Presentation to the Legislative Committee on Bill C-20
I am pleased to have this opportunity to meet with the Legislative Committee on Bill C-20, for the Committee is addressing a topic of longstanding interest to the Canada West Foundation and to me personally. Indeed, most of my academic career has involved work on regional representation within the national political process. I should stress, however, that although the Canada West Foundation has been a trailblazer with respect to Senate reform for the past 30 years, the views expressed today do not necessarily reflect those of the Board, funders, or staff of the Foundation.
Setting the stage
I would like to begin this brief presentation by placing Bill C-20 within the context of more comprehensive Senate reform, for it is only within this context that Bill C-20 makes sense. The preamble to Bill C-20 explicitly addresses this context as follows:
WHEREAS it is important that Canada’s representative institutions, including the Senate, continue to evolve in accordance with the principles of modern democracy and the expectations of Canadians;
WHEREAS the Government of Canada has undertaken to explore means to enable the Senate to better reflect the democratic values of Canadians and respond to the needs of Canada’s regions;
WHEREAS the Government of Canada is committed to pursuing comprehensive Senate reform (emphasis added) to make the Senate an effective, independent and democratically elected body that equitably represents all regions.
This context of comprehensive reform must be kept in mind, as must the potential roles that a reformed Senate could play in a well-functioning federation. Bill C-20 is an important step toward comprehensive Senate reform, but only one of many steps that will need to be taken by Canadians and those they elect to represent them.
The case for Senate reform
The contemporary case for Senate reform began in the late 1900s with the need for more effective regional representation within the national Parliament. Supporters of reform argued that regional interests and aspirations received insufficient weight within the House of Commons where the overwhelming majority of seats came from only two provinces, where tight party discipline choked off regional representation, and where the representation that did occur took place behind closed doors, cut off from public view by caucus and cabinet secrecy. When they looked to the Senate, they saw an antiquated, appointed institution lacking in political legitimacy and increasingly dominated by partisanship. As a consequence, too many failed to see their regional interests represented within the national Parliament—a state of affairs that runs contrary to the liberal democratic principles that are the foundation of the Canadian federation and way of life. As a further consequence, the role of provincial premiers in national political life was inflated as they were seen as the only effective conduit for regional interests and aspirations into national political affairs.
Federal systems of government address this basket of concerns by universally providing for representation of constituent communities, in our case the provinces, within the national legislature. To this end, they employ bicameral legislatures, with one chamber representing citizens on the basis of population and the other representing the constituent units of the federation. In some federations, such as Australia and the United States, the representation of constituent units is robust, but in Canada it has been undercut by unaccountable and undemocratic appointments made by the Prime Minister of the day. Because the Senate lacks democratic legitimacy, its federal role within Parliament is seriously impaired.
In recent years this argument for more visible, democratic and effective regional representation has been augmented by an additional concern about the excessive concentration of power that can occur in parliamentary democracies. Majority governments face no effective constraints within the House of Commons, and therefore Senate reform can be seen as a way to provide some check on the government of the day. After all, the goal of liberal democracy is not to concentrate power, but to share it and make its application as fair as possible. Here I should note in passing that the abolition of the Senate would make a bad situation worse by eliminating any legislative counterweight to the majority party in the House of Commons. Abolition would further increase the power of provincial governments on the national stage, thereby enhancing intergovernmentalism at the expense of parliamentary democracy.
Finally, it is important to stress the democratic argument for reform, and thus the anomaly of an appointed legislative institution in the 21st century. To use the language of environmentalism, the current Canadian Senate is not sustainable in a democratic era. I would argue that the democratic argument for reform is now the most compelling, surpassing the need for more effective regional representation.
Although the power of these arguments for Senate reform has grown over time, no progress has been made in reforming a 19th century institution so that it can better take on the challenges of the 21st century. We are spinning our wheels while the world changes around us. We are faced, then, with two choices: we can wait until the Senate implodes through a crisis of democratic legitimacy, or we can attempt to re-engineer the Senate so as to bring it into line with liberal democratic values and the contemporary nature of the Canadian society. To do nothing today only postpones the inevitable, and to pass down the status quo to our children and grandchildren is woefully irresponsible. Surely we can do better than an institutional cobbled together 141 years ago, and frozen in time like an insect trapped in amber.
So, where does this leave me with respect to Bill C-20?
Bill C-20
Bill C-20 sets out a process by which Canadians can be consulted with respect to the appointment of their representatives in the Canadian Senate. I understand the constitutional constraints of using the term “elected,” but the fact of the matter is that new Senators would be elected. Although the prime minister would retain the formal power to reject the advice tendered by voters, this would become increasingly difficult once the new convention took hold.
To me, this is a reasonable step forward. It is consistent in spirit and principle with federal states such as Australia and the United States. It is consistent with even the most rudimentary understanding of democratic government, and with recent polling data. It is consistent with Canadian values, whereas the appointment of Senators by the prime minister of the day is not. Even if the prime minister appoints individuals of high quality, something he is under no obligation to do, the fact remains that the democratic legitimacy of Parliament has only one source: the will of the people expressed through fair and open elections.
I recognize that Bill C-20 does not take us very far along the path to comprehensive Senate reform. It does not touch the regional distribution of Senate seats, nor the Senate’s legislative powers or the inevitability of conflict with the House of Commons and how this will be resolved. Bill C-20 is not a final destination in the journey to Senate reform, but only a small first step. Nonetheless, it is a first step, showing that incremental reform is possible.
For years Canadians have been told that while Senate reform may be desirable, it must be approached comprehensively rather than incrementally, that comprehensive reform requires constitutional amendment, that constitutional amendment is impossible, and therefore that Senate reform is impossible. In this tidy and circular argument, the perfect has become the enemy of the good. We are told that any incremental reform, even the smallest step, is to be shunned in case we are pushed onto the slippery slope of constitutional reform.
This line of argument has fostered a dishonest public debate that allows opponents of Senate reform to present themselves as supporters who reluctantly conclude that any action is impossible. Everyone appears to support Senate reform in principle when in fact this is not the case. It is also a line of argument that flies in the face of the American reform experience, and indeed in the face of our own experience in imposing a mandatory retirement age for Senators.
Concern has been raised that Bill C-20 might turn out to be the final destination, that the election/selection of Senators could lock in place the existing regional distribution of Senate seats and legislative powers of the Senate. This concern rests on the assumption that newly elected Senators would be even more resistant to change than the existing appointed Senators. This is an assumption that I do not accept. The existing Senate has set the “resistance to reform” bar at a very high level, and it is difficult to imagine any combination of elected and appointed Senators that would be more resistant to change than the current chamber. From a Senate reform perspective, the situation could not get any worse.
I do admit that the changes proposed by Bill C-20 would leave us with a bit of a dog’s breakfast. However, this is a virtue of the Bill rather than a fatal flaw. The Bill would destabilize the institutional status quo, and thereby force Canadians to come to grips with the design of a modernized and democratic upper house. This process has to start somewhere, and Bill C-20 sets out a reasonable starting point. I believe that modest changes today make it more likely that we will be able to generate the political will to confront more substantive changes tomorrow. If we begin by chipping away at the status quo, we can set in motion the political dynamics that will enable us to carry the process forward.
I recognize that Bill C-20 pushes the envelope of constitutionality, although constitutional constraints are at best unknown in the context of a “living tree” constitution. I realize that those who oppose Senate reform for a variety of reasons are mounting a vigorous constitutional argument for inaction, hoping to use the courts to block democratic reform. I am not a constitutional lawyer, and perhaps because of that I am unwilling to dump the whole issue of Senate reform into the lap of the courts who are not, in my view, all that well equipped to deal with what is ultimately a political question. The democratization of parliamentary institutions and the design of effective regional representation are not fundamentally legal questions.
In a similar fashion, some argue that we should not proceed without first securing provincial support. However, I am reluctant to concede that the design of national parliamentary institutions should rest with provincial governments. I do not believe that the federation should be decentralized to the point where provincial governments can, in their own interests, preempt the democratic reform of national parliamentary institutions. Nor do I believe that the potential opposition of provincial governments to Senate reform necessarily reflects the desires of provincial populations, and surely it is the latter that we want to represent within the national legislature. When we eventually run up against the need for constitutional amendment, provincial governments can certainly oppose reform proposals, just as many provincial governments initially opposed a constitutionally entrenched Charter of Rights. However, it is by no means clear that they would carry the support of their electorates in so doing. Ultimately, the reform of parliamentary institutions should be taken to the people and not lodged in the hands of provincial premiers. As a Canadian, I find it offensive that only my premier can speak for me on such an important issue.
Now, if Bill C-20 does get the ball rolling with respect to Senate reform, what might the next steps be? Here we confront a major problem for we do not have an acceptable model of what a comprehensively reformed Senate might look like. This should not come as a surprise as too much of our intellectual energy has been devoted to blocking Senate reform, and too little has been devoted to thinking through the basic design principles of a reformed Senate. There are very few models on the table, and the dominant Triple-E model is both incomplete and shopworn. We are therefore faced with some difficult challenges:
- although it is clear that a reformed Senate will be elected, we have not worked out the appropriate form of election. Bill C-20 takes a critically important first step by proposing a transferable vote system that would ensure that Senate representation does not mirror representation in the House, but there are still important design details to work out. (If one of the goals of Senate reform is to improve and strengthen regional representation in the national parliament, it makes no sense to adopt an electoral system that would produce nothing but Conservative Senators from Alberta, or nothing but Liberal Senators from Toronto or Bloc Senators from Quebec. We can do, must do, better than this.)
- we have not worked out a formula for regional representation that captures the regional complexity of Canada and the large population variances among provinces.
- we have not worked out how to incorporate the sparsely populated territories into a reformed Senate.
- we have not worked out non-territorial forms of representation that might enable the Senate to capture the country’s changing demography and spatial distribution of its population. If we’re smart, we should be able to construct an electoral system that enhances the probability of elected representation from minority populations within provinces, be those the Aboriginal population in Saskatchewan, Acadians in New Brunswick, or Liberals in Alberta.
- we have not worked out how the House of Commons might be reformed in the wake of Senate reform, how, for example, we might move to a more faithful reflection of rep-by-pop that would address the chronic under-representation of BC and Ontario in the House.
There are other design nuts to crack, including whether Senate elections should coincide with provincial or federal elections. (Bill C-20 leaves open both possibilities, although I would argue for the latter.) In short, we don’t know where we’re going; the final destination can only be glimpsed through Bill C-20.
If we get the design details right, we can create a Senate that will serve Canadians well in the 21st century and provide a truly national legislature reflecting not only regional diversity across the country but also diversity within provincial communities. If we get the design details wrong, then we may end up with a Senate that further reinforces regional cleavages, making a bad situation worse.
Now, some might argue that the prudent course would be to stop any action, including Bill C-20, until we figure out our destination. However, past experience shows that Canadians will not even begin to tackle these critically important questions until the Senate reform train leaves the station. If we do not build on the momentum that Bill C-20 will create, nothing will happen. There must be a stimulus for creative thought, and this is what Bill C-20 provides.
Some would also argue that we should be cautious, that we should wait for the premiers to fall into line, or wait for the courts to chart a path forward. However, we have been cautious, excessively cautious for generations, and nothing has happened. I would argue that the Parliament of Canada has the primary responsibility to ensure “that Canada’s representative institutions, including the Senate, continue to evolve in accordance with the principles of modern democracy and the expectations of Canadians.” The abdication of this responsibility will inflict serious damage on the very fabric of democratic political life in Canada.
Thank you for this opportunity, and I would be happy to answer any questions that you might have.