Revisit the Senate as it was meant to be — Th e Upper House was created to protect provincial interests in the federal legislative process
Vincent Pouliot*
Th e fi rst selection of the Members of the experience shows us that every man invested Legislative Council shall be made, except with power is apt to abuse it, and to carry his as regards Prince Edward Island, from the authority as far as it will go . . . . To prevent this Legislative Councils of the various Provinces, abuse, it is necessary from the very nature of so far as a suffi cient number be found qualifi ed things that power should be a check to power”.2 and willing to serve; such Members shall be appointed by the Crown at the recommendation Th at is what the Senate was meant to be: a of the General Executive Government, upon power that acts as a check to power. Specifi c- the nomination of the respective Local ally, it was to represent the check the provinces Governments, and in such nomination due were given to hold those wielding federal powers regard shall be had to the claims of the Members of the Legislative Council of the Opposition in accountable and to prevent their abuse of it. each Province, so that all political parties may Misconceptions regarding the constitution as nearly as possible be fairly represented.1 of the Senate have been upheld at every turn to — Fourteenth Resolution of the Quebec become unquestioned truths. Th ey serve those Conference, October 1864 who would balk at being constrained by the will of Parliament in their exercise of the powers of the State. It is now dogma that the Senate repre- Th e scandal provoked by the expense claims sents the regional interests of Canada. of individual senators has obscured a deeper malaise surrounding the Senate — one that dates But a region is a geographical area. Geo- back to Confederation. Th is malaise has to do graphical areas don’t have interests! Only persons with the reasons why the Fathers of Confeder- have interests. Th e “regions” of Canada who do ation established a Senate in the fi rst place, and possess wishes and interests were lawfully consti- with their failure to follow through with a selec- tuted into provinces and organised so that their tion procedure that would have made it possible residents could lawfully express the political will for the Senate to perform its intended function. of those legal personalities through political par- ties in their respective legislatures. Th e Senate Montesquieu wrote of the British Consti- exists to protect the local and regional interests tution: “Political liberty is to be found only . . . of the provinces within the federal legislative when there is no abuse of power. But constant framework.
Constitutional Forum constitutionnel 15 Th e Senate must be able to advise the Gov- provincial and regional interests. However, ernor General of the local and regional wishes many believe that the Senate is inherently and and interests of the people if it is to play the role irretrievably incapable of performing this role intended by confederation and established by eff ectively because its members are appointed by the Governor-in-Council, in eff ect by the the provisions of the Constitution. Section 18 of 7 our Constitution3, as confi rmed by section 4 of prime minister. . . . the Parliament of Canada Act, confers on both Th e 14th Resolution of the 1864 Quebec the Senate and the House of Commons the same Conference, which laid the groundwork for powers and privileges as those belonging to the the Constitution of 1867, states that the Crown British House of Commons at the time of Con- 4 shall appoint the members of the Upper House federation. Th is is so because the Senate was “so that all political parties may as nearly as meant to be a representative institution, one as possible be fairly represented”.8 It is clear that representative of our wishes and interests as the the Fathers of Confederation intended that the House of Commons in the federal Parliament of provincial political parties be fairly represented Canada. in the Senate. Th is resolution thus provides for Because Canada is a federation of provinces, the proportional representation of all provincial the people’s political will is divided regarding how political parties in the Senate! In this way, the they wish to govern themselves. While the con- Senate would harmoniously refl ect the local and stitution of the House of Commons represents regional wishes and interests of the people, as our will to be governed in common throughout expressed in their provincial parliaments. Canada, the Senate was created to represent and Despite the 14th Quebec Resolution, a Sen- protect those purely local interests which the ate selected in this way was nowhere specifi ed in people want diversely governed by the provinces. the text of the Constitution Act, 1867. However, Th us, section 22 of our Constitution states over section 32 does specify that the Governor Gen- and over that senators “shall represent” the prov- eral must fi ll a vacancy that arises in the Senate inces in the Parliament of Canada.5 by appointing “a fi t and qualifi ed Person” (in It must be remembered that the Government French, “quelque personne capable et ayant les 9 of Canada acts in the name of the Crown, but qualifi cations voulues”). Clearly, an appointee derives its authority from the Canadian people. must be “fi t” or “capable” to exercise the offi ce of And both houses of our federal Parliament are senator which, according to section 22, means to needed for the people’s political will to be fully represent the provinces in Parliament. Both “fi t” expressed. and “capable” mean more than possessing the abilities required to exercise the offi ce of sena- In their research for the Macdonald Royal tor. Th ey both require that senators possess the Commission in the 1980s, Donald Smiley and authority to act on behalf of the provinces they Ronald Watts wrote: represent.
Th e role and impact of a central chamber Th e Prime Minister of Canada can possess within a federal system is derived not only no more authority than what our representatives from its constitutional powers but also from in the House of Commons may confi de in him. the method of selection for its members and We elect our federal MPs to represent and pro- the composition of the chamber. Appointment tect how we wish to govern ourselves in common by the central government is an arrangement throughout Canada. We elect our provincial rep- unique to Canada. Elsewhere, this has generally resentatives and vest them with the authority to been considered inappropriate if the members of the second chamber are to be genuine represent and protect our local interests in the representatives of regional interests. . . .6 government of our province. Th e Prime Minister of Canada therefore cannot possess the author- . . . Th e accepted reason for a second chamber ity to represent and protect the interests of the in the Parliament of Canada is to protect provinces. If the Prime Minister does not pos-
16 Volume 24, Number 1, 2015 sess this authority, then he cannot confi de it so as could provide. As a result, they have encouraged to constitute a senator with the legal capacity to the misconceptions that have led to the mess we represent a province in the Senate; if the Prime have today. Th e current crisis of the Senate pro- Minister does not possess this authority, he or vides an opportunity to consider returning to she does not possess the capacity to advise the the original purpose and structure for Canada’s Governor General regarding who would be “fi t” Upper House that the Fathers of Confederation to occupy the offi ce of senator. put forward in 1864. Th e representative character of the Senate was ensured by section 30 of the Constitution which specifi cally permits senators to resign.10 Within the context of the times, it was under- stood that if senators were made to feel that they Notes no longer represented the wishes and interests of the authority to whom they owed their appoint- * Vincent Pouliot is President of the Institute ment, their sense of honour would oblige them of Responsible Government, a Quebec City to resign. Today, if provincial political par- lawyer (retired) who has written extensively on constitutional issues, especially in regard to the ties selected senators, a party would require its Senate. He was an intervener in the 1997 Supreme choice of senator to sign an undated resignation Court of Canada Reference re: the Secession guaranteeing that he or she maintains its confi - of Quebec, and from 1995 to 1997 he was the dence, and thus the authority to speak and act on Leader of the Libertarian Party of Canada. An its behalf and on behalf of its constituents. earlier version of this article appeared in Inroads Magazine Winter/Spring 2014. th Th e 14 Resolution provided for only the fi rst 1 Th e Quebec Resolutions, October 1864, resolution selection of senators to proportionally represent 14, online:
Constitutional Forum constitutionnel 17 18 Volume 24, Number 1, 2015