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Senate in Canada
Canadian Parliament Structure of parliament: The Senate
The two most notable structural features of the Senate are that it is appointed and that the prime minister and Cabinet do not take part in its proceedings. The Senate has three official roles: to consider regional concerns, to be a chamber of “sober, second thought,” and to protect minorities. (The framers of the constitution were referring not to ethnic minorities, but to any group whose perspective could be trampled by the majority.) Canada’s founders anticipated that the Senate would play a less important role than Commons because its members are not elected. Senators rarely introduce bills but closely evaluate the ones passed up from Commons. Although the Senate can reject or defeat any bill approved by Commons, it rarely does.
The Senate meets less frequently than Commons. It does not have a question period involving ministers, such as the daily event in Commons that draws most of the media attention. Most bills are introduced in Commons, so there is a delay before they reach the Senate. When examining bills, senators may point out the need for technical amendments, but when the government party has a majority in the Senate, the Senate seldom seeks to modify the substance of proposed legislation.
Senators do their most significant work in the standing and special committees. Like their counterparts in Commons, Senate committees review bills, evaluate expenditures and programs, and conduct inquiries into public policy issues. Senate committees often produce more thorough reports than Commons committees for a variety of reasons: Senators do not face reelection pressures; they are less partisan in their approach; and they have more time in office than MPs.
Critics insist that the Senate has failed at carrying out its official duties. They say the Senate does not provide an effective voice for regional concerns because party loyalty has taken precedence. Critics also charge that the Senate has not acted as a chamber of sober second thought and a check on government because, as appointees chosen by the prime minister, senators have endorsed the government’s positions. Finally, critics say that the Senate has failed to protect the rights of minorities, again because the Senate generally follows the majority party’s position. However, many political observers say the complaints about the Senate are overblown. Since senators can often be holdovers appointed by a prior government, they sometimes oppose the current government’s positions for partisan reasons. Many of the Senate’s shortcomings can more appropriately be attributed to its being ignored by successive governments than to a lack of commitment or effort by senators themselves. The Senate occasionally proposes substantive changes to bills, but the government often resists making these changes.
For more than a century critics have called for reforms. Proposed reforms include making the Senate an elected body or one whose members are appointed by the provincial governments. But constitutional and political obstacles have prevented fundamental reforms. (1)
The Original Purpose of the Senate
The Senate was created to fulfil two major roles in the federation. It was to protect and represent sectional interests or those interests peculiar to a region or to linguistic or religious groups. This has become known over time as representing regional interests. The other major role was to act as a counterweight to the popularly elected House of Commons and thus to encourage political stability. The exercise of these roles was to be provided in the “sober second thought” that was to be given to proposed legislation by the Senate.
The role of protecting and representing regional interests is reflected in the structure of the Senate. In 1867, an equal voice was given to each region, originally three, later expanded to four, regardless of the size of its population. This meant that both the less populous provinces and the predominantly Frenchspeaking province of Quebec were to be given some protection against the wishes of a simple majority of Canada’s population expressed in the decisions of the House of Commons.
In 1975, a constitutional amendment provided for representation in the Senate from the Yukon and Northwest Territories on the basis of one Senator for each territory. In the case of Senate seats occupied by the Senators from the territories, there would not be “a province to which the vacancy relates”.
In the Constitution Act, 1982
In the Constitution Act, 1982, any constitutional amendment relating to the method of selecting Senators, the powers of the Senate, the number of Senators from each province, and the residence qualifications of Senators, required the approval of the two Houses of Parliament and the legislative assemblies of at least two-thirds of the provinces containing at least fifty per cent of the population of the provinces.
The 1982 Act limited the authority of the Senate over amendments to the Constitution (including amendments affecting the Senate). Section 47 provided that amendments to the Constitution may only be delayed by the Senate for a period of one hundred and eighty days after they have been approved by the House of Commons.
Description
The Senate is the appointed upper house of the Parliament of Canada. It exercises all the powers of the House of Commons with the exception of the right to initiate financial legislation.[130]
Senators are “summoned” or appointed by the Governor General on the recommendation of the Prime Minister.[131] They must be at least 30 years of age, reside in the province for which they have been summoned and have real and personal property worth $4,000, in excess of any debts and liabilities.[132] Quebec Senators must both reside in and hold their property in the electoral division of appointment.[133] A Senator may resign by advising the Governor General in writing to this effect.[134] A Senator’s place becomes vacant if the Senator is absent for two consecutive sessions; becomes bankrupt or insolvent or a public defaulter; becomes a citizen or subject of any foreign power; is attainted of treason or convicted “of any infamous crime”; or ceases to be qualified in respect of property or residence.[135] Unless they die, resign, are disqualified or their seat is declared vacant, Senators hold office until they retire at age 75.[136]
At Confederation, provision was made for 72 Senators.[137] This number has been adjusted several times, mainly to accommodate the addition of new provinces and territories. For the purposes of Senate representation, Canada is deemed to be divided into four divisions: the Western Provinces, the Maritime Provinces, Ontario and Quebec. To these four divisions have been added Newfoundland and Labrador, the Yukon, the Northwest Territories and Nunavut.[138] The Constitution Act, 1867 now provides for 105 Senators.[139]
The Constitution also allows for the appointment of four or eight additional Senators, equally representing the four divisions.[140] When additional Senators have been so appointed, there may be no further appointments in a division until Senate representation for that division falls below 24.[141] At no time may the maximum number of Senators exceed 113.[142]
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Notes
130. Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 53. “Financial legislation” refers to any bill proposing government spending or imposing taxes. For further information, see Chapter 18, “Financial Procedures”.
[131] During the First Session (2006‑07) of the Thirty-Ninth Parliament, a bill providing for the consultation of electors in a province with respect to their preferences for the appointment of Senators to represent the province was introduced by the minority Conservative government. Bill C‑43, An Act to provide for consultations with electors on their preferences for appointments to the Senate, died on the Order Paper at second reading. In the Second Session (2007‑08), Bill C‑20 with the same title and objective was introduced and subsequently died on the Order Paper after having been referred to a legislative committee for consideration.
[132] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 23.
[133] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 23. Although Quebec now has more than 24 electoral districts or ridings, Quebec Senators are still appointed from the original 24 electoral divisions of Lower Canada as set out in the Constitution Act, 1867.
[134] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 30. In December 1997, the Senate suspended Senator Andrew Thompson’s use of Senate resources, including his telecommunication expense allowance and his travel allowance (except that required for travel between his Ontario residence and the Senate in Ottawa), and ordered him to appear in his place when the Senate resumed sitting after the Christmas recess (Seventh Report of the Standing Senate Committee on Internal Economy, Budgets and Administration, Journals of the Senate, December 9, 1997, pp. 305‑6; December 12, 1997, pp. 358‑9; December 15, 1997, p. 369; December 16, 1997, pp. 378‑81). When the Senator did not obey the order, the Senate passed another motion requiring him to appear before the Standing Committee on Privileges, Standing Rules and Orders (Journals of the Senate, February 11, 1998, pp. 426‑8). On February 19, 1998, the Senate concurred in the Committee’s Second Report, which found the Senator in contempt, and suspended him for the remainder of the session (Journals of the Senate, February 19, 1998, pp. 457‑8). On March 23, 1998, Senator Thompson resigned.
[135] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 31. A Senator’s seat was last declared vacant pursuant to section 31 in 1915 (Journals of the Senate, April 13, 1915, pp. 224‑5).
[136] Until 1965, the term of the appointment was for life (Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 29). The Constitution Act, 1965 provided that Senators would henceforth be required to retire at age 75. Senators appointed prior to the coming into force of the Act would retain the right to remain in office past age 75, if they so chose (Constitution Act, 1965, R.S. 1985, Appendix II, No. 39, s. 1). During the First Session (2006‑07) of the Thirty-Ninth Parliament, a bill changing the tenure of members of the Senate was introduced in the Senate by the minority Conservative government. Bill S‑4, An Act to amend the Constitution Act, 1867 (Senate tenure), died on the Senate Order Paper at report stage. In the Second Session (2007‑08), Bill C‑19 with the same title and objective was introduced and subsequently died on the House of Commons Order Paper after having been debated at second reading.
[137] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, ss. 21 and 22.
[138] An Act to Amend the Nunavut Act and the Constitution Act, 1867, S.C. 1998, c. 15, ss. 43(3) and 45. See also Journals, October 30, 2001, p. 764, and the Constitution Amendment, 2001 (Newfoundland and Labrador), SI/2001‑117.
[139] An Act to Amend the Nunavut Act and the Constitution Act, 1867, S.C. 1998, c. 15, s. 43(1).
[140] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 26. The only time this provision has been used was in 1990. Prime Minister Brian Mulroney invoked sections 26 through 28 of the Constitution Act, 1867, to recommend the appointment of eight additional Senators to ensure passage of government legislation implementing the Goods and Services Tax.
[141] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 27.
[142] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 28. See also An Act to amend the Nunavut Act and the Constitution Act, 1867, S.C. 1998, c. 15, s. 43(2).