Quite apart from the legitimacy of his housing allowance claims, the question of Senator Mike Duffy’s non-residency in Prince Edward Island is a serious issue because it speaks to the legitimacy of the Senate itself.
In the Confederation debates, Sir John A. Macdonald set out the logic behind our bicameral federal Parliament. “In the Upper House equality in numbers [among regions] should be the basis,” Macdonald said, “in the Lower House population should be the basis.”
The Senate’s other roles, such as to represent property, and to serve as an appointed counterbalance to the “will of the mob” (Sir George-Étienne Cartier’s words), are no longer defensible. But the case for “equality in numbers” among regions, to counteract the exigencies of population, remains the essential purpose of the Senate.
If individual senators do not take their duty to their province and region seriously enough to actually observe the requirement of residency, then it is hard to make any case for the Senate whatsoever.
Yet given the federal nature of our institutions and the sprawling nature of our geography, and given the important and unheralded sober-second-thought work that the Senate does via its committees, in effect improving legislation in the service of the House of Commons, the Senate is needed.
Those who advocate abolition, such as the federal New Democrats, have an agenda beyond poking a stick at the carcass of a chamber that is seen by much of the public to lack legitimacy. They want power centralized in Ottawa.
Other federal states, such as Australia, the United States, and Germany, have found ways to effectively reflect their federal nature in their legislative structures. There is no reason Canada cannot do the same with what the constitutional scholar Ned Franks calls “one of the most unreformed chambers in the British Commonwealth.”
The impetus for reform has largely come from the West, but it is in the national interest to make sure that regions are adequately represented.
In 1985, the Alberta Select Special Committee on Senate Reform set out a model for a Senate that would be directly elected, with each province represented by an equal number of senators, and with effective powers to provide a “regional voice.”
The committee also expressed the province’s frustration by declaring that “Alberta’s proper place in Confederation can only be secured with a Senate constituted in a more credible manner.”
Regardless of its merits, that vision is unattainable. The virtual impossibility of a constitutional amendment, especially with a Parti Québécois government in Quebec, negates wholesale reform.
Nor does the alienation argument hold water. Alberta has found its “proper place,” in spite of this vestigial survival of Victorian conservatism. However, that does not obviate the desirability of reform.
To his credit, Prime Minister Stephen Harper has taken the matter seriously, proposing to change the nomination process, and to introduce term limits. He should seek to implement these reforms, and also push for a joint resolution affirming a “suspensive” veto, which would limit the Senate to delaying (rather than defeating) legislation. These are limited and attainable changes that should not concern the Supreme Court.
There are many options better than the existing system of nominations based solely on the patronage of the prime minister.
To begin with, the nominations should come from the provinces to avoid senators becoming another brand of national party politician. Senatorial elections are the best way to select them and, with a goal of finding a different cast of characters, such consultative votes should be held in conjunction with provincial elections when vacancies arise, rather than with federal elections. If provinces don’t want to give their citizens a vote, their legislatures or lieutenant-governors could be invited to draw up a short list of candidates, from among whom the nominee could be chosen.
The Senate generally does not defeat legislation, but respects a gentlemen’s and ladies’ agreement to withhold use of its powers. So, in practice, a suspensive veto already exists. With a constitutional amendment impossible, the two houses could adopt a joint resolution to affirm this practice. It would not be legally binding, but how likely is it that such a resolution could be ignored in the future? Britain’s Parliament adopted the suspensive veto for the House of Lords in 1911.
Finally, as direct elections to the Senate are beyond reach, term limits are needed. Nominees should be limited to serve the life of two full Parliaments, to a maximum of 10 years.
Regrettably, other needed reforms are off the table, including a reallocation of seats to ensure the West is more fairly represented, such as was floated by the Murray-Austin amendment in 2006. As it stands, the four Atlantic provinces, with a 7-per-cent share of Canada’s population, have 30 senators. The four Western provinces, with more than 30 per cent of the population, have just 24 senators.
Some modest initial improvements to the Senate, particularly those advocated by Mr. Harper, are uncontroversial to most Canadians, and would demonstrate that incremental reform is possible, and desirable.
Canada has undergone dramatic institutional change from 1867, from the establishment of a Supreme Court, the effects of the Statute of Westminster, 1931, the adoption of a Charter of Rights and Freedoms, to the pending elimination of male primogeniture for determining Canada’s head of state. It is not too much to ask that the Senate of Canada join the 21st century.