THE HOUSE OF THE FEDERATION: A CRITICAL EVALUATION

W.H. McCONNELL* Saskatoon

The reconstitution of the Canadian into a "House of the Federation", 1 from the very inception of the Trudeau government's constitutional reform proposals in the spring of 1978 attracted a veritable storm of criticism." While there was widespread agreement that the appointments to the existing reflected undesirable party patronage resulting frequently in a chronic imbalance between dominance;3 government and opposition forces in an era of Liberal 1979 CanLIIDocs 27 that it represented a haven for superannuated party workers and undemocratic and elitist business and..financial interests, I and that it lacked vitality as a parliamentary forum because it had no constituency to whom it could appeal in case of conflict with the lower elected house, -5 its proposed replacement was also seen as marred with flaws of the most serious kind . Its defenders, on the- other hand, could point to an impressive amount of committee work

* W.H. McConnell, of the College ofLaw, University of-Saskatchewan, Saskatoon. i See clause VI(c)(ii), sections 62-70, of the Constitutional Amendment Bill, 1978 (hereinafter referred to as Bill C-60). 2 The chief critiques of the proposed new upper chamber were contained in Senator Eugene A. Forsey's, Some Problems Raised by the Constitutional Amendment Bill (C-60), 1978; Professor David Kwavnick's, Comments on Bill C-60, and Dr. Peter McCormick's, The House of the Federation: A Critical Review. All of the foregoing were unpublished at the height of the controversy on Bill C-60, but were circulated widely in academic and government circles, virtually insamizdat form. G.C. Eglington also wrote a critique of the constitutional proposals which focussed on the role of the Crown and convention . In what must be a rare occurrence in Canadian political life, the Secretary to the Cabinet for Federal-Provincial Relations felt constrained to reply to Eglington and Kwavnick, whose papers had been circulated by Senator Forsey's office, on Sept. 29th, 1978. This part of the debate, however, related to the Crown rather than the upper house. While the analysis that follows is solely my own, I would like to express my appreciation to all of the above authors. 3 R. MacGregor Dawson, The Government of Canada (5th ed., rev. by Norman Ward, 1970), pp. 283-284. 4 John McMenemy, Influence and Party Activity in the Senate: A Matter of Conflict o£ Interest, in Paul W. Fox, ed ., Politics: Canada (4th ed., 1977), pp. 454-461 . 5 Robert A. Mackay, The Unreformed (rev. ed., 1963), p. 182.

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often of quite high calibre, performed by Senate members .' Those who attacked the House of the Federation, with a few exceptions, did so not so much out of solicitude for the Senate, but because of the imperfections inherent in the design of the proposed new upper chamber. Two poles in the debate are represented, perhaps, by the government's assessment that "[t]he powers and composition of the House are designed to attract good members and to provide an effective forum for the regions in the conduct of national affairs",' and Senator Forsey's view that "[t]he narrowly restricted powers of the Upper House make it, of course, even more unlikely that the provincial Premiers will leave it to their appointees in that Chamber to settle disputes between the Dominion and the provinces . It never was very likely that the prima donnas would step modestly aside for the understudies" . 8 Senator Forsey was a tireless and incisive critic of the Liberal government's constitutional proposals from the time of their first appearance in June, 1978 . The author of erudite works on public 1979 CanLIIDocs 27 law, he was probably the leading authority in Canadian public life on Parliament, the Crown and cabinet government. Rhodes Scholar at Balliol in 1926, and thereafter political scientist at McGill, standard-bearer for the C.C .F. in two federal contests in Carleton County against George Drew in 1948 and 1949, research director of the Canadian Labour Congress and Liberal Senator from 1970 to 1979, he is one of the most formidable debaters in Canada, as his antagonists will concede. Although some thought he was defending a vested interest, he spoke with such sincerity and effect that he instilled doubts even in some of his Liberal colleagues concerning the wisdom of the government's constitutional plans.

Of the three distinguishing features which emphasized the supre- macy of the House of Commons over the Senate in 1867, all are carried over, in one form or another, to the new House of the Federation, and further disabilities, such as rigid time limits are imposed on the refashioned upper chamber which appear even more to weaken it in comparison with the lower, directly elected, legislative branch. Only the House of Commons was based on direct election by the voters; it only could originate bills for the raising or spending of

s F.A. Kunz, The Modern Senate of Canada, 1925-63 : A Re-Appraisal (1965), ch. 9, and J.R . Mallory, The Structure of Canadian Government (1971), p. 234. Government of Canada, The Constitutional Amendment Bill, 1978, Explana- tory Document, Ottawa (1978), p. 18 . 8 Senator Eugene A. Forsey, op. cit., footnote 2.

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money, and, by the unwritten convention of responsible govern- ment, the cabinet was held responsible only to the lower house, not the Senate . The government of the day, in other words, could be defeated only by an adverse vote on some major issue by the House of Commons. Although members of the blouse of the Federation, according to Bill C-60, are "selected" according to lists prepared by the various provincial and federal governments, the selection is not unfettered . There is a nexus between such selection and the votes cast in the immediately preceding provincial or federal general elections. The number of members in the 118-member House to which each party is entitled depends on its share of the votes in those elections. In a province having a total of eight seats, for example, four of which would be chosen by the provincial and federal governments, respectively, a party would have to obtain approximately twenty-five per cent of the total vote cast (although it might not have elected any M.L .A.s or M.P.s) in order to qualify for a seat on either the provincial or federal "list" . In registering their preferences for 1979 CanLIIDocs 27 members of the House of Commons or provincial legislative assemblies, the electors are building proportions of the total vote which could give rise, once a minimum threshold was attained, to entitlement by indirect election to seats in the upper house . 9 One possible disadvantage of such a scheme is that it could encourage splinter parties which, although their vote was not concentrated enough in any electoral district to elect a member, could amass a total vote across an entire province entitling them to a member or members . to

S . 64(2), Bill C-60 . io Apparently a similar scheme of indirect election posed problems in Dr . Adenauer's early years as West German Chancellor . See Terence Prittie, Konrad Adenauer, 1876-1967 (1972), p. 211: "The small parties were bound, too, to suffer from the change in the Electoral Law . In 1949 it was possible to pick up seats in a single Land, with a vote of over 5 per cent in it . In 1953 the 5 per cent clause applied to the Federal Republic as a whole-unless a party managed to win a seat by direct election . To give an example-a small party gaining over 5 per cent of the votes in Bavaria would, up to 1953, have been given a Bavarian seat in the Federal Parliament . This seat would not have been won by direct election, but would have been awarded from the reserve list . After 1953 the reserve list seats were awarded on a `national' basis and a small party with a local following in only one, or a very few of the Lander would get no reserve seats at all . Right-wing nationalists, congenitally incapable of uniting, were placed at a disadvantage which has kept them out of the political arena in Bonn ever since . . .", and at p. 234, referring to the 1957 West German federal election: "The electoral law had been revised again; it was now necessary to win three seats by direct election as well as 5 per cent of the overall vote in order to secure a `proportional' number of seats on the reserve list ." It is possible, accordingly, that the same vice of fragmentation of the parliamentary system by splinter parties, feared by the West Germans, could occur in Canada because (a) it is theprovincial tally that is used in selecting members of the House of the Federation

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Bills for the raising or spending of money would still originate in the House of Commons," although the question of whether the upper house could amend such bills is still unresolved. Section 53 of Bill C-60 renders explicit in the proposed new constitution what was formerly unwritten, namely, that the government " . . . is responsi- ble to the House of Commons of Canada", and not to the upper chamber. The section goes on in detail to stipulate some of the formerly unwritten conventions governing the relationship between the Prime Minister and the Governor General in the event that the cabinet is unable to command the confidence of the lower house . It might be argued that such explicitness in the area of constitutional conventions is undesirable, since the unwritten constitution in a parliamentary system tends to develop or atrophy through cumula- tive usage and practice, on an inductive case-to-case basis, and therefore should not be frozen once and for all in written form . Indeed, it may be argued that the conventions as set out in section 53 extend considerably beyond what would be embraced in past or 12 current practice, and that their advisability might be questioned. 1979 CanLIIDocs 27

The 118-member House of the Federation is to consist of a slightly increased number of seats in the Eastern and Western divisions of the four traditional Senate regions . The two central divisions, Ontario and Quebec, will retain their present (Senate) complement of twenty-four seats each, while the Eastern division would be increased from thirty to thirty-two seats, with Newfoundland obtaining the two additional seats, and the Western division (which is often said to be underrepresented because of its greater relative population growth) would acquire twelve extra seats, with Alberta and British Columbia acquiring four new seats (for a total of ten each) and Manitoba and Saskatchewan each two (for a total of eight) . The Yukon and the Northwest Territories will each obtain one seat, thus continuing the representation in the former upper house they received in 1975. 13 One may query why there is so much emphasis in Bill C-60, on the more or less phantom "divisions" and so little on the provinces, which are the real "actors", along with the federal government, in

on both the provincial and federal lists, and (b) no members need be returned by direct election in order to qualify for seats in the upper house, since it is the proportion of the total votes cast for a party provincially that is decisive . " See s. 76 of Bill C-60 which is in substance s. 53 of the B.N .A . Act, 1867, 30 & 31 Vict ., c. 3 (U .K .) . 12 See W.H . McConnell, Some Comments on the Constitutional Amendment Bill : A Quasi-Presidential System for Canada? (1979), 4 Queen's L.J . 290. 11 The B.N .A . Act, 1975 . 23-24 Eliz . 11, c. 53 (U .K .) .

1979] The House of the Federation 51 7

the Canadian political forum. In 1867 Ontario, Quebec and the Maritime Provinces each had a substantial community of interest and outlook. The fourth "division", however, embracing Western Canada, was not formally organized until 1915, 14 and can now be described as a . "region" only in the loosest geographical sense. There is little economic or other community between, for example, Saskatchewan and British Columbia, and the number of seats allocated appears to be arbitrary. Why should Manitoba, with a larger population, get eight seats and New Brunswick ten? 15 Should there not be a presumption in Canada, as there seems to be in the United States and Australia that it is the units, or provinces, that are represented in the upper house, and on a basis of equality?16 Why not

is The B.N .A . Act, 1915, 5-6 Geo. V, c. 45 (U .K .) . is Dr . Peter McCormick, op . cit., footnote 2, has made a similar argument . On the arbitrariness of the figures, see The Final Report of the Joint Committee on the Constitution of Canada, which advocated a 130-member Senate with seats distributed as follows: Newfoundland, 6; Prince Edward Island, 4; Nova Scotia, 10 ; New 1979 CanLIIDocs 27 Brunswick, 10; Quebec, 24 ; Ontario, 24; Manitoba, 12 ; Saskatchewan, 12 ; Alberta, 12 ; British, Columbia, 12 ; the Yukon Territory, 2, and the Northwest Territories, 2. In justifying increased representation for the West, the Report added, "While the four Western provinces share many common concerns, even in 1915 it could not be said that the whole of the West was one economic unit . It is even less so today. Furthermore, since 1915, the economic power of the West has dramatically increased", ibid ., p. 35 . is In Federalist No . 39, drawing the distinction between national and federal constitutions, James Madison described the U.S . constitution of 1787 as partaking of the nature of both . Insofar as the people of the new republic were regarded as a single nation, the will of the majority would govern . Insofar as the constitution represented a compact among sovereign states, the principle of equality among the combining units of local government was to prevail in the upper house: "The House of Representatives will derive -its powers from the people of America; and the people, will be represented in the same proportion and on the same principle as they are in the of a particular state. So far the government is national, notfederal . The Senate, on the other hand, will derive its powers from the States as political and coequal societies; and these will be represented on the principle of equality. in the Senate . . . . So far the government is federal, not national (The Federalist Papers (Mentor Edition), New York (1961), 244) ." The record of debates by the Founding Fathers in Philadelphia discloses that there was considerable contention over the principle of equality of states in the upper house. The larger states at first insisted on representation by population in the Senate, but in the Congress under the Articles of Confederation, and in the Constitutional Convention of 1787 itself each state had one vote, and the small states by their combined weight were able to carry the principle of equality in the upper house (James Madison, Notes on the Debates in the Federal Convention of 1787, Adrienne Koch, ed . (1966), p . 297 .) Similarly, in Australia, despite the disparity of population in the combining units, and an argument advanced by H.B . Higgins that representation in the Senate be proportional to the relative population of the states, it was finally agreed that there be six senators for each state, or a total of 36 (from 1901 to 1949) with an increase to ten per state in 1949 for a total of sixty, see J.A . La Nauze, The Making of the Australian Constitution (1972), p. 187, and s . 7 of the Commonwealth of Australia Constitution Act, 63 & 64 Vict ., c. 12 ., as am .

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ten seats for each province for a hundred-seat "Senate"? It is true that under such a scheme Prince Edward Island would have the same representation in the upper house as Ontario or Quebec, but there would be no more comparative imbalance than there would be of Tasmania in the Australian federation or of Nevada in the United States . And proportional representation in the lower house would remain . Of course, if such a scheme were adopted the upper house would become a true chamber of the federating units, without any appointments representative of the federation as a whole . If Parliament is a "unity", the federation already has adequate voice in the lower house, and would not require half the seats in the upper chamber as well. In contrast with the former method of appointment to the Senate," by the Governor General on the advice of the Prime Minister, appointments to the House of the Federation are divided almost equally between the federal government and the provinces, half of each province's allotted number being appointed by either, 1979 CanLIIDocs 27 with the two northern members representing the respective territories being appointed by the Governor General in Council . to Of the total number of 118, therefore, the provinces would appoint fifty-eight and the federal government sixty . The method of appointment would tend to recognize even further, the formal existence of political parties which has not been a feature of Canadian political or constitutional practice until rela tively recently . 11 The entitlement of a party to a shifting number of

17 S . 24, B .N.A . Act, supra, footnote 11 . 11 At a meeting of the Northwest Territories Council in Yellowknife in August, 1978, at which the writer was present, the members of the legislative assembly took vigorous exception to this provision, which they considered would even further affirm their "dependent" status . Both for the purposes of "symmetry", and to give effect to the democratic professions in that part of Bill C-60 setting out "Rights and Freedoms within the Canadian Federation", and the political equality of Canadians everywhere, it should be the "Commissioner-in-Council" and not the "Governor General in Council" who chooses the single member of the House of the Federation in the Yukon and the Northwest Territories . is See John C. Courtney, Recognition of Canadian Political Parties in Parliament and in Law (1978), 11 Can. J. of Pol. Sc . 33, where the author states at p. 33, "Within many of the parliamentary systems founded on the Westminster model, part of the long standing tradition of political parties has been based on their `nonexistence' in law and in Parliament" . For the analysis of the House of the Federation proposal in Bill C-60 what, exactly, is a "party", and who decides? Is the Rhinoceros Party a veritable party or is it a surrealist satire on the Canadian political process? In a political system which professes to be pragmatic and non-doctrinaire, might not a citizen consider himself, without much change of his basic beliefs and attitudes, to be a member of any of our three major national parties? Of course when one reaches the Marxist and Péquiste parties, there may be more substantive ideology, but even in those cases there is considerable divergence in the tenets held by individual members.

1979] The House of the Federation 519

appointees depends upon its relative vote, vis-à-vis other parties in the province, after the most recent federal or provincial elections . After each election, the Governor General in Council or the. Lieutenant Governor in Council (in effect the Prime Minister or Premier) will draw up a list of prospective incumbents of the upper house, after consulting with the leader of each party entitled to be represented. Then, by resolution or whatever mode of proceeding it deems appropriate, the House of Commons or provincial (or those exercising effective control in those bodies) will elect its proportion of representatives to the House of the )Federation. The only practical restraint upon the selection by the appropriate governments would be the injunction in section 64(2) of Bill C-60 that the members should "fairly reflect" the voting preferences of 20 the respective electorates at the most recent election, One major problem is that there are parties such as the N.D .P . and the Parti québécois which are opposed to the very concept of a because they regard it as an undemocratic

federal upper house, either 1979 CanLIIDocs 27 and elitist body, representing "interests" rather than people, or because they are opposed to the federalism it symbolizes . Perhaps because of this, there is a provision21 that should the House of Commons or provincial legislatures fail to select their allotted half-share of the members within the time limit allowed, the other legislative authority could fill any vacancies . This is surely a curious provision . If a Quebec separatist government, or an N.D.P . Premier, for philosophical reasons, decided not to make appointments to the new upper chamber, could the federal government credibly cure the omission by nominating putative N.D.P.'ers or Péquistes, who ostensibly rejected a central tenet in their respective party program- mes?" The provision, also, lacks symmetry in any genuine sense. One can appreciate how it might be used by a federal administration to organize a full house where recalcitrant provincial administrations failed to act, but is there any substantial probability of a federal administration failing to appoint its full complement of members? Even a federal N.I .P. administration would more probably abolish the upper house than appoint members to it.23 The members of the House of the Federation would hold office

2° Interim members of the initial House of the Federation would be selected by the Governor General in Council and the Lieutenant-Governors in Council pursuant to s . 63(2) of Bill C-60. 21 S. 63(3) of Bill C-60. 22 See supra, footnote 19. 23 Stanley Knowles, N.D .P. M.P. for Winnipeg North Centre proposes a private member's bill annually to abolish the upper house. See, e.g., House of Commons Debates, Oct. 17th, 1974, pp. 490-491 ; Mr. Knowles's position reflects longstand- ing C.C .F. and N.D.P. party policy .

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until the next general election of the body selecting them. There is both strength and weakness in so constituting this chameleon-like body. The strength is that at any given moment the upper house will accurately reflect the configuration of political forces in the country as a whole-provincial and federal . The purpose is obviously to design a chamber where every significant political party or movement in the country will have a voice, and that the voice will reflect the relative strength of any party vis-à-vis other federal or provincial parties . The weakness resides in the shifting and transitory nature of the membership of the House . One can envisage few historical parallels for this legislative body whose composition would alter every year with every election . To be sure, some members would survive, but with each substantial swing of the pendulum many would go, and there could be no settled expectancy of long tenure. Collectively speaking, the House could not anticipate the growth of that expertise or experience in its membership which made Senator Fulbright such a valued member of the or Lord Beaverbrook so valued a member of the House of 1979 CanLIIDocs 27 Lords .

While the provisions respecting the composition of the new upper house would provide a more accurate reflection of the Canadian body politic, the actual powers of the House of the Federation to delay or defeat legislation would be much reduced in comparison with the Senate. On one plane, there is an attempt to make the House a more effective vehicle for the expression of regional interests, on another there is a determination that the remodeled upper house will not really be able to provide any significant opposition to Bills or initiatives taken by the federal government or the House of Commons . The marginal note explaining section 67, which severely limits the powers of the upper chamber, declares that in so doing the provision "emphasizes the supremacy of the House of Commons" . The extent of the limitations causes one to ask, however, whether a legislative organ with such minimal powers of opposition would be of much value at all? Sections 67 and 68 establish different conditions for the enactment of ordinary and urgent legislation originating in the lower house and sent to the House of the Federation for passage . Where ordinary Bills are refused passage (or the consideration required at any stage) notwithstanding non-approval by the upper house, such Bills may become law after not less than sixty nor more than 120 days, from the date of refusal, upon presentation to the Governor General for his assent."' Similarly, if the upper chamber has not

24 S. 67(a) of Bill C-60. 1979] The House of the Federation 521 finally dealt with a Bill," or if it has made amendments to the Bill to which the House of Commons does not agree, H (a minimum of sixty and, a maximum of 180 days having elapsed, including forty-five sitting days, since the presentation of the Bill to the upper house in the case of inaction, or since the refusal of concurrence by the lower house in any upper house amendments) in either case the Bill may be enacted simply by receiving the royal assent from the Governor General . In the latter case, it should be added, those amendments proposed by the'upper house and concurred in by the House of Commons become law notwithstanding non-passage of the Bill by the upper house . The sixty-day "suspensive veto" envisaged by section 67 for ordinary legislation would greatly curtail the deliberative and legislative powers of the new second chamber as compared with its counterparts in the United Kingdom, the United States and Aus- tralia,27 to which it would bear the greatest resemblance. It is obvious, moreover, that a chief purpose of such a second chamber, at least as it functions in the Anglo-American federations, resides in its 1979 CanLIIDocs 27 historic role as a guardian of the federal system. (Even in the United Kingdom, where there is no such system to protect, there is a one-year suspensive veto.) How effective a role could the House of the Federation play in the defence of federal interests, it might be asked, in view of the decidedly restricted time-limits and other constraints imposed upon it by Bill C-60? That the upper chamber may indeed serve as a guardian of local interests is implicitly acknowledged by section 68(1) which, in given circumstances, imposes even more drastic time limits on its action. Where a Bill does not contain provisions of "special linguistic significance", 18 and the House of Commons by a two-thirds

25 S . 67(b) of Bill C-60. 26 S . 67(c) of Bill C-60. 27 In the United Kingdom, the Parliament Act, 1911, conceded a delaying power of two years to the House ofLords which was reduced to one year by the Parliament Act, 1949 (1 & 2 Geo. V, c. 13; 12, 13, 14 Geo. VI, c. 103); in the United States, ifa deadlock occurs between the two houses, a Conference Committee confers to compose differences, but there are no rigid time limits binding either chamber in case of delay: William J. Keefe and Morris S . Ogul, The American Legislative Process (4th ed., 1977), Ch . 1 ; in Australia, according to Norman Wilding and Philip Laundy in An Encyclopaedia of Parliament (4th rev. ed., 1972), p. 28: "The [Australian] House of Representatives does not . . . enjoy the power conferred on the [U.K.] House of Commons under the Parliament Acts, and Bills must be passed by both Houses before they can be presented for the royal assent. In the event of disagreement between the two Houses, provision is made for conferences of Managers appointed by each House, and also for joint sittings. In the event of a deadlock both Houses may be dissolved by the Governor General under section 57 of the Constitution ." (The differs from the and Canadian Senate, of course, in being a directly-elected body.) 211 S. 68(2) of Bill C-60.

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majority of those voting, certifies by motion at least seven days after a Bill's passage and transmission to the House of the Federation that the measure is both "urgent" and that it would not have "an obvious and significant impact" on federal-provincial relations, it may forthwith be presented to the Governor General for his assent. If sections 67 and 68 are read together, accordingly, it becomes apparent that the federal government can ensure the enactment of "urgent" Bills, (not related to federalism or "linguistic rights") seven days after their passage by the lower house . In the two mentioned restricted categories, it would have to wait for a minimum of two months before a measure could be enacted without the upper chamber's assent. The diminished powers of the House of the Federation in relation to its predecessor are intelligible in view of the fact that it would be next to impossible for any federal government to secure an over-all majority there . 29 And if the government did not possess a it seek to curtail as far as majority, it is only natural that should 1979 CanLIIDocs 27 possible the House of the Federation's powers of legislative obstruction. 30

The foregoing provisions would seem to betray the fears of anxious technocrats that if real power were given to the House of the Federation it might be used obstructively to thwart the will of the Commons, which remains "supreme" . Historically speaking, this is very doubtful . The upper house-Senate or House of the Federation-is simply not equipped to obstruct for long a measure genuinely desired by the people of Canada. Alongside the values of "efficiency" and "expedition," which are so much emphasized-of pushing the legislation through-should be placed the values of "careful oversight" and "due process" . If an upper chamber is worth having, it should be given sufficient powers of supervision and delay to make its task meaningful .

ze Senator Forsey's calculations in June, 1978, concerning the composition of the upper house, having regard to the then existing Liberal federal government and the various provincial administrations is instructive. In a house of 118, he finds, counting both federal and provincial appointees, 41 Liberals, 43 Conservatives, 21 N.D .P., 7 Social Crediters, 5 Péquistes and 1 Union Nationale. This would amount to an opposition majority of 36 . See Forsey, op . cit., footnote 2, pp 1-2. 30 Senator Forsey, op, cit., ibid ., p. 4: "It looks as if the government were saying to the provinces: `You feel alienated? You feel you should have more imput into the federal legislative machinery? We'll give you half the members of the Upper House. That, you must admit, is a massive input.' But it is adding : `Of course, when it comes to output, that's rather a different matter . Naturally, we can't allow the Upper House, with it perpetual, guaranteed, entrenched Opposition majority, to have more than a very modest, brief delaying power.' "

1979] The House of the Federation 523

The task of the House of the Federation in acting as a watchdog over language rights is set out in much greater detail in Bill C-60 than its role as an overseer of federalism, which is more inferred than explicit in the text of the Bill. Pursuant to subsections (1) and (9) of section 69, where a "measure" 31 is of "special linguistic significance" (if, for instance, it relates to the status or use of English or French, or rights and privileges acquired relating thereto, or is certified as such by the Speaker of the House of Commons, or in the message of the Governor General recommending its passage) in order for it to pass it requires a double majority, respectively, of English- and French- speaking members of the House of the Federation . The provisions in section 67 for accelerated passage of a Bill not approved by the upper house do not apply to measures of "special linguistic significance" . However, if, after the expiry of the time limits in section 67,

otherwise applying, a Bill of "special linguistic significance" is 1979 CanLIIDocs 27 again presented to the House of Commons (in the same or a later session) and passed by a two-thirds majority, the Bill can be presented for a royal assent pursuant to section 67 "without further compliance with the requirements of that section" . ' The foregoing. provision emphasizes the great importance attached by the drafters of Bill C-60 to measures of "special linguistic significance" . In such a case, re-passage by a weighted two-thirds majority by the House of Commons is required in order to enact a Bill despite non-concurrence by the House of the Federation, whereas in "non-linguistic" measures, the effluxion of time in itself, without re-passage, would allow a Bill approved by the lower house but not the upper to receive royal assent. It should be noted that for purposes of a "double-majority", as envisaged by section 69, it is the language of the member, rather than his province, which is important. Section 69(8) carries a presumption that a member is English-speaking unless he notifies the Speaker of the House of the Federation (within thirty sitting days of his selection) that he considers himself to be a "French-speaking member" . The chief criterion defining such a member is that " . . . his or her primarily spoken language, or the language first learned in childhood and still understood by him or her, is French . . . Without striving to discover overly specific sources for the assumptions underlying section 69, it must be said that the section evokes Prime Minister Lester Pearson's concept, when he was organizing the Royal Commission on Bilingualism and Biculturalism

31 According. to s. 69(1) "measure" includes a resolution, address or Bill .

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in July, 1963, that the enquiry should postulate "an equal partnership between the two founding races", and Prime Minister Trudeau's concept that French- or English-speaking Canadians should not be confined within delimited political subdivisions, but should be at home everywhere in Canada. The duality of Canada and the importance of preserving the French language throughout the country, and English in Quebec, is placed by these provisions at the very centre of the constitution. If one accepts the duality expressed as fundamental, the provisions of Bill C-60 attempt to preserve the linguistic and cultural dualism of Canada by giving a virtual veto over change to the French- and English-speaking "blocs" in the upper house. Of course, non-concurrence by the upper house, even of a protected "linguistic" measure, could be overridden by a two-thirds majority in the House of Commons, but that is not easily achieved. Unwieldy as such a scheme may seem, perhaps it is not too high a price to pay for the preservation of the country. One might question, however, whether the safeguarding of a viable federalism, which is a traditional concern of the upper houses of federal states, 1979 CanLIIDocs 27 might not have been given a more prominent place in Bill C-60 along with the protection of linguistic values. Some doubts remain, however . The members of the upper house are placed in confrontation, where "linguistic" measures are being considered, by being expressly designated as English- or French speaking blocs. Is something being confided to a legislative body which more properly falls within the judicial function? Should it not be courts interpreting specific guarantees who act as guardians of language rights? If such rights are well conceived and crisply expressed in the constitution, would there be an additional need for a double-veto in the upper house? Would a political forum debating such incendiary matters not divide the country more than a tribunal considering them in a dispassionate atmosphere? Instead of frag- menting our legislators into subcategories, should they not seek the "general will", as Rousseau advised? V In the United States, the two principal checks on the Chief Executive by the Senate reside in its power to ratify treaties 32 and to confirm or reject appointments .33 At times the Senate has used these constitu- tional powers effectively to thwart presidential initiatives .3A These

3P Art . 2(2), clause 1, U.S . Constitution . 33 Art . 2(2), clauses 2 and 3, U.S. Constitution . 34 The major historical example of non-ratification was the Senate's refusal to ratify the Treaty of Versailles (1919) with the United States merely declaring in 1921 that war with Germany was at an end. In recent decades, the Senate has refused to confirm Lewis L. Strauss as President Eisenhower's Secretary of Commerce in June,

1979] The House of the Federation 525

functions of the American upper house are part of a comprehensive scheme of "checks and balances" . According to Bill C-60 the House of the Federation would possess only the latter power .3s There are separate provisions in Bill C-60 for the confirmation by the House of the Federation of senior appointments " . . . of any judicial, quasi-judicial or administrative body or Crown corporation established by or pursuant to an Act of the Parliament of Canada (other than a court constituted for the better administration of the laws of Canada) that has been designated by the Parliament of Canada to be an institution to which this section applies . . ."ss and for the affirmation of appointments to the Supreme Court of Canada, in each case by a simple majority of members voting in the upper house." If, however, that chamber fails to vote on a Supreme Court nominee within the first fourteen days subsequent to the Speaker receiving notification of the appointment, "the nomination shall be deemed to be affirmed by that House" . In the case of other appointments needing confirmation, in the absence of a vote they are deemed to be affirmed after the passing of thirty days from the 1979 CanLIIDocs 27 receipt of the notice of appointment. To avoid delays, should the House of the Federation stand adjourned or prorogued to a date more than twenty-one days after a Supreme Court of Canada nomination is received by the Speaker (or more than forty-five days in the case of other appointees) the formality of a debate may be dispensed with, and affirmation is deemed to have been given by the House unless ten or more members request a debate on a nominee's suitability . 311 Where, however, an appointment is made of a Chief Justice from the sitting members of the Supreme Court of Canada, no affirmation is required. 3s Although it would seem valuable to have a thorough enquiry into the fitness for their posts of senior government officers and judges of the country's highest court, the foregoing provisions raise some difficult questions . It is patent that not all of the many thousands of government officials can be subjected to scrutiny by the upper house, but when section 70(1) enables Parliament to "desig- nate" institutions to which affirmation applies is the standard one relating to the efficiency of the service or is it a political one? Can the designation be withdrawn as readily and quickly as it is made, or,

1959, or to confirm G. Harrold Carswell and Clement F. Haynesworth, Jr., as President Nixon's nominees to the Supreme Court. These are only a few examples of thé exercise of the powers mentioned. ss S . 70 and s. 107 of Bill C-60. as S. 70(1) of Bill C-60. a' S. 107(2) of Bill C-60 . as S . 70(2) and s . 107 of Bill C-60. as S . 108 of Bill C-60.

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once made, is it irrevocable? Also, the exemption of a sitting member of the Supreme Court of Canada from the requirement of scrutiny when he is appointed Chief Justice is far from being self-evidently desirable. The qualifications for a member of the court and for Chief Justice may differ, as the calibre ofjudicial leadership is a valid subject of enquiry in the latter case, and, whether rightly or wrongly, it is doubtful whether the Senate would have confirmed Abe Fortas, a sitting member of the United States Supreme Court, as Chief Justice when he was nominated in 1968 by President Johnson, although the putative disqualification in that case did not relate to "leadership" ." Another question is simply whether superior candidates for executive or judicial positions will agree to subject themselves to the open scrutiny and sometimes brazen questioning on their personal affairs which such legislative hearings involve . Would not in camera hearings be preferable? Obviously, the power to affirm Supreme Court and senior-level government appointments is the power to influence decisively the

direction of government policy. Policy, moreover, which affects not 1979 CanLIIDocs 27 only Ottawa but the whole federation. One can never be certain how prospective appointees will act, once affirmed, but the United States Supreme Court was manifestly a much more central-leaning body after President Roosevelt had appointed, and the Senate had confirmed Justices Black, Douglas and Frankfurter in the wake of the New Deal . Depending on the climate in the House, prospective judges having a too centralist or too provincialist temper could be rejected . An entrenched court and "Charter of Rights and Free- doms" could more readily than at present be used to invalidate statutes, as the American experience shows, and there would doubtless be a greater disposition to enquire into the "philosophies" of aspirants to the Bench after Bill C-60 was passed . And if judicial philosophy is pertinent here, what about economic views of senior appointees to various national marketing agencies, or to the Bank of Canada, the Foreign Investment Review Agency or the National Energy Board? Would the best man invariably be put forward by the cabinet, or a lesser-qualified person who was also less likely to antagonize the Upper Chamber? Would the cabinet, perhaps, resort to "log-rolling" as American Presidents do, granting favours to members of the House in return for confirming appointments? VI There is one sense in which the design of the House of the Federation shows imaginativeness and originality. By a process of indirect election, its membership would reflect the balance of power in every province, both provincially and federally.

'° James F. Simon, In His Own Image: The Supreme Court in Richard Nixon's America (1973), pp . 102-103.

1979] The House of the Federation 527

With the advent of frequent Federal-Provincial Conferences of First Ministers as a vehicle for so-called executive federalism in recent years, there has developed an increasing disposition to negotiate federal-provincial pacts on the economy, the constitution, and other matters by national conference . The House of the Federation would be, in effect, an alternative "National Confer- ence" to which federal, and perhaps provincial, governments could turn in case of an impasse . In the literature on its new constitutional proposals, the federal government denied any intention to render further federal-provincial conferences unnecessary by its restructur- ing of Parliament . 41 The very form of the new upper house would allow it to put forward alternative proposals which it could assert with plausibility represented a deliberative process involving every significant force in -Canadian federalism. If a Conference of First Ministers failed, where would it be better to turn for fresh ideas? Would prime

ministers or provincial premiers be able to say, in effect, that where 1979 CanLIIDocs 27 formerly they had only one option now they had two? Could the House of the Federation be played off against the Federal-Provincial Conference of First Ministers when there was an apparent roadblock, or when the resolutions of one or the other body were unpalatable for some reason to influential Canadian political actors? In some ways the above concept evokes Prime Minister Trudeau's idea of the "counterweight" as a device for achieving a vigorous federalism." Mr. Trudeau considers that there would be both strong provinces and a strong centre. A desirable equilibrium results when there are vigorous centrifugal and centripetal tenden- cies . He conceives that a single harmony of interests can arise out of the reconciliation of divergent forces. Since the forces shift from time to time, so do the equilibrium and the reconciliation . The whole system is "polycentric" . Since the House of the Federation represents emerging, forces, in frequent electoral contests, forces not always having a voice at First Ministers Conferences, it may more accurately reflect the totality of forces and put forward more acceptable compromise views. At least, it could propose suggestive alternatives . Such a body, in fact, would have many of the characteristics of a "constitutional convention," reflecting all shades of political opinion in the country. It might, therefore, be a useful body to initiate amendments within a new constitutional framework (there is, of course, no amending power set out in Bill C-60). If a two-thirds vote could be secured in the upper house, it is arguable that there

"Op. cit., footnote 7, p . 20 . Il George Radwanski, Trudeau (1978), p. 137 .

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would be a sufficient indication of "national consensus" and the vote of the Commons could be dispensed with . To pass an amendment, all that would be required, in addition, would be the concurrence of Ontario, Quebec, and any two Western and two Atlantic provinces .

Soon after the May, 1979, general election Prime Minister Clark said that in the absence of widespread enthusiasm for the establishment of the Conservatives' proposed "House of the Provinces", his party's proposal for an alternate upper house would be dropped for the present . Thus, in mid-1979, the aim of radically reconstructing the Senate in a new Parliament appeared to be temporarily dead. Despite its faults, there are advantages in the present Senate to an incumbent prime minister. The more centralized appointing power is convenient for cabinet-building, and the "supernumerary clause" (section 26 of

the British North America Act) makes available eight additional 1979 CanLIIDocs 27 appointments, if necessary, on a regional basis, including two from Quebec, which could bring needed fresh representation from the province into the present cabinet. Although section 54 of Bill C-60 allows members of the House of Federation to be called to the cabinet (while section 53(1) retains cabinet responsibility to the lower house) the existing arrangements may simply appear to be too convenient to the present government to be dispensed with. The cumulative effect of the reforms of the upper house proposed in Bill C-60 would be to provide a more single focus in parliamentary decision-making, just as the parallel reform of the Crown in the Bill, would, arguably, give a more single focus to the executive (with the Prime Minister having more leverage in emergencies vis-â-vis the "statutory" Governor General according to section 53) . The multifarious composition of the upper house could make it a deeply divided body. The revision of the West German electoral law just before the 1957 elections was to guard against a fragmentation of splinter parties such as the similar provisions on the House of the Federation make possible. The brief time limits for the passing of legislation and the consideration of appointments would, moreover, ever further intensify existing divisions and render the House relatively powerless . If the House spoke with a united voice, of course, a federal government would ignore it at serious risk, since that voice would represent every significant political force in the country. It would probably rarely so speak, however, since even between Liberal and Conservative members, there would be divisions into "centralizers" and "decen- tralizers" among the federal and provincial representatives in the House .

1979] The House of the Federation 529

Section 56 of Bill C-60 declares that "[t]here shall be one Parliament for Canada, consisting of the Governor General of Canada, an upper house styled the House of Federation and the House of Commons." Thus, for the formula "Queen, Senate and House of Commons," in section 17 of the present British North America Act, two of the constitutive elements in Parliament are changed. There would, accordingly, appear to be a gradual recession of the monarchial principle into the background in Bill C-60, in favour of a "Canadian" Governor General functioning as a ceremonial president, and a trend towards a "unicameral" Parlia- ment.

If one assumes that the three traditional parts ofParliament form a unity, the preoccupation with having half of the members in the upper house represent those voters' preferences which have already been expressed in selecting members in the House of Commons seems odd . It seems to over-complicate representation in Parliament as a whole, and to downgrade the presence of provinces in the upper 1979 CanLIIDocs 27 house. As in other leading federations, the upper house should be preserved as the chamber of the states or provinces, and should have a larger role, not really articulated in Bill C-60, in safeguarding local interests . (It could also, of course, guarantee language rights and affirm senior executive and judicial appointments .) There is too much emphasis on shadowy "regions" with few common interests (for instance, Saskatchewan and British Columbia in the "Western region"), while the real local actors in Canadian federalism are the provinces . Preferable would be a system in which the ten provinces would have equal representation in the upper house on the model of American or Australian federalism. Uncertainty remains concerning whether Parliament possesses constitutional jurisdiction to abolish the present Senate and to replace it with the House of the Federation or a similar upper chamber. This could be done by a constitutional amendment with provincial concurrence, of course, but the proposal in Bill C-60 was to have Ottawa do it unilaterally . Partly as a result of strong doubts expressed on the subject in August, 1978, by Professor W. R . Lederman of Queen's University, before the Joint Committee on the Constitution, the Liberal cabinet ordered a reference to the Supreme Court of Canada, which was argued in the spring of 1979, with a opinion expected shortly . In due course, accordingly, doubts will be resolved. On the federal side it may be argued that the Senate is a chamber of the national legislature which may be altered or abolished by Parliament . Sometimes, in the past, amendments such as the one in 1915 were obtained to secure more regional representation in the Senate, but the securing of the British North America Act (No . 2 .) of 1949, (which does not mention "The

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Senate" as one of those subjects (for instance, language and denominational school rights) unamendable by Parliament, indicates that the upper house is not especially protected . On the other side, it might be argued that the existence of an upper house with special responsibility for the oversight of provincial or regional rights, which is an assumption not only of this but of other federations, is of such paramount importance to the provinces that they would have refused to enter the federation in 1867 without it, and that it is not subject to unilateral change by the central government. 1979 CanLIIDocs 27