Can We Make the Canadian Senate More Democratic?
By Micah Dewey
It is, in the opinion of many opposition parties of the past and the present that the Senate should be abolished and not reformed as the Conservatives under Harper and the Liberals under Trudeau have often called for. Inherently non-democratic appointments must either be fully embraced by the public or abolished altogether. Whereas the will of the people is not consistent, as is the case related to the Canadian Senate, abolition is the only genuinely democratic outcome. However, the abolition of the Senate is nigh impossible. The Supreme Court of Canada ruled in 2014 that in order to abolish the Senate, the unanimous consent threshold must be passed.
In contrast, reforms would only need to reach the general amending procedure. Upon reaching the general amending procedure requirements, the democratic role of the Canadian Senate would be enhanced by the adoption of Prime Minister Harper’s two Senate reform proposals, namely popular election and term limits for senators. Herein the problem lies; constitutional changes, amendments, and reforms have rarely been expedient or, in fact, successful.
The remainder of this paper will be written on the assumption that:
There is indeed enough support to meet the general amending procedure.
The will of the people is essential when it comes to senatorial appointments.
The Senate would be better off reformed than abolished due to existing constitutional frameworks already in place.
Following the Governor-General of Canada’s recommendation, the Supreme Court of Canada presided over a case in determining whether the Conservative government’s propositions, as outlined under House Bill C-7, to be unconstitutional. At the very least, the general amending procedure must be met to change the powers and seating of Senators as referenced in both CA 1867 and CA 1982.
People can look into the Court’s ruling and see issues relating to the composition and current powers of unelected senators. The question then becomes what should be done? In 2019, Independent Senator and nationally recognized pollster Donna Dasko commissioned Nanos to poll the Canadian people to see what they think about the Senate in its current form. The poll found that 77 percent of Canadians prefer the appointment process undertaken by the Trudeau government, which utilizes an independent advisory board instead of direct political appointments (Nanos p.22). Additionally, the poll found that the Canadian people had consistent opinions relating to the Senate’s role. While a super-majority agreed that the new appointment process was superior to the previous method, 81 percent of respondents also claimed that “New Senators not being active in a political party and being independent was a good thing” (Nanos 20). The underlying problem is that despite many of the Senators appointed under Trudeau identifying as Independent rather than Liberal, the Senate’s efficacy has not changed. Undemocratic appointments still leave a bitter taste in Canadians’ mouths, and it is understandable why that opinion is so widespread.
What is the solution to the problem of disenfranchisement and non-representative legislators who seemingly take paychecks to be the government’s yes-men? The cleanest and most democratic way to enact real Senate reform would be to have a national referendum. This referendum would be a nationwide initiative that would be looking to amend the constitution. The House and the Senate would be bound to accept the referendum results to move towards more impactful reforms such as elections and proportional representation.
The “second voice of reason” has been thrown out the window by political appointments, and that has to end. Assuming that the national referendum passes or that the government could achieve the general amending requirements without it, how could the Senate be filled in a democratic and meaningful way? Currently, most Canadians have a negative view of the Senate and partisanship inside the upper house (Nanos p.7). A new proposal includes an elected body based on population and selected via the single-transferable vote (STV) system. Candidates could not be members of a national political party, and there would be no party lines on Senate election tickets. The lack of a party-line would help keep the population both involved and undivided politically.
Single-transferable votes are the most democratic way to elect Senators that are supposed to be the voice of reason in government. Despite the precautionary measures put in place, we could reasonably expect there will always be some level of politicization with a legislative position. Politicization is not always harmful. Theoretically, because the incentivization is on provincial representation rather than the party representation, specific issues such as Western Alienation might subside.
Senators would be elected to four-year terms, with a possibility for a fifth year if a government falls in a Senate election year. The purpose of this is to keep the Senate election separate from the Federal elections. This change alone would make the Senate more accountable to the people for which they are sworn in to represent. The Supreme Court of Canada made it clear in their ruling that this type of change would need to meet the general amending procedure. “The imposition of fixed terms, even lengthy ones, constitutes a change that engages the interests of the provinces as stakeholders in Canada’s constitutional design and falls within the rule of general application for constitutional change” (SCC no. 35203).
Downsides of an Elected Canadian Senate
Institutions and the Courts have their perceptions when it comes to Senate Reform. The Libertarian Fraser Institute has concerns that an elected Senate will lead Canada towards a big government and the legitimization of Ottawa as the centre of power in the country. “With a new, direct voice of the people and the regions in the nation’s capital, Washington gained hugely in legitimacy and continued an inexorable march to the centralization of power into the huge central government that we see today. An elected Canadian Senate would likely have the same effect.” (Gibson) While this is true and concerning, it is more important that people have the right to make that decision than for it to be decreed by a party-appointed Governor-General.
The conservative or libertarian fear of big government often has the opposite effect than they originally intended. In this same article from the Fraser Institute, the author, former leader of the B.C. Liberals, Gordon Gibson, writes, “An elected and powerful Senate with this sort of voting bloc would be a perpetual and powerful engine to transfer wealth via federal taxing and spending from productive to less productive parts of the country.” He is either unaware or blind to the fact that it was indeed those who are more conservative that are likely the ones to benefit from such a system. Giving a province like Ontario the same 24 Senate seats and then propping up a province like Alberta, who currently has three seats to a more proportional number (around 11), gives Alberta, a wildly conservative province, more power to prevent certain legislation from passing both houses. This updated proportionality specifically accounts for the “problems” conservatives from Western provinces have been moaning about for years.
Meaningful Senate reform would give voices to those in the national minority. Unless we are cautious, we will have a problem balancing the power residing in the minority, similar to what we see in the United States. Keeping proportional representation should prevent that from happening in the short term. However, without electoral reform or a different more democratic process, minority rule will be almost inevitable. To avoid minority rule, these elections should be held via a single-transferable vote in off-years.
Single-Transferable Vote and the Demise of FPTP.
With the understanding by all federal parties that the ancient first-past-the-post system of elections being quaint and outdated, this reform would allow for a test run before the full implementation of electoral reform in the House of Commons Federal elections. Each major federal party has used or has run on electoral reform in the last two elections, yet we are still stuck with the outdated voting method held over from colonization. The most significant detriment to democracy in Canada is the first-past-the-post system of electing federal M.P.s. In a province such as Manitoba that voted only 45 percent Conservative, they won 7 of the 14 seats, meaning that roughly 25 percent of votes effectively did not count (Fair Vote Canada Local Representation). In a single transferable vote system, once those 25 percent of people’s initial choice got eliminated, their vote would go to their second choice. Meaning that if someone voted NDP in 2019 in a riding that went solidly to the Cons, nothing would happen. The Conservative candidate reached 50% and won the seat. However, in closer races where neither candidate reached 50% in the first round of tallying, the second choice matters.
Let us take a look at the Federal Green Party Leadership race that concluded in October of 2020.
First-round voting had eventual winner Annamie Paul in first place at just 26.14 percent of the vote. In usual FTTP voting, the election would be over, and the winner would have just over a quarter of popular support. This underrepresentation happens in ridings with close races all the time. Instead, the lowest-ranked candidate who had the least “first choices” would be eliminated, and it would repeat until someone had reached the 50 percent threshold. In this particular race, it went all eight rounds and ended as Ms. Paul received a total of 50.63 percent compared to second place Dimitri Lascaris who ended at 42.22 percent, with the remainder abstaining or being blank ballots (Green Party of Canada Green Leadership Vote 2020). This voting system is the same system that must be used in an elected Senate to ensure the democratic process is used to its fullest extent.
The current Senate’s fundamental problem is not that they are undemocratically appointed but that they effectively do not use their power in the way that benefits the Canadian people, only the parties that have appointed them. There should be a national referendum on replacing existing sitting Senators with proportionally-representative elected Senators via the Single-Transferable Vote system to flex four or five-year terms with a limit of 12 years in office.
Prime Minister Harper had the right idea when asking for elected Senators with term limits, although this system could arguably make it nearly impossible for Conservatives ever to hold the balance of power in the Upper House if done correctly. The underrepresented areas in rural Canada would boost their representation because of this system, which would help alleviate at least some of the feelings of alienation brought upon by Ottawa’s perceived “sins.” Overall, democratic reforms must be taken with the inherent decision to make a system more democratic and not just align with one’s political ideology, and that is why Harper’s plan failed and has lost relevance in recent years.
Fair Vote Canada. “Local Representation.” Fair Vote Canada, www.fairvote.ca/factchecklocalrepresentation/.
Gibson, Gordon. “Senate Reform Starts With the People: Op-Ed.” Fraser Institute, 23 Dec. 2015, www.fraserinstitute.org/article/senate-reform-starts-people.
Green Party of Canada. Green Leadership Vote 2020. Youtube, 3 Oct. 2020, www.youtube.com/watch?v=2O83lgofQSM&ab_channel=GreenPartyofCanada.
Nanos. A majority of Canadians think 2016 changes will improve Senate – positive impressions of Senators up. Canada: April 2019. Web.
Supreme Court of Canada. Reference Re Senate Reform. no. 35203, 25 Apr. 2014. Supreme Court Judgments.