the stakes of Senate reform

In case you missed it yesterday, the Supreme Court just dropped a landmark ruling on Senate reform (tl;dr – the federal executive can’t unilaterally alter the institutional structure of Canada, which is a ruling that should surprise nobody). Now that we have a clear picture of what constitutional reform would require in Canada, I thought it might be interesting to revisit some of the work I did in my Canadian politics comprehensive exam about the functioning of Parliament (i.e. the Commons and the Senate) and some possibilities for reform. I’m not exactly holding my breath here – constitutional reform in Canada has been, historically, nothing short of a nightmare – but I think what I have here at least sets up a discussion of what it is that we’re trying to reform, and why. You’d be surprised how much of this gets lost in the public debate (God knows I never thought/cared about much of this until I was forced to sit down and study it).

For the record, I think something definitely needs to be done with the Senate – the current arrangement is obviously not working for a host of reasons. But I’m uncomfortable with proposals to neuter it or abolish it altogether, because I think it’s the only federal institution capable of giving regions/provinces a productive counterweight against the federal government, and in this sense abolishing the Senate would actually make democracy in Canada, broadly speaking, worse instead of better. I’m including a discussion of the House of Commons here too because I really do think you can only make sense of the Senate as part of the greater representative unit that is ‘Parliament’.

[I left the citations in here because I didn’t feel like going through and editing them out, but I also didn’t feel like going through my bibliography to take out the sources to include them here at the end. On the off chance you’re reading this and you actually care where I’m getting this information, hit me up and I can connect you with the sources.]

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For obvious reasons, institutions of parliamentary government have been the subject of intense study in Canadian political science. Since at least the 1950s, they have also been the centre of (often acrimonious) debates on how best to reform them to function more in line with ‘democracy’, however it is defined. As many scholars have observed, debates about the proper functioning and role of the Commons and Senate are really debates about how best to represent different visions of Canada.

What, exactly, the House of Commons is supposed to do, and whether or not it is any good at doing it, hinges largely on the observer’s conception of democracy and the role of government in society (and society in government). C. E. S. Franks gives the most catholic defence of Parliament, specifically admonishing would-be democratic reformers from tampering with its (necessarily) executive-dominant design (Franks, 1987: 6).¹ Franks insists Parliament should remain executive-dominant – and that the reach and power of the cabinet outside of the legislature should be expanded – because it is the best vehicle for Canadian nation-building. An elite-centred “central [parliamentary] government, (…) especially the prime minister and cabinet, are the main institutions and forces holding the country together and asserting a national purpose, national standards, and national concerns over and above those of provinces, regions, and particular groups” (ibid.: 268).

Though less reverent than Franks, David Smith agrees that “the House gives institutional expression to the concept of a national community. (…) The House of Commons symbolizes the unity of the Canadian people achieved through the conversion of individual acts of voting. By incorporating the people, the House creates the Nation” (Smith, 2007: 5-6). This ‘incorporation,’ however, is the site of a contest over the meaning and practice of ‘democratic sovereignty’ by three distinct visions: ‘parliamentary democracy’, ‘electoral democracy’, and ‘constitutional democracy’ (ibid.: 142). The British model of parliamentary supremacy rests on a substantive degree of public trust in their representatives, and as deference to authority waned, so did the institution’s legitimacy with the Canadian public (ibid.: 7). The Canada West Foundation puts it bluntly: “Canadians lack (…) confidence in, and respect for, their institutions of government” (Canada West Foundation, 1994: 2).

As a result, parliamentary democracy has come under fire from two competing conceptions. ‘Constitutional democracy’ is the name Smith gives to the view that the Charter of Rights and Freedoms has “[created] a constitutional state [that] replaces a defective form of governance by depriving legislatures of their general supremacy over the essential features of liberal democracy” (Smith, 2007: 10); conversely, ‘electoral democracy’ sees more direct, populist control over the legislature as superior to either constitutionalism or representative democracy (ibid.). The conflict between these competing visions of “who rules?” came to a head in the 2008 ‘Coalition Crisis’ (see: Russell and Sossin, 2009).

It is also not clear what nation is represented in Parliament. Andrew Sancton has argued that approximately 61% of Canadians are underrepresented in the House of Commons due to “the pressures of regional politics [working] to undermine Canada’s commitment to the principle [of representation by population]” (Sancton, 2010: 1); he suggests this undercuts Canadian democracy and should be remedied by “a provision allowing provinces to lose seats in the House of Commons in accordance with changes in their populations” (ibid.). This is a problematic attitude for a number of reasons. Most immediately, it would obliterate the representation of smaller provinces, already comparatively marginalized in the Commons. David Gussow (2012) suggests the need to strike a balance between fair representation and maintaining representation for smaller provinces and groups, which is a view backed by the Supreme Court of Canada; as it stands, Canada’s institutional commitment to group rights has meant the Supreme Court has “allowed for greater deviations from equality between electoral districts than are tolerated south of the border since (…) the 1960s” (Williams, 2005: 28) in order to secure more effective representation for distinct ‘communities of interest’. The representative capability of the House of Commons is also challenged by high levels of public disenchantment with government institutions, as well as consistently low voter turnout (Docherty and White, 2004).

But the blanket liberal egalitarianism of Sancton’s suggestion is also problematic from the perspective of representing distinct nations within Parliament. Although (until recently) the Québécois nation was represented fairly effectively in Parliament by the Bloc Québécois (Gagnon, 1996), it would do nothing to address the lack of federal representation among indigenous peoples. How to even go about addressing this problem is conceptually complicated; as Melissa Williams notes, “egalitarian inclusion through shared representative institutions [and] political autonomy through separate representative institutions (…) appear to be mutually exclusive political goals” (Williams, 2005: 28). While both the 1991 Lortie Commission and the Charlottetown Accord offered to mandate set representation for indigenous peoples in Parliament without acknowledging this difficulty, RCAP (1996b) suggested the need for a House of First Peoples to join Parliament alongside the Commons and the Senate. This constitutionally-entrenched House of First Peoples would be significantly more powerful than a simple advisory body in the sense that it would be empowered to “initiate legislation [and] to advise on legislation and constitutional affairs relating to Aboriginal peoples, in addition to review and oversight, and fact finding and investigative functions” (Hawke, 2001: 158).

Claudette Tardiff and Chantal Terrien (2009) have suggested that some of these representative impasses might be addressed through Senate reform. But how ‘the Nation’ is to be represented (and how it is to be constituted through that representation) is also contested in the Senate. This conflict is exacerbated by the fact that the Senate’s legitimacy is continually in question. The Senate, as it was established in 1867, was meant to serve a ‘unifying function’; according to David Smith,

because of the nature of its appointments and because it has no constituency base, (…) the Senate is better situated to offer a national outlook. Yet that national perspective must be qualified; the Supreme Court said [in] 1980 (…) that the smaller provinces only consented to Confederation on the understanding that there would be a regional upper house. In this respect the Senate helped define (…) Canada’s all-embracing identity. (Smith, 2003: 20).

Disputes about the Senate’s design and purpose, then, reflect differing visions of how Canadian national identity is best articulated. Writing in 1990, before the final collapse of the Meech Lake Accord, Randall White argues (in a book tellingly titled Voice of Region) that “an elected, effective, and more equal federal Senate for Atlantic and Western Canada,² will be the at the centre of the most realistic and durable answer to the Canadian question in the twenty-first century” (White, 1990: 20). Pressure for Senate reform has come predominantly from Western and Eastern Canada against the Centre; for reformers, the Senate’s (potential) value lies in giving representation, and political counterweight, to smaller regions and groups who are otherwise marginalized by the legislative clout of Ontario and Quebec. But reform is complicated by the “constitutional indeterminacy of the function of the Senate, which inevitably leads to enormous variety in people’s ideas of reform” (Smith, 2009b: 3).³

A productive articulation and representation of regional perspectives within a national framework, then, has always been the purpose of the Senate; there would have been no Confederation without an upper chamber (Smith, 2009a; Ajzenstat, 2009). In fulfilling this function as a regional representative body, the Senate brings local perspectives to bear on national problems, without necessarily constraining national concerns with local agendas (Ajzenstat, 2009). Although it is nebulous, and tremendously complicated, Senate reform remains an urgent task; it presently lacks public legitimacy, and actively detracts more from a functioning federal government than it meaningfully contributes to it (Kent, 2009; Segal, 2009).

Reform (or outright abolition) is more in the public consciousness than it has been in some time in the wake of the present Senate corruption scandal. But while abolition may seem like an easy way out of the complexities of Senate reform, it would likely simply exacerbate regional problems further by removing even the faintest, formal check from the power of the political executive, and give provincial elites even more power and authority in articulating divergent regional interests. The Senate, theoretically, at least provides a way to articulate regional perspectives in a way that is still bounded within a national framework; abolition would put executive federalism and regional tensions up on bust, and would further marginalize smaller provinces from the seat of political power. Ultimately, “such executive federalism imperils democratic accountability” (Kent, 2009: 168).

1The House of Commons, which Franks seems to believe was bequeathed to us by God (or at least His representatives in Charlottetown), actually works quite marvellously; at least, it would if we would stay faithful to its original design. Democratic reformers’ struggle for consensual democracy against rigid party discipline is counter-productive, because in an elite-dominated institution the adversarial model serves us better. MPs should be given more wealth and prestige (thus attracting higher-calibre candidates); the reach and influence of political parties outside parliament should be expanded; and bureaucrats and provincial governments should be subordinated to the federal cabinet (Franks, 1987: 5-7). Franks is basically a parliamentary reactionary.

2Alberta and Newfoundland and Labrador have historically bookended the drive towards reforming the Senate. In 1989, the provincial government of Newfoundland and Labrador issued a statement to the effect that the province has “little or no hope of ever achieving [its] rightful place in the Canadian federation until Canada has a Triple-E Senate” (ibid.: 268).

3For instance, while the idea of a purely non-partisan, deliberative, consensus-based technocracy has been floated as a model of Senate reform (and seems to be the approach taken by the Liberals under Justin Trudeau), Ron Watts observes that political parties can actually serve to mitigate and harmonize some of the otherwise more antagonistic regional differences that might be expressed in the Senate (Watts, 2009).