Senate reform in Canada has been a topic of discussion for several decades. The Senate, which is part of Canada’s bicameral parliamentary system, was established in 1867 and has undergone several changes throughout its history. Its power and terms are granted and mostly outlined in sections 21 to 36 of the Constitution Act 1867. The Senate is made up of 105 members appointed by the Governor General on the recommendation of the Prime Minister. Senators hold their positions until they reach the age of 75, retire, or are removed from office for misconduct. The Senate’s role is to review and scrutinize legislation passed by the House of Commons, provide regional representation, and act as a “chamber of Sober second thought”.
The subject of Senate Reform is a popular one in Canadian politics, and there has long been calls for reform, with many Canadians questioning the Senate’s relevance and effectiveness. In recent years, it has faced scrutiny because of its perceived inability to represent provincial and regional interests and because it is seemingly “undemocratic” because Senators are appointed rather than elected, and occupy their seats until they retire or leave.
Critiques of the Senate
There are several interrelated critiques of the Senate which focus on the failure of the current Senate to adequately represent and be accountable to Canadians. The first concern focuses on the idea that because the Senate is not an elected body (and Senators remain in their jobs until they retire, or otherwise leave), Senators are not directly accountable to the Canadian people. In theory, the appointment of Senators is meant to counterbalance the model of representation by population in the House of Commons and to allow for people, regardless of party or creed, to be appointed on the basis of their ability, knowledge of statecraft, their representation of regional interests, and/or “underrepresented groups like Indigenous peoples, visible minorities and women.”
On the one hand, critics of the appointment model for Senators argue that Senators tend to be “patronage appointees” rather than being democratically elected. This has been a consistent critique by those who do not like the Senate, as they see this office as entirely without oversight and fundamentally undemocratic as they are not accountable to any specific constituencies. Critics of the appointment model view the Senate as a site for unelected and self-interested politicians to articulate their own interests.
These critics argue that because Senators serve indeterminate terms and are appointed, there is a lack of accountability that undermines the Senate’s legitimacy and effectiveness. There have been various proposals for reform, including the introduction of term limits, the election of Senators, and the abolition of the Senate altogether.
On the other hand, some argue that, like many civil servants, senators are unelected because, as we often see in contemporary politics, elected politicians come and go and are focused more on getting reelected than studying and implementing public policy. Their long-term appointments also bolster their great expertise and knowledge in an elected office, resulting in a better, more robust policy.
Reform Attempts, Past and Present
Senate reform is notoriously challenging. As described above, the terms under which the Senate operates is mostly outlined in sections 21 to 36 of the Constitution Act, 1867 and to change how it operates would require a constitutional amendment.
The first call for Senate reform was only seven years after Confederation (in 1874), when David Mills unsuccessfully proposed that the provinces should elect senators. His idea, however, would remain central to many subsequent calls for change. According to a report from the Library of Parliament, “[p]roposals, focusing either on the limitation of terms of appointments…or on abolition of the body, appeared regularly during the ensuing years, and in 1906, the Senate itself first debated reform.” In 1929, as a result of the “Persons Case” women became eligible for future potential Senate appointments, with Cairine Wilson appointed the following year.
Term limits continued to be a critical point of contention and in 1965, parliament finally approved a mandatory retirement age of 75 to prevent lifelong appointments and “[ensure] that the Senate is refreshed with new perspectives...” There were other attempts in the 1970s, 1980s, and 1990s to “make the Senate more representative of regional interests” but little change followed.
The government of Prime Minister Stephen Harper introduced legislation to try to reform the Senate. After the first attempt failed, in 2011, they tried again, introducing Bill C-7: the Senate Reform Act. The Bill would have established a term limit of 9 years per senator and a system by which the provinces could elect their senators for the Prime Minister to consider for appointment. The Bill did not move through Parliament very quickly, and while it was being considered, the Government of Quebec asked the Quebec Court of Appeal to rule on the Bill’s constitutionality. The Court found that changes to the operation of the Senate required constitutional amendment, and not a simple Act of Parliament. The federal government appealed the findings of the Quebec Court of Appeal, asking for clarification on what changes could and could not be made to the Senate without a constitutional change using the amending formula.
The resulting judgment of the Supreme Court of Canada in Reference Re Senate Reform (2014), found that how Senate reform occurs depends on the issue in question. More specifically:
- At least seven provinces representing at least half of Canada’s population (known as the 7/50 amending procedure) must agree to all amendments that change the selection or length of the senatorial terms;
- Abolishing the Senate requires the unanimous consent of the Senate, House of Commons, and the legislative assemblies of all Canadian provinces;
- The only changes parliament may make to the Senate unilaterally are property ownership and net worth.
The Senate Reform Act did not move forward, and in 2015, Prime Minister Justin Trudeau announced that his government would adopt a new, diifferent approach to Senate appointments, featuring a non-partisan Independent Advisory Board to select, and identify candidates for Senate appointments (still selected by the Prime Minister on behalf of the Governor General), based both on merit and diversity of representation. Although this is not a reform to the functioning of the Senate, it is the only substantive change made to the appointments process since the end of lifelong Senate appointments in 1906. And this change has not been without controversy. Although the Independent Advisory Board was promoted as a nonpartisan reform, many critiqued the lack of effect that it would have on fundamental issues of accountability and democratic representation that remain at the heart of calls for Senate Reform. At the time, members of the New Democratic Party’s (NDP) officials claimed that “the institution remains what it is: undemocratic, unaccountable…”.
Conclusion
Because changing the Senate requires a constitutional amendment, large-scale reform seems nearly impossible, as does dissolution. In the absence of major changes, defenders of the Senate will continue to advocate for its role as a chamber of sober second thought, with its detractors maligning it for being undemocratic and unaccountable. The debate over Senate reform rages on.
Additional Resources:
- The Senate is ‘an absolutely useless body’ – Macleans.ca
- Senate Reform: The Good, the Bad and the Unconstitutional
- Constitutional Pariah: Reference re Senate Reform and the Future of Parliament Paperback by Emmett Macfarlane
- For more in-depth information on the Senate’s history, see About the Senate – Canada.ca or Senate of Canada | The Canadian Encyclopedia
Contributors: Julianna Caietta, James Lorentz, Noah Gillingham, and Stefan Venceljovski