See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/338345562 The Founders' Senate Article · December 2019 CITATIONS READS 0 12 1 author: J.W.J. Bowden Carleton University 27 PUBLICATIONS 24 CITATIONS SEE PROFILE Some of the authors of this publication are also working on these related projects: Graduate Student View project The Crown and the Constitutional Conventions of Responsible Government View project All content following this page was uploaded by J.W.J. Bowden on 03 March 2020. The user has requested enhancement of the downloaded file. POLITICS & GOVERNMENT The Founders’ Senate — and Ours Canada’s Upper House was (and is) supposed to be partisan — writes James W. J. Bowden ew political debates in Canada have en- 2014, which effectively destroyed any linger- Fjoyed the longevity of that over reforming ing constitutional hope of Senate Reform. the Senate. The controversy over the Sen- The political aftermath of these events has ate’s purpose and whether Senators should strained the Senate over the last six years. be appointed by the Crown or elected by the In July 2013, Prime Minister Harper decided people stretches back to even before Confed- to shuffle all Senators out of Cabinet1 — a eration itself, to at least the 1850s if not the decision which put Harper in the dubious 1840s. Debates over the utility of bicameral- company of the mercurial John Diefenbaker, ism and the Senate’s abolition date back to who went without a Senator-Minister from the beginning of the 20th century. This debate 1958 to 1962, and the similarly inauspicious has persisted for over one hundred fifty years short tenure of Arthur Meighen in 1926.2 This now because the status quo since Confedera- deliberate policy broke with precedent go- tion has prevailed through a combination of ing back to the 1840s. And Justin Trudeau inertia, bad timing, and lack of political will. followed suit with some reforms even be- These cacophonous and quixotic cam- fore he became Prime Minister in 2015. In paigns for Senate Reform — as if in a predict- January 2014, Trudeau unilaterally expelled able cycle — attain their most strident and all Liberal Senators from the Liberal parlia- loudest crescendos when the Conservatives mentary party and caucus without warning, return to power after years, or decades, in thus further marginalising the Senate.3 And opposition and must confront a massive Lib- in 2015, as Prime Minister, Trudeau set up eral majority and the prospect of legislative the Independent Advisory Board for Senate obstruction in the august Red Chamber. As Appointments and pledged to appoint only such, peaks in the Senate Reform Cycle oc- “Independent” Senators, who now sit in their curred in 1911-1913 in the early years of Rob- own Independent Senators Group (ISG) in- ert Borden’s government after Laurier domi- stead of as Liberals or Conservatives. Andrew nated Canadian politics for the previous 15 Scheer, shortly after winning the leadership years, in the late 1980s and early 1990s when of the Conservative Party, caused controversy Brian Mulroney faced the results of 22 years of in 2017 when he pledged to restore the old Liberal rule punctuated only by nine months precedents and appoint partisan Senators, of ineffectual stupidity by Joe Clark in 1979- and again during the election of 2019 when 1980, and, most recently, in the mid-2000s he reiterated that pledge.4 Scheer seems to when Stephen Harper faced insurmountable believe the traditional method of Senate ap- odds after 13 years of Liberal governments. pointments is a satisfactory way to constitute The Senate Expenses Scandal of 2013 an upper house. brought the clamour for reforming or abol- History and precedent are firmly on ishing the Senate to a fever pitch, resulting Scheer’s side: the Senate of the Dominion of in the Supreme Court’s Senate Reference in Canada and its direct predecessor, the Legisla- Autumn/Winter 2019 The Dorchester Review 55 The Founders’ Senate tive Council of the Province of Canada, always mise of simply continuing the Province of operated as partisan chambers. The Senate Canada’s contingent in its Legislative Council of Canada should remain partisan; however, as Ontario’s and Quebec’s representation in Prime Ministers should, from time to time, the federal upper house as a neutral position nominate Senators to the Opposition benches that kept the Great Coalition intact: order to maintain balance and hew to the orig- inal compromise upon Confederation. We [in the Province of Canada] could not leave to the Executive the choice of Legislative Coun- cillors. A conflict might have arisen in the Cab- From Legislative Council to Senate inet before the choice was made, and a party On 1 July 1867, the parliament buildings, administration might have been formed. Legislative Assembly, and Legislative Council of the Province of Canada became the par- hese standings, with 24 Legislative Coun- liament buildings, House of Commons, and Tcillors and thus 24 Senators each for Senate of the Dominion of Canada. Alpheus Ontario and Quebec, formed the basis of the Todd himself, who had served as the last “regions” within the Senate and determined Parliamentary Librarian of the Province of that New Brunswick and Nova Scotia would Canada, became the first Parliamentary Li- receive 12 Senators each upon Confederation brarian of the Dominion of Canada. Ottawa, and, further, that they would each have to the last capital city of the Province of Canada, give up two in order to make room for Prince became the capital of the Dominion of Can- Edward Island within the Maritime Region. ada. But converting the elected Legislative Incidentally, Brown and Macdonald openly Council of the Province of Canada into an disagreed at the Quebec Conference whether appointed Senate of the Dominion of Canada the Province of Canada’s method should ap- resulted from extensive debate at the Quebec ply to the other provinces; Brown favoured Conference of 1864 and in the provincial leg- pluralism and contended, “each province islatures thereafter, and achieving this design should be allowed to take its own mode of required specific statutory provisions and ex- selection,” while Macdonald, in a harbinger ecutive instruments to promulgate them into of his centralising tendencies, insisted on force. Ultimately, these took the form of sec- uniformity: “We should not have a different tions 25 and 127 of the British North America system in the different provinces. It is of great Act, 1867 and statutory instruments flowing importance that all should follow the same from them. mode.”6 At the Quebec Conference, the framers Charles Tupper of Nova Scotia believed gave much consideration to how the first that the new federal upper chamber should group of Senators should be appointed once ensure some balance between parties: “I they rejected the Province of Canada’s novel agree with Mr. Brown that the Legislative experiment in electing Legislative Council- Council should be chosen from all parties.”7 lors, which began in 1855. Instead, the Great His fellow Nova Scotian Jonathan McCully Coalition of Sir John A. Macdonald, George- Scotia agreed, saying: “Due regard should be Etienne Cartier, and George Brown had had to the claims of the Opposition so that agreed that the 24 Legislative Councillors political parties may be equally represented from Canada West and 24 Legislative Coun- in the Legislative Council.”8 McCully then cillors from Canada East — most of whom tabled the motion that became, with some were elected — should simply continue as grammatical modification, resolution 14 of Senators for Ontario and Quebec, respective- the Quebec Conference: ly, in order to prevent their tenuous coalition government formed for the express purpose That the first Legislative Council in the Federal of bringing about federal union of British Legislature shall be appointed by the Crown at North America from collapsing into bitter the recommendation of the Federal Executive partisan acrimony.5 Brown saw this compro- Government upon the nomination of the respec- 56 The Dorchester Review Autumn/Winter 2019 The Founders’ Senate tive Local Governments, and that in such nomi- 14. The first selection of the Members of the nation due regard be had to the claims of the Legislative Council shall be made, except as members of the Legislative Council of the Oppo- regards Prince Edward Island, from the Legis- sition in each Province, so as that all political par- lative Councils of the various Provinces, so far ties be as nearly as possible fairly represented.9 as a sufficient number be found qualified and willing to serve; such Members shall be ap- Tupper would go on to steal the credit from pointed by the Crown at the recommendation his colleague and claim the idea of appointing of the General Executive Government, upon existing provincial Legislative Councillors as the nomination of the respective Local Gov- the first group of Senators in ernments, and in such nomina- his autobiography: tion due regard shall be had to the claims of the Members of On my motion it was agreed The Senate of the the Legislative Council of the that the first federal senate Dominion and its Opposition in each Province, so should be composed of the that all political parties may as members of existing leg- direct predecessor, nearly as possible be fairly rep- islative councils of all the the Legislative resented.13 provinces, the various gov- ernments to select them in Council of the t this stage, the British equal numbers from both Province of Canada, ANorth American Fram- parties as far as practicable.10 ers referred to the upper always operated as chamber of what would be- Leonard Tilley of New partisan chambers. come the Parliament of the Brunswick, who later joined Dominion of Canada as the Macdonald’s cabinet after “Legislative Council” instead Confederation, concurred of as the Senate.