Unit 3: Senate

Question 1

An Overview of the Upper House

Answer 1

Constitutionally, the Senate is nearly equal to the House of Commons in terms of powers, and procedurally superior in the the legislative process for passing a bill into a law.

However 4 factors ensure that the Senate is functionally subordinate to the House of Commons:
The Senate is not a confidence chamber’
Senators are appointed by the Governor General on the advice of the PM – they are ‘summoned’ to the Upper House;
Money bills cannot originate in the Senate;
The Senate can only delay constitutional amendments for 180 days under section 47 of the Constitution Act 1982

Question 2

John A. Macdonald and the Senate

Answer 2

Canada’s first Prime Minister, Sir John A. Macdonald, argued that there were two roles envisioned for this institution:

the protection of minority interests.
to act as a chamber of sober second thought to control the democratic impulses of the House of Commons.

Question 3

Composition of the Senate

Answer 3

The Senate has a normal composition of 105 members, though it can be temporarily expanded to 109 or 113 members.

Based on a complex principle of regional representation, augmented by provincial and territorial allocations.

Question 4

Regional/Provincial/Territorial Breakdown

Question 5

Quebec and the Senate: A Distinct Approach

Answer 5

Quebec is the only province that has territorial defined constituencies for the Senate.
24 Senatorial districts, based on the legislative districts of Canada East in the United Provinces of Canada (1841-1867).
An example of ‘asymmetrical federalism’ that exists throughout the Canadian constitutional structure

Question 6

Expanding the Senate

Answer 6

There is a provision of the Constitution Act, 1867 for the size of the Senate to be increased by 8 to a maximum number of 113 Senators (granted by Queen not Governor General).

Section 26 to 28 of the Constitution Act, 1867 discuss this process for temporary expansion in the number of Senators

Question 7

PM Mulroney and the Senate

Answer 7

PM Mulroney used this provision to appoint 8 additional senators to pass the GST, which had been blocked by the Liberal-dominated Senate in 1990.

First and only time section 26 has been used to temporarily expand the Senate.

Question 8

The Liberal Party and the Senate: Free Trade

Answer 8

For much of Canadian history, the Senate has been dominated by the Liberal Party of Canada.

This has created a dilemma for Progressive Conservative and Conservative governments – control of the House of Commons without control of the appointed and Liberal dominated Senate.

This suggests a ‘democratic deficit’ when the Senate has blocked key pieces of government legislation originating in the elected House of Commons: Free Trade (1988) and the GST (1990).

The Senate blocking the passage of the Free Trade Agreement was resolved when PM Brian Mulroney requested dissolution in 1988 and an election was fought on this issue.

Question 9

An Appointed Body

Answer 9

Members of the Senate are appointed, or ‘summoned’ to the Upper House by the Governor General.

Originally appointed for life but through a constitutional amendment passed by PM Pearson, senators must retire at 75 years of age.

Although this is a reserve power of the Crown, the Governor General only summons senators on the advice of the prime minister.

Question 10

Qualifications

Answer 10

Specified in s.23 of the Constitution Act, 1867.

It was not until 1930 that the first female senator was appointed.
Second Appointment - 1953

This was the result of a decision by the Judicial Committee of the Privy Council (JCPC).

Question 11

Women and the Vote in Canada

Answer 11

Disenfranchisement of Women:
Voting limited to British subjects that were 21 years of age and met a property qualification *

Temporary Enfranchisement of Female Relatives of Servicemen:
Wartime Elections Act 1917
Military Voting Act 1917

Enfranchisement of Women:
An Act to Confer the Electoral Franchise on Women 1919

Question 12

Racial and Religious Disenfranchisement

Answer 12

1871: British Columbia disenfranchises Indigenous voters, and Canadian citizens of Chinese, Indian, and Japanese ethnicity.

1917:disenfranchisement of ‘enemy aliens’ during WWI.

1947:Racial exclusions against Chinese-Canadians and Indo-Canadians ends.

1948:Racial exclusions against Japanese-Canadians ends.

1955: Religious exclusions end.

1960: First Nations granted the right to vote in federal elections.

Question 13

The Courts and the Senate

Answer 13

The failure of successive Canadian governments to appoint women to the Senate, despite the ability to vote in federal and some provincial elections, was challenged by the ‘Famous Five’ in the 1920s.

The term ‘Famous’ or ‘Valiant’ Five was in reference to the five women that challenged the failure to appoint women to the Senate:

Emily Murphy, Irene Marryat Parlbry, Nellie Mooney McClung, Louise Crummy McKinney, and Henrietta Muir Edwards

Question 14

The ‘Persons Reference’ Timeline

Answer 14

Reference Questions Submitted to the Supreme Court of Canada
Q1: can women be appointed to the Senate under section 24 of the BNA Act, 1867?
Q2: are women ‘persons’ within the meaning of section 23 of the BNA Act, 1867?

Reference re meaning of the word “Persons” in s. 24 of British North America Act, [1928] S.C.R. 276
Supreme Court of Canada determines that women, while persons, are not persons within the meaning of section 23 of the BNA Act, 1867

Reference to Meaning of the Word ‘Persons’ in Section 24 of the British North America Act, 1867, [1929] UKPC 86.
JCPC appeal reverses SCC decision and introduces ‘Living Tree’ doctrine
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Question 15

Supreme Court of Canada

Answer 15

Women are not ‘persons’ within the meaning of section 23 and cannot be appointed by section 24.

BNA Act is clear – use of masculine in section 23 qualifications denies women the ability to be appointed to the Senate.

Question 16

Judicial Committee of the Privy Council

Answer 16

Reverses the Supreme Court of Canada.
Agrees that the male pronoun is masculine.
Disagrees that this prevents women from being appointed to Senate.
Introduces the ‘Living Tree’ doctrine to guide future judicial review

Question 17

The Impact of the Persons reference

Answer 17

1929: JCPC overrules SCC
1930: 1st Female Senator Appointed
1953: 2nd Female Senator Appointed
1958: 1st Female Federal Cabinet Minister Appointed
2015: Justin Trudeau appoints 1st Gender Balanced Cabinet
2019: Composition of Senate (43%)
M (60); F (45)

Question 18

The Senate and its Reform

Answer 18

The Senate is the least reformed of any parliamentary institution.

Last reformed in 1965 – appointment changed from a life appointment to mandatory retirement at 75.

Since 1970 – a total of 37 attempts to reform without success.

Why Failure?
provincial disagreement over changes
the difficulty of amending the constitution
the judicialization of politics and the reference procedure

Question 19

The House of the Federation

Answer 19

In 1978 the Trudeau ministry attempted to unilaterally change the composition of the Senate:

Bill 78 -  A Time for Action   The Senate would be transformed into the House of the Federation:

half its members chosen by the federal government
half chosen by the respective provincial governments.

Trudeau argued he had authority to change the Senate under section 91(1) of BNA Act, 1867

Question 20

Constitutional Challenge to Unilateral Amendment

Answer 20

The creation of the House of the Federation was challenged by the provincial governments before the Supreme Court of Canada.

A reference or advisory opinion was sought on the constitutionality of unilateral federal amendment via section 91(1).

In 1980 the Supreme Court delivered its response:

Reference Re Legislative Authority of Parliament to Alter or Replace the Senate, 1980

Question 21

Reference Re Legislative Authority of Parliament to Alter or Replace the Senate, 1980

Answer 21

The SCC ruled that section 91(1) did not provide the federal government with the ability to unilaterally amend provisions of the constitution.

Question 22

Harper and Senate Reform

Answer 22

Committed to an elected Senate.

Originally opposed to appointing senators when vacancies occur – resulted in 18 vacancies in the 105-member Senate (2006-2008).

January 2009 (post-prorogument) – PM Harper appoints 18 senators (Wallin, Brazeau, Duffy).

Rationale – still committed to senate reform but needs a majority in the Senate to achieve passage of the government’s legislative agenda.

Question 23

Senate Reform Bills

Answer 23

The Harper Ministry introduced two bills to reform the Senate since holding office in 2006:

An Act to Amend the Constitution Act, 1867 (Senate Tenure)

An Act to Provide for Consultation with Electors on their Preference for Appointment to the Senate

Constitutional Issue - an attempt at unilateral senate reform

Constitutional Problem - 1980 ruling that unilateral amendment of the Senate is not permitted (by the BNA Act, 1867)

Question 24

Constitutional Argument Advanced

Answer 24

Old Constitutional Rules BNA Act, 1867: Argument -
Pierre Trudeau bound by BNA Act, 1867 and the rules governing constitutional amendment under section 91(1)

New Constitutional Rules Constitution Act, 1982: Argument -
Stephen Harper not bound by Old Constitutional Rules but by New Constitutional Rules

2013 Senate Reform Attempts: Argument -
Constitutional as New Constitutional Rules permit unilateral senate reform whereas Old Constitutional Rules prohibited unilateral senate reform

Question 25

Unpacking the Argument

Answer 25

A new procedure for amending the Canadian constitution was introduced in 1982.

The Reference Re Legislative Authority of Parliament to Alter or Replace the Senate, 1980 is no longer precedent because of the Constitution Act, 1982.

The amending procedures outlined in section 41,42, and 43 govern constitutional amendment of the Senate after 1982.
These provisions allow for unilateral changes to the Senate by the Parliament of Canada.

Senate reform by the Harper government is constitutional as it complies with the 1982 amending formula.

Question 26

The 1982 Amending Formula

Answer 26

S. 41 Amendment by unanimous consent
(b)the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;

S. 42 Amendment by general procedure (7/50 rule)
(b)the powers of the Senate and the method of selecting Senators;
(c)the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;

S. 44 Amendments by Parliament (unilateral amendment)
Subject to sections41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

Question 27

The Senate Reform Sequel

Answer 27

The Supreme Court of Canada unanimously rejects the Harper government’s attempt to unilaterally change the method of appointment of Senators, as well as to impose term-limits for Senators.

Question 28

A Two-Part Strategy

Answer 28

Justin Trudeau introduced two changes to the Senate, one in opposition (2014), and one in government (2016).
Opposition – expel all senators from the Liberal Caucus
Government – create an advisory body on senatorial appointments

Question 29

Reform in Government

Answer 29

In a mandate letter to the Minister for Democratic Institutions, Prime Minister Trudeau introduced a series of reforms to be achieved in the first mandate, 2015-2019..

Two commitments are particularly important:

senate and electoral reform

Question 30

Assessing the Trudeau reforms and the SCC reference

Answer 30

Questions to Consider
Was partisanship the most significant issue that required reform?

Can a non-partisan Senate function more effectively as a chamber of ‘sober second thought’

Has the Independent Advisory Board addressed the ‘democratic deficit’ that exists with an appointed upper house?

Is an elected Senate a desirable yet unattainable objective after the 2014 Senate Reference?