The Canadian Senate: History, Structure, and Powers

Foundations and Purpose of the Canadian Senate

• Canada’s parliament is the lawmaking arm of the state, composed of three distinct institutions: the Crown, the House of Commons, and the Senate.
• Legislative Process: For a bill to become law, all three institutions must offer their formal consent.
• Historical Origin: The Senate was established in $1867$ during the construction of the Canadian state. At that time, political elites were cautious regarding pure democracy.
• Concerns Over Mob Rule: Twentieth-century and nineteenth-century political elites feared that democratic majorities might exercise tyrannical power over the wealthy.
• John A. Macdonald’s Philosophy: Canada's first Prime Minister stated in $1864$: "We must protect the rights of minorities, and the rich are always fewer in number than the poor."
• The Senate as a Check: While the House of Commons was designed as an elected body for popular representation (notwithstanding the exclusion of women until $1918$), the Senate was built as an institutional check to prevent "rash and radical" actions by the Commons.
• The "House of Sober Second Thought": This common moniker reflects the Senate's role in slowing down the legislative process for mature deliberation.

Five Pillars of Elitism in the Senate

• The Senate is designed to be elite "in law," which differentiates it from the House of Commons where members might be elite "in fact."

1. The Appointment Process

• Senators are not elected but appointed by the Governor General based on the recommendation of the Prime Minister.
• Prime Ministerial Discretion: Historically, Prime Ministers appoint individuals from the apex of the political, social, and economic order—often those who have served the party or the PM directly.
• Incentive for Status Quo: Appointees are typically well-established citizens with a vested interest in the status quo rather than radical change.

2. Age Qualifications

• The minimum age to be appointed to the Senate is $30$ years.
• In contrast, the minimum age for a Member of Parliament (MP) or the Prime Minister is $18$ years.
• Rationale ($1867$): In the mid-nineteenth century, a $30$-year-old was considered deeply experienced, often having many children and over a decade of full-time work experience.
• Modern Statistics ($2023$):
  • Average Age of a Senator: ~$65$ years.
  • Average Age of an MP: ~$52$ years.
  • Median Age of Canadians: ~$41$ years.

3. Security of Tenure

• Historically, senators were appointed for life. Since $1965$, membership lasts until the age of $75$.
• Senators have tenure and are insulated from public and political pressure. They cannot be "un-appointed" by a Prime Minister or "un-elected" by the public.
• This independence allows for decision-making that may be politically unpopular without fear of losing employment.

4. Property Qualifications

• To be appointed, an individual must own a minimum of $\$4,000$ worth of property in the province they represent.
• They must also possess a minimum of $\$4,000$ in real and personal property (assets exceeding liabilities).
• Economic Context: In $1867$, $\$4,000$ was a substantial sum, equivalent to approximately $\$100,000$ in today’s currency.
• Legal Obstacles:
  • Case Study: In $1997$, PM Jean Chr tien wanted to appoint Mary Alice Butts. As a nun who took a vow of poverty, her formal religious order had to place property in her name to satisfy the legal requirement.
  • First Nations: This requirement can be an obstacle for First Nations individuals living on reserves due to unique property ownership laws.
• Constitutional Status: Unlike property requirements for voting (which were in legislation and easily changed), Senate property qualifications are embedded in the Constitution.

5. Legal Definition of "Persons"

• Section $24$ of the Constitution Act, $1867$ states: "The Governor General shall summon qualified persons to the Senate."
• Historically, "persons" was legally interpreted to mean only men. This interpretation lasted until $1929$, excluding women from the Senate for over six decades.

Regional Representation and Seat Allocation

• Purpose: While the House of Commons follows "Representation by Population," the Senate follows the principle of regional equality to ensure smaller provinces are not overshadowed.
• Expansion of Regions: Originally there were $3$ regions; today there are $4$. Each of the following is allotted $24$ seats:
  1. Ontario: $24$ seats.
  2. Quebec: $24$ seats.
  3. The Maritimes: $24$ seats.
  4. The West: $24$ seats.
• Additional Allocations:
  • Newfoundland (joined in $1949$): $6$ seats.
  • Territories (Yukon, Nunavut, Northwest Territories): $1$ seat each ($3$ total).
• Total Senate Seats: Expanded from $72$ in $1867$ to $105$ currently.
• Partisanship vs. Provincial Interest: Although meant to represent provincial interests, the appointment process is dominated by national partisan agendas. Prime Ministers traditionally appoint political allies (Liberals appointing Liberals, Conservatives appointing Conservatives) to ensure their legislative agenda passes.

Legislative Powers and Constitutional Differences

• On paper, the Senate's power is nearly equal to the House of Commons. It can initiate, defeat, or amend legislation. Senators can serve in the Cabinet and have historically even served as Prime Minister.

Constitutional Qualifications (Differences in Law)

• Money Bills: All taxing and spending bills must originate in the House of Commons. The Senate can vote on them but cannot initiate them.
• Suspensive Veto on Amendments: Since $1982$, the Senate can only delay a constitutional amendment for up to $180$ days. After this period, the House of Commons can repass the amendment without Senate approval.
• Non-Confidence Chamber: The government does not need the "confidence" of the Senate to stay in power. Defeat of a bill in the Senate does not force a Prime Minister to resign.

Historical Case Studies of Senate Obstruction

• Historically, the Senate is deferential to the Commons. Active obstruction usually occurs during a change in government when a long-governing party leaves office but its appointees still dominate the Senate.

The Brian Mulroney Era (1984 onwards)

• In $1984$, Mulroney’s Conservatives won a massive majority ($211$ of $282$ seats, or $74\%$).
• However, they faced a Senate where $72\%$ of seats were held by Liberal appointees from the previous $20$ years under Pearson and Trudeau.

Case Study 1: The Meech Lake Accord

• The Senate refused to approve this constitutional amendment, demanding its own changes. Because it was a constitutional matter, they could only delay it for $180$ days, after which the Commons overrode them.

Case Study 2: The Canada-US Free Trade Agreement (1988)

• The Liberal-dominated Senate blocked implementing legislation. Mulroney called an election in $1988$; after winning another majority, the Senate backed down.

Case Study 3: The Goods and Services Tax (GST) (1990)

• The Conservative government proposed a $7\%$ tax on purchases to address deficits. The Liberal Senate refused to pass it, leading to a constitutional standoff.

Questions & Discussion: The 1990 Senate Deadlock

Television Report (CBC News):

• Reporter David Halton described the Senate as the "frontline in the battle over the goods and services tax."
• Prime Minister Mulroney invoked Section $26$ of the Constitution Act, $1867$, requesting the Queen’s permission to expand the Senate by $8$ seats to break the deadlock.
• The Queen (at Balmoral Castle) and the Governor General gave consent.
• The Senate expansion changed the seat count from $104$ to $112$.
• Seat Breakdown post-expansion:
  • Conservatives: $54$ seats.
  • Liberals: $52$ seats.
  • Others: $6$ seats (including a Reform Party senator and independents).

Debate Recorded in the News Report:

• Prime Minister Mulroney: Argued it was his duty to defend the "supremacy" of the House of Commons over unelected senators and to fulfill the mandate given by voters.
• Opposition (Herb Gray): Accused the government of using the Governor General as an "accomplice in a political scandal" and "ramming through a measure opposed by $85\%$ of the Canadian people."
• Outcome: The expanded Senate allowed the GST to become law.

Conclusion: The Need for Reform

• The Senate remains an elitist, appointed, and unelected institution with power nearly equal to the democratically elected House of Commons.
• Senators receive approximately $\$170,000$ per year and can hold their seats for up to $45$ years.
• The failure of the Senate to represent provincial interests, coupled with patronage appointments, has made Senate reform a recurring topic in Canadian politics.