abortion rights exist only because a leery Senate failed to pass a rushed 1991 Act which would have instead made them on par with American post-Dobbs states like Mississippi. These actions loom large because they are so rarely invoked, but mark important interventions at decisive moments in recent Canadian history, despite coming from the deeply flawed body it was then.
But the Senate’s mission – to scrutinise and augment, but not overrule, legislation – remains its central prerogative. That job depends on the body bearing the legitimacy to do so, and not becoming the expensive but pointless rubber-stamp of so many other upper houses. The Senate was heading that way. So, in 2015, Prime Minister Justin Trudeau’s Liberals undertook the onerous but thankless task of reforming the body – one which cannot be altered at its core without summoning the most dreaded spectre in Canadian politics, re-opening the constitution. They did so in creative fashion. The body has changed by convention: Liberal Senators were removed from the party caucus, and thus no longer bound to party instruction and whips. New self-imposed public disclosure models ensure Senators are judged for spending or ethics violations. It has also changed by systemic adjustments: appointments have been made non-partisan, where independent committees recommend qualified figures. No longer can Prime Ministers promise friends a seat over scotch and cigars in some backroom. And in the place of the old two-party system, where Commons debates needlessly repeated in a different-coloured room, a flourishing array of free and unwhipped groups like the centrist Canadian Senators Group, the left-wing Progressive Senate Group, and the reformist Independent Senators Group increasingly throng the benches. And, if you would like to be a Senator, you can now even apply online yourself. An antiquated House of Lords, clearly, this body is no longer.
Yet those who see only an elected Senate as the remedy for former woes, like former B.C. Premier Christy Clark, remain unconvinced. It does not matter that the Senate has never been such a diverse body representing Canada’s multicultural, especially Indigenous, identities. It does not matter that it has never submitted as many successful amendments as it now does – ensuring everything from greater disabled Canadians’ rights in appealing aid denials to protections against rash revocation of citizenship. It does not matter that it has fulfilled its role by ensuring that bills like C-48, an effort to make bail harder to obtain which is currently under Senate review, actually include studies of conceivably germane factors like “crime rates.” The democratic Commons passed that bill unanimously and with no investigation by our public representatives; it is the Senate that has bravely pressed for informed policymaking and stakeholder consideration over easy overtures to fleeting public outcry.
If democracy only means that those who make decisions for the country are duly elected, the Senate, and indeed a great many powerful institutions from the Supreme Court to the unassuming halls of policy implementation around the nation, are positively dictatorial. The truth is that we allow a great degree of power to be wielded by those we may not know and never voted for, because they play a unique role in governing. Politicians campaign to make policy and promises, but we trust unknown civil servants to shape their imposition free of partisan influences or demagogic grandstanding. We trust courts under common law to judge their legitimacy and throw them out if they have grown obsolete. We are, right now, witnessing the most effective and well-run Senate in the history of Canada precisely because mechanisms are in place to minimise partisanship at the moment our elected politics are becoming the fraughtest in years. Senatorial conventions should, of course, continue their evolution – it would be welcome if the Conservatives, too, de-caucused their members – but the achievements made within the confines of non-election have revealed that very aspect to be a boon for reform.
For if we pursue a democratic model, Senators would no longer have a sole allegiance to institutionalised prudence, and a self-restraint in their ‘rule’ conducive to targeted actions, but rather to party donors, leaders, and reactionary whims of public opinion. The same politicking impetus that leads to rushed bills in the Commons like C-28 or explicit overtures to reactionary voters as in 1991’s abortion ban would plague our nation’s key public-facing review body. And, depending on the party distribution that voters send to each half of Parliament every election, federal movement on any idea could either become positively glacial under divided houses or move at light speed under uniformity. Neither scenario bodes well.
If we pursue the Senate’s elimination, there will be zero check at all for a potentially tyrannical action until it bounces its way up the courts. The Senate’s amendment process is already susceptible to shirking by gung-ho governments, perhaps partly due to a lack of public demand that Senate decisions be respected. If there is none at all, the centralising trend of power in the Office of the Prime Minister over the last fifty years will continue unchallenged. The whips’ sway over Commons members will mean more top-down legislation by majority parties or coalitions, voted on by members too cognizant of biting the hand that feeds to challenge them. There will be no momentum for painful but necessary scrutiny of legislation when it only means more work for anxious MPs looking to return home for the summer and canvas their ridings.
The Senate spent 148 years in the arcane shadows of policymaking. It has had just 7 years of maturity. It is only fair, only prudent, that we permit it our time and our trust to show how its modern form can fulfil that ever-aspirational Canadian ideal of ‘peace, order, and good government.’