Working together

Improving Canada’s appointed Senate

Serge Joyal, Errol Mendes, Stéphane Beaulac, Don Desserud, David Smith, and Paul Thomas

December 3, 2015.

with some "inked-in" comments relative to my essay and brief "On guard in a global environment," v.E.


I. Foreword
II. Background
      1. Canada and its Constitution
      2. Bicameralism and the existing Senate
      3. Senate reform in general
      4. The ruling of the Supreme Court of Canada
III. Reforms for consideration
      1. Reforms not considered
      2. Criteria for identifying accessible reforms
      3. Reforms recommended for public discussion
      4. Conclusions  0

I. Foreword  1

By common consensus, Sir John A. Macdonald was a brilliant and insightful politician and parliamentarian. Some Canadians believe that Sir John A. and the other Fathers of Confederation got it right when they decided to reserve exclusively for the House of Commons the electoral mandate and the democratic legitimacy that such a popular mandate entails, and to entrust the task of providing sober, second thought of legislation to an appointed Senate based on regional balance and equality.  1-1

Many other Canadians, a majority if the polls are to be trusted, believe that, whether or not the Fathers of Confederation got it right in 1867, modern political values require that the Senate now be reformed or abolished.  1-2

On April 25th, 2014, the Supreme Court of Canada rendered its unanimous ruling in the Reference Re Senate Reform. The Court concluded that replacing the existing appointed Senate with an elected one would require constitutional amendment approved by the House of Commons and seven of the ten provinces with a combined population of 50% of all Canadians. While some believe that building the political consensus to achieve such a reform is within the realm of the possible, others believe that an elected Senate is not achievable at this time.  1-3

The purpose of this Report is to canvass options for reforming the structures and processes of the appointed Senate in order to give it more credibility and allow it to better carry out its constitutional responsibilities.  1-4

On January 28, 2015, the Faculty of Law of the University of Ottawa, responding to a proposal by a number of Senators, hosted a symposium on Senate renewal. The Honourable Serge Joyal, P.C., O.C., Senator, and Professor Errol Mendes, Faculty of Law, University of Ottawa and Editor-in-Chief, National Journal of Constitutional Law, initiated and co-chaired the symposium. Five academics made presentations: Professor Stéphane Beaulac, University of Montreal; Professor Don Desserud, University of Prince Edward Island; Professor Errol Mendes, University of Ottawa; Professor David Smith, Distinguished Visiting Professor at Ryerson University; and Professor Paul Thomas, University of Manitoba. Their presentations are attached as appendices to this paper. Combined, the professors’ presentations offer the perspectives of anglophones and francophones, the common law and civil law traditions, and the Atlantic, Quebec, Ontario and Western regions. This Report gathers their ideas and others that surfaced in discussion at the symposium.  1-5

The Senate exists to serve the public interest and the public interest requires that it be structured in ways and have processes that best carry out the nation’s business. We believe that in this Report the reader will find a compilation of practical ideas to improve the performance of this institution that is fundamental to Canada’s bicameral Parliament.  1-6

Signed by
      • The Honourable Serge Joyal, P.C., Co-chair, University of Ottawa Symposium on Senate Reform
      • Professor Errol Mendes, University of Ottawa, Co-chair, University of Ottawa Symposium on Senate Reform
      • Professor Stéphane Beaulac, University of Montreal
      • Professor Don Desserud, University of Prince Edward Island
      • Professor David Smith, Ryerson University
      • Professor Paul Thomas, University of Manitoba  

II. Background  2

1. Canada and its Constitution  3

Canada is a land of contrasts: though part of the New World, it is one of the world’s oldest democracies. With a relatively small population, it sits on the second largest political landmass in the world. A good neighbour to the world’s largest super power, Canada insists on its independence. It is a country of diversity: aboriginal, French, English, bilingual, multi-ethnic. It is a federation: united in one national bicameral Parliament, yet divided into ten provinces and three territories. No wonder that optimizing Canada’s system of governance has been a challenge from the beginning and remains so now.  3-1

Three prime motives underpinned the 1867 union and explain some of the governance decisions that were made: the need to better politically accommodate the very different societies in Lower and Upper Canada by creating a larger political entity that included the Maritime colonies; the desire to avoid absorption by the Great Republic to the South; and the opportunity to allow westward expansion across the northern half of the continent.  3-2

The principal governance decision made by the Fathers of Confederation and enacted by the Imperial Parliament at Westminster was that Canada was to have a Constitution similar in principle to that of the United Kingdom; this framework is made explicit in the Constitution Act, 1867. And the principal feature of this Westminster framework is that Canada is a constitutional monarchy with a parliamentary system of responsible government, not a republic with a separate executive.  3-3

Adjusting the United Kingdom model of governance to Canada’s political reality required two major exceptions. Firstly, instead of having a unitary government, Canada was to be a federation with a division of powers between the federal government and the provinces. Secondly, since the federal Parliament was to be bicameral but Canada had no nobility, the upper House would be created on a different institutional principle.  3-4

2. Bicameralism and the existing Senate  4

In any bicameral Parliament the lower house is democratically elected, as is Canada’s House of Commons. But a quick survey will reveal that upper houses around the world tend to be unique, fashioned to the specific needs of the society they serve. They serve as many purposes as there are countries. Canada’s Senate is the only institution that was purposely designed by the Fathers of Confederation to serve the needs of the new Dominion; distinctively Canadian at its outset, it remains so 150 years on.  4-1

It is a matter of record that, without agreement on a Senate, Confederation could not have advanced a step. The Supreme Court of Canada has ruled that the Senate is an institution fundamental to Canada’s constitutional structure, at the heart of the birth of the Canadian federation.  4-2

The architecture of the Senate, as conceived of by the Fathers of Confederation and as it has evolved since, is built on the underlying assumption that it is to be a complementary Chamber with respect to both representation and function. Seats in the Senate represent the larger regional interests as opposed to those of the local ridings or constituencies represented in the House of Commons. Since members of the House of Commons are elected, rivalry is avoided by having appointed senators. Popular partisan elections leave portions of the population under-represented and appointed senators can fill the void by representing minorities. With respect to function, while Ministers sitting in the House of Commons have the lead in introducing legislation in that House, the Senate’s legislative role as the chamber of sober second thought allows it to study, shed light on and sometimes improve those initiatives.  4-3

With respect to bicameralism, the principle that the Senate should be a complementary chamber and not a competing rival to the House of Commons was fundamental to the design of the constitutional order and the achievement of Confederation. The principle remains highly relevant today. Maintaining the principle of complementarity in political practice contributes to a stronger and better functioning Parliament; ignoring complementarity as a governing principle can give rise to conflict and stalemate.  4-4

With respect to representation, a seat in either House of Parliament involves more than just a right to sit in a Chamber and vote on legislation: the vote is just one aspect of the much wider duty to participate in the discussion of the affairs of Canada taking place in either of the two Houses. Representation also includes a member’s use of public resources to defend and promote policy positions.  4-5

With respect to powers, the Senate’s ultimate power is its legislative veto. To some, it is counter-intuitive to give an appointed assembly a veto over the legislative proposals of a democratically elected one. While few would contest that an exercise in legislative sober second thought can lead to observations and recommendations, what circumstances can justify the use of a veto by an appointed over an elected house?  4-6

The Hon. Rev. Stanley Knowles, cofounder of the NDP, frequently spoke out against the existence of the Senate's legisletive veto. The essay "On guard in a global environment" attempts to make a case for such legislative veto which is perceived as an "emergency brake." The case is based on the demonstrated weakness of our democracy and on Canadian and global circumstances changing at an ever accelerating pace as our envionment is becoming ever more comples, see the the essay's chapter 5 Abolishing the Senate: A bad idea!  n4-6

In its most draconian form the legislative veto is the power to defeat, but in its milder forms the veto manifests as the power to delay and the power to amend. In these milder forms, the veto provides senators with the leverage they need to negotiate and influence the law-making process respectfully, sometimes invisibly. The power to amend allows the Senate to influence public policy and to carry out its function of “quality control”, sometimes at the bidding of the Government. The circumstances that might justify an amendment are innumerable and are best left in the judgment of the Senate.  4-7

The power to defeat a bill is seldom exercised and considering its use raises the prickly question of when it might be appropriate for an appointed House to defeat the legislative proposal of an elected one. Ultimately, the answer will lie in the collective sense of the Senate that it must do what it thinks right and in the public interest. The court of public opinion may play a major role in influencing the decision as to what is right in the circumstances. Where the sense of the Senate is that public opinion will conclude that senators, despite not being elected, would be justified in defeating a bill in the circumstances, the case becomes one that is ripe for a potential exercise of the veto.  4-8

This is issue legitimacy: where the legitimacy of the position being championed by the Senate can trump the legitimacy of the democratic mandate of the elected House. Examples of circumstances in which the power to defeat has been considered appropriate include where a bill interferes with fundamental constitutional values, such as access to the courts, or where a bill does exactly the opposite of what the government promised to do at the polls.  4-9

Scaling back the Senate’s legislative veto to a suspensive veto has been a recurring suggestion in reform proposals. The veto is at the heart of the Senate’s ability to be effective. It is the basis on which amendments can be negotiated; it is the platform from which the Senate can negotiate for government undertakings. Its existence can have an effect on executive initiatives and House of Commons decisions, causing dubious undertakings to never see the light of day. Without the veto, the Senate would be without real power.  4-10

The essential characteristics of the existing Senate are as follows:  4-11

        •The Senate is a complementary chamber in a bicameral Parliament
        •Senators have a constitutional mandate to discuss the affairs of Canada
        •The Senate has a role in the making of all legislation
        •The Senate provides sober second thought and quality control for Commons legislation and has a legislative veto over it
        •The Senate conducts policy studies through its committees  

        •Senators constitutionally represent their regions
        •Senators are appointed and do not have a popular mandate
        •Senators provide extra parliamentary representation for regions and minorities
        •Senate work is organized along the lines of political party allegiances  

Differences Between the Two Houses:
        •The Senate is not a confidence Chamber
        •Senators are on average older, have more experience and serve longer terms than members of the House of Commons
        •The Senate working environment is more respectful and less partisan since senators must maintain long-term relationships with each other and personal re-election is not an issue
        •For political legitimacy in parliamentary matters the Commons relies on its democratic mandate while the Senate looks for issue legitimacy
        •The Senate has a longer term policy perspective than the House of Commons  

3. Senate reform in general  5

Calls for Senate reform have been made since the early days of Confederation, but reform over the last one hundred and fifty years has been incremental and modest.  5-1

The most important Senate reform since Confederation has been the addition of seats as Canada expanded, creating a new Western region (1915) and thus reducing the proportion of total seats held by Ontario, Quebec and the Maritimes as the original federating regions. In the same vein, seats not included in any of the regions were added in order to accommodate the entry of Newfoundland and Labrador into Confederation (1949) and in order to provide representation for the three northern territories (1975 and 1999). The current seat distribution in the Senate is as follows: Maritime Provinces: 24 seats (Nova Scotia 10; New Brunswick 10; Prince Edward Island 4); Quebec: 24 seats; Ontario: 24 seats; Western Provinces: 24 seats (Manitoba 6; Saskatchewan 6; Alberta 6; British Columbia 6); Newfoundland and Labrador: 6 seats; Yukon: 1 seat; Northwest Territories 1 seat; Nunavut: 1 seat. A second reform, in answer to the Persons Case (1929), was the admission of women as senators. A third major reform (1965) saw the term of senators reduced from life to age 75.  5-2

Other changes have occurred. Although less noticed, these changes have nonetheless had a significant impact on the functioning of the institution. Modern transportation and the increase in the length of the parliamentary year, now effectively from September to June, have increased the proportion of time that a senator must spend in Ottawa. A corresponding increase in the remuneration of senators for the time spent on Senate duty has created an expectation on the part of the public that the position will be treated as a full time job. The budgets and staff of senators have been increased to help them meet this expectation. The increased remuneration of senators and the declining effectiveness of the property qualifications have allowed for the appointment of senators who are not considered wealthy. The frequency of senators serving as ministers of the Crown has been reduced over the years. And finally, the Liberal Party of Canada recently joined the New Democratic Party in closing its national caucus to senators. Furthermore, it banned senators from participating in fundraising activities and from holding positions of responsibility alongside the elected members of the party.  5-3

A development that has had a significant impact on internal Senate culture over the past thirty years has been the increasing barrage of criticism. It is arguable that this constant harangue has not only resulted in a public lack of confidence in the institution but also for some of its members in an internal lack of confidence.  54

The current generation of debate on Senate reform had its origins in Western dissatisfaction concerning that region’s role in national affairs. A feeling that the voice of the West was not being heard by government at the national level translated into a call for a triple-E Senate: elected, effective and equal. The perception was that an equal Senate would counteract the majoritarian bias of the House of Commons that favoured the regional interests of Central Canada (Ontario and Quebec) to the detriment of Western and Atlantic interests.  5-5

The voice of the West to participate in government has now been heard loud and clear and Western alienation has largely been addressed. In consequence, the call for a triple-E Senate is now dated; it was a siren song that was as appealing and politically useful as it was unattainable. It served certain interests in both the federal and western provincial spheres; one could call for Senate reform without ever having to bring it about.  5-6

With respect to elections, the ruling of the Supreme Court of Canada in the Reference re Senate Reform has, at least according to some, placed an elected Senate beyond reach.  5-7

Equality of provincial representation in the Senate is a non-starter and always has been. Who truly believes that it would be fair for a political unit of 150,000 people to enjoy equal representation with one of 13.5 million? In the Senate it is the regions that are equal. And the addition of the six extra seats allocated to Newfoundland and Labrador and the three seats for the territories gives non-Central Canada a majority of Senate seats.  5-8

Fortunately, the West’s growing population has made that region more comfortable with its share of representation in the elected House of Commons and the prospects for growth of that share. In the new House of Commons, following the 2015 election, the Western provinces will have 104 seats, or nearly 1/3 (31%) of the total, only less than Ontario with 121 seats (36%). Together, the West and Ontario can dominate the House of Commons with more than 2/3 of the seats at 67%. While Eastern Canada, composed of Ontario, Quebec and the Atlantic provinces, will also have the same majority at 231 seats or 68%, Central Canada (Ontario and Quebec) will only have a majority of 59%. In the future, it will be Quebec, with 78 seats (23%), Atlantic Canada with 32 seats (9%) and the North with 3 seats (1%) that will be relying increasingly on the Senate for complementary representation in Parliament.  5-9

With an elected and an equal Senate both out of the running, it follows that only a more effective Senate remains as a reasonable and attainable reform at this time.  5-10

It would be disingenuous not to mention the role of the current bout of scandal rocking the institution in fuelling the demand for reform. This turmoil follows similar expense crises at Westminster, in Newfoundland and in Nova Scotia.  5-11

Because of the particular nature of parliamentary work, legislative assemblies face similar administrative challenges. They have developed similar practices to remunerate their members and establish accountability, often looking to each other for models. Some of these practices have been found wanting. Carelessness on the part of members, or outright negligence, is of course unacceptable. Outright intent to commit fraud is all the more outrageous because it so clearly violates the public trust.  5-12

In handling the allegations of wrongdoing by its members, the Senate has acted as it should: conducted the appropriate internal investigations, referred matters to the police where appropriate, audited its Administration and invited in the Auditor General to review the accounts of all senators. Improving accountability and transparency based on the Auditor General’s reports will be an essential Senate reform.  5-13

The most radical Senate reform being debated is that of outright abolition, which would eliminate bicameralism. Many commentators believe that unicameralism is not desirable for the national Parliament of a country as large and diverse as Canada. For those for whom unicameralism remains the goal and abolition the means, the Supreme Court of Canada has now set a high bar: the agreement of the House of Commons and all ten legislative assemblies will be required. Such unanimity will not be easily achieved.  5-14

And in answer to the suggestion that abolition be obtained by the indirect method of not appointing senators, the constitutional requirement that Parliament enact federal legislation with the advice and consent of both the Senate and the House of Commons, when combined with the constitutional requirement for Senate quorum, would eventually result in the federal legislative process grinding to a halt. Would a court provide a judicial remedy where the executive has an immediate and effective solution at hand: to simply recommend the required appointments?  5-15

Those who wish for more substantial reforms such as elections and term limits might well ask themselves why it has been so hard to achieve. The difficulty of making such constitutional changes may be one reason that reform has not come about, but surely it is not the only reason. A second, good reason for the lack of radical reform is that the existing Senate, while not fully satisfactory to anyone, actually embodies a fair balance of competing demands and interests. Senate reform has languished for decades on many an agenda because, while popular with the public, it was not really in the best interests of those responsible for making the constitutional decision. A third reason for the lack of radical reform was discovered by the Australians in their debate to end the monarchical regime: it is relatively easier to rally a call for reform of the status quo than it is to reach consensus on a replacement model. The aims of reform are multiple and can shift over time, making the options for reform multiple and not always consistent or complementary with one another.  5-16

With respect to any particular proposal for reform, the question of who would benefit or lose arises. Not only does the existing Senate not compete with the House of Commons; it does not compete with the provincial governments and assemblies either. While there is a perception in Western Canada that the Senate seat allocation is not fair, Quebec and the Maritimes have already seen their proportion of the seat allocation diminished. Developing reform proposals that give win-win results can be difficult. Sometimes win-win scenarios can only be developed in political packages that are devilishly difficult to craft and sell and that inevitably attract players with unrelated agendas.  5-17

Therefore, a significant element of any reform is the identity of who can accomplish it. While many a reform agenda may not enjoy pre-existing political support as of the date of its inception, political feasibility dictates that a reform will simply not happen if the person, institution or combination of these with the power to bring it about do not really want it to happen. Furthermore, a package of reforms will almost inevitably engage different actors for different elements of the package.  5-18

Our Senate will be far more effective, indeed filling a vital need, by expanding its investigative role to an investigative, anticipating, and critical problem-solving role as justified in Part II and the focus of Part III  n5-18

Looking forward, any reform or package of reforms should have a sound philosophical basis if it is to serve Canada well. A reform needs to be aligned with the meta-principles of the Constitution, which is to say the fundamental and underlying constitutional principles that are in place and that inform the constitutional architecture and supporting rules. Some of these principles find expression in the constitutional texts; the Supreme Court of Canada has identified others. A particularly important principle expressly set out in the Constitution is that of the rule of law. In addition to being philosophically sound, any reform or package of reforms, to have any hope of success, should also be practical, workable and beneficial.  5-19

As stated in their writ of summons, one meta-principle is that senators are appointed "for the purpose of obtaining your advice and assistance in all weighty and arduous affairs which may be the State and Defence of Canada concern."  n5-19

4. The ruling of the Supreme Court of Canada in the Reference re Senate Reform  6

On February 1, 2013, the Governor in Council, by Order in Council, referred a series of questions on Senate reform to the Supreme Court of Canada. Essentially, the federal government wished to know what reforms would require which actors. The Court held the appropriate hearings; it also had the benefit of the views of the Quebec Court of Appeal, which in 2013 had rendered its opinion on similar issues. The Supreme Court issued its ruling on April 25, 2014, answering the six questions asked. The opinion provides certainty and clarity and also provides the context of judicial reasoning for the answers given.  6-1

For the purposes of determining constitutionality and guiding principles of interpretation, the Supreme Court of Canada has developed the foundational concept of the “architecture of the Constitution”, as its basic structure. Integral elements of Canada’s constitutional architecture include federalism; democracy; constitutionalism and the rule of law; and respect for minorities. These organizing principles underlie our constitutional form of government.  6-2

An examination reveals that each of these principles finds expression in the existing Senate as created by the Constitution. Bicameralism is as vital to the peace, order and good government of the country as the division of powers is to the federation. An appointed Senate is compatible with and protects Canadian democracy. Providing additional representation to those under-represented in the elected House relieves tension by giving voice; this includes additional representation for the less populated regions and representation of minorities. Finally, the rule of law requires high-quality legislation, improved by sober second thought. In modern terms, this second legislative review performed by the Senate can be characterized as quality control.  6-3

One might ask how an appointed Senate is compatible with and protects Canadian democracy. The basic point is so fundamental that it bears repetition: an appointed Senate guarantees the exclusivity of the democratic mandate of the House of Commons in federal matters. Furthermore, a bicameral Parliament is a richer concept and fuller expression of democratic government than a unicameral one. In Canada’s bicameral Parliament, the appointment of its members makes the Senate a complement to the House of Commons: a partner instead of a competitor. Appropriate Senate appointments enhance the rule of law in two ways: they enhance the representation of Canadians in their Parliament, and their work enhances the quality of the public discussion in Parliament on the affairs of Canada and the quality of laws that are made.  6-4

The Court found that the Senate is one of Canada’s foundational political institutions, an institution that lies at the heart of the agreements that gave birth to the Canadian federation. Amendments to the Constitution of Canada are not confined to textual changes but include changes to the Constitution’s architecture. The new amendment regime put in place since 1982 reflects the political consensus that the provinces must have a say in constitutional changes that engage their interests.  6-5

Depending upon the nature of the particular initiative, Senate reform may be implemented by constitutional proclamation, federal statute, prerogative power or administrative action. Following the ruling of the Supreme Court of Canada in the Reference re Senate Reform, one can now identify with confidence the range of potential actors as follows:  6-6

ReformRequired actors
AbolitionThe Senate*, the House of Commons and all ten provincial legislative assemblies
Seat allocationNot specifically dealt with, but see the principle that the provinces must have a say in constitutional changes that engage their interests
Elections and term limitThe Senate*, the House of Commons and seven provincial legislative assemblies with 50% of the total population
Abolition of real property qualification applicable to QuebecThe Senate*, the House of Commons and the National Assembly of Quebec
Abolition of property allocationThe Crown, the Senate and the House of Commons
Selection of SpeakerThe Senate and the Prime Minister
Selection process of SenatorsThe Privy Council and/or the Prime Minister
Internal reformThe Senate
* The Senate may participate, but only has a suspensive veto  

It is understood that expanding the Senate's investigative role as mentioned above would be an internal reform, but with the qualification that any attention by our Senate to strengthening Canadian democracy would best be upon request by the Prime Minister or the Privy Council or, perhaps better still, by the Commons.  n6-7

III. Reforms for consideration  7

Canadians have now had over a year to integrate the ruling of the Supreme Court of Canada in the Reference Re Senate Reform into their constitutional and political values and discourse. Politicians now face a choice: keep the status quo and do nothing, or take advantage of the swell in public opinion in favour of reform created by the public debate and bring some improvement to the Senate.  7-1

After identifying which reforms will not be considered and why, this section proceeds to identify appropriate criteria for including reforms and ends by recommending a series of reforms for public discussion.  7-2

1. Reforms not considered  8

This Report accepts as its starting point that an elected Senate is not within reach for now and excludes reforms to bring one about. The related issue of term limits for senators is also excluded. Finally, the Report does not discuss the issue of a re-allocation of Senate seats. All of these reforms require a level of constitutional consensus that at present does not exist.  8-1

Despite these exclusions, many reforms to improve the existing Senate are within reach. Canada’s three national political parties should examine their position on the Senate and its place in the Constitution in the light of the Supreme Court’s ruling. Inspired by Sir John A. Macdonald and the Fathers of Confederation, the parties might even explore how they might work together to bring about those reforms on which they can agree. The provinces should be invited to submit proposals for reform on which they might agree with each other and the federal players. The federal executive can consider the work of the parties and assess the public interest in its own lights. And of course senators themselves should consider what changes can be brought about in-house.  8-2

2. Criteria for identifying accessible reforms  9

The following criteria underlie the selection of the reforms proposed by this Report for study and debate, and should be used to evaluate the proposed reforms:  9-1

        • Within reach
        • Aligned with Canada’s constitutional architecture
        • Beneficial
        • Improves fundamental role and functions
        • Practical and workable  9-2

1) A reform must be within reach: For the purposes of this Report, a reform must be within reach. Reforms requiring use of the constitutional amending procedure requiring unanimity of the provinces or of the procedure requiring seven provinces representing 50% of the population are considered to be beyond reach for now. However, the procedure requiring the agreement of a single province is accessible. Also within reach are reforms requiring an Act of Parliament, reforms requiring an agreement between the Senate and a partner such as the House of Commons or the executive government, and reforms within the sole purview of the executive or the Senate.  9-3

2) The reform must be aligned with Canada’s constitutional architecture: Any Senate reform must be aligned with Canada’s constitutional architecture, values and principles. It must embody or at least respect the following underlying principles of the Constitution laid out by the Supreme Court: federalism; democracy; constitutionalism and the rule of law; and respect for minorities.  9-4

3) A reform should be beneficial: Change for change’s sake is not a recipe for success. A reform should be beneficial and have a purpose; it should improve the performance of the institution, its officers, members or staff, or its relationship with the other constitutional actors and the general public. To be worthy of implementation, a reform should either cure a mischief or create a good. Except as part of a larger package of reforms, a reform should not be mere window-dressing; one should be looking for measurable results that make the Senate more accessible to Canadians, improve its operations, make the institution more transparent and accountable, and generally enhance the public trust.  9-5

4) Reforms should improve fundamental role and functions: Reforms should be aimed at improving the Senate’s representative role and legislative functions. The essential reform objective is to equip the Senate to better reflect the views of regions and minorities, to be more independent and less partisan in its work and to better exercise its mandate to carry out sober second thought and conduct quality control in legislation.  9-6

In re the Senate's representative role, please refer to Chapter 13, Senators who represent Canadians directly ("Citizens' representatives"), and, in this connection in particular also, to the late Senator Forsey's comment that "big, powerful, pushing provinces, working through the frequent federal-provincial conferences, have largely taken over the task of protecting the regions and provinces even in matters under Dominion jurisdiction."  n9-6

5) A reform should be practical and workable: A reform should be practical and workable, focussing on what the Senate can do and on what needs to be done. The administrative burden in the federal sector is already crushing and a reform that entails an increased administrative or paper burden or increased other costs should be carefully assessed before being proceeded with.  9-7

The matters of increased administrative burden and additional costs weigh heavily. The essay does not address them as well as it should. But it does indicate directions that believed to be worthy of pursuing.  n9-7

3. Reforms recommended for public discussion  10

Here then are the reforms this paper proposes for public discussion, together with their related objectives:  10-1

        • 1. Improve the selection process for Senators (public trust and independence)
        • 2. Selection of the Speaker and provide the Speaker with more powers (independence)
        • 3. Assume the responsibility to divide omnibus bills (sober second thought)
        • 4. Assume a more proactive role in financial matters (sober second thought)
        • 5. Increase public participation in Senate deliberations (accessibility)
        • 6. Increase travel in Canada by Senate committees (accessibility)
        • 7. Expand public communications and broadcasting (accountability)
        • 8. Reduce partisanship in the Senate (public trust and independence)
        • 9. Improve accountability and transparency practices (public trust)
        • 10. Strengthen the whistleblowing mechanisms (public trust)
        • 11. Abolish the property qualifications for Senators (modernization)
        • 12. Abolish the Quebec Senatorial Divisions (modernization)  10-2

Reform 1: Improve the selection orocess for Senators  10-3

It is recommended that the selection process for senators be improved.  10-3A

The reality is that, for now, senators will continue to be selected, not elected. Acknowledging this state of affairs opens the door to a second look at the selection process. The constitution provides that the Governor General summons senators. By constitutional convention, the Governor General will only act on advice. Constitutional practice, established by a series of decisions of the Privy Council many years ago, provides that the recommendation of persons for a summons to the Senate is the sole prerogative of the Prime Minister. Various texts allow us to peek in far enough to know that Prime Ministers consult a variety of sources and people in deciding on whom to recommend, especially those in the province to be represented.  10-3B

Naturally enough, Prime Ministers have been inclined to name persons of their own political party to the Senate. This is especially true where the Prime Minister needs to acquire or reinforce a political majority in the Senate that will be called upon to adopt the Government’s legislation. Exceptions to this pattern of naming party supporters to the Senate have occurred, but they have been relatively few.  10-3C

Two central criticisms are levelled against the existing system: partisanship and patronage. The allegation that the Senate is full of party loyalists and bagmen contains an implicit suggestion that these people would otherwise be unworthy to serve. An examination of the credentials of senators, past and present, gives the lie to this suggestion, but the sting remains. However, the current system does place senators in a position of divided loyalties, setting duty to their party against duty to their institution, and it would not be unfair to observe that, on balance, the Senate has come out the loser where such conflicts arise.  10-3D

While there is general agreement that improvements to the existing appointment regime should be implemented, there is no agreement on the actual remedy. Two were debated. Both suggest the creation of a transparent process that would allow Canadians to see the merit of the senatorial appointments being made. However, one would continue to accommodate partisan appointments; the other would move to a non-partisan appointment process.  10-3E

In one view, the need to restore the institution’s credibility and Canadians’ trust requires the establishment of a non-partisan selection process to appoint independent and better-qualified senators. The goals would be to improve representation to be more reflective of gender balance and minorities, to reduce the strength of party discipline in the Senate and to improve the professional backgrounds necessary for sober second thought. Two actions are proposed. The first would be to establish a non-partisan selection advisory body. A possible template for such a committee would be the U.K. House of Lords Appointments Commission, adapted of course to specific Canadian needs. The second would be to ensure the ongoing independence of senators by excluding them from national political caucuses in order to loosen party discipline.  10-3F

In an alternative view, the elimination of political allegiance from the Senate is neither absolutely desirable nor possible. The argument is made that the Senate is first and foremost a political institution whose identity and culture reflects the wider cabinet-parliamentary system of government and the fundamental nature of competitive, allegiance-based politics. Organized parties are central to that system of government. They perform a series of essential tasks and provide the energy that drives the system. This is how the House of Commons works. However public opinion is mistrustful and trust is lost when overinflated partisanship appears to trump service to the common good.  10-3G

One way to improve on the existing system of partisan appointments would be to build on the existing constitution provision that creates the Privy Council of Canada to aid and advise in the affairs of Canada. In the same way that the Treasury Board is a committee of the Privy Council, a committee of Privy Council responsible for recommending selections for appointment to the Senate could be established. A Senate bill creating such a model was introduced some years ago.  10-3H

Under either model, criteria for Senate selection could be established and published in advance so that Canadians can see in what way appointments made meet the policy objectives of the government of the day. The criteria for selection would be both institutional and personal in nature and address the twin purposes of the complementary Chamber: the need for improved representation in Parliament for Canadians, and the need for a Chamber of sober, second thought. Representation, professional experience and reputation are the trinity of objectives.  10-3I

With respect to representation, the objective of gender parity in a House of Parliament might finally be achieved and bring to full fruition, in the 21st century, the true import of the Persons Case. Other selection criteria might address complementing other forms of under-representation in the House of Commons, allowing the Commons to reflect the free will of the people in the election of their representatives while allowing Parliament as a whole to better reflect Canadian diversity. In addition to women, aboriginals, visible and ethnic minorities and handicapped persons are also historically under-represented in Parliament. While the anglophone minority in Quebec has always been well represented, consideration should be given to ensuring representation for the francophone minorities of the other provinces.  10-3J

Selection criteria might also address the performance needs of the institution. How many experienced politicians, public servants, business persons, lawyers, jurists, accountants and social workers, and in what proportion of the total membership of the Chamber, would be desirable to help the Senate function? And in the spirit of diversity, what other sectors of society might be better represented to improve performance? NGOs, governance, unions, health, academia, education, agriculture, fisheries, sports, the arts, charities; all these and more have legitimate calls for additional representation and participation in Parliament.  10-3K

With respect to personal qualities, the first and foremost criteria would of course be to meet those set out in the constitution, with respect to age, citizenship, and qualifying residence for example. However, additional criteria could exact proof of personal qualities such as integrity and commitment to the highest standards of propriety, a record of significant achievement, and a recorded commitment to devote the time necessary to what has become a full time job.  10-3L

Also related to selection, there should be a time frame governing the filling of vacancies, thus allowing the Senate to maintain its working capacity. Finally, if Senate operations are to continue to be organized and function based on political parties, there should be a maximum number of senators for any one party in order to maintain a proper balance in debate.  10-3M

Reform to the process for selecting senators is achievable. The executive, acting alone, can better carry it out than the legislature; thus, it would only require the good will of the Prime Minister and Privy Council. While no law is required, meaningful public recognition of any new consultation process could be given in Parliament. Such a reform would be constitutional. What the Supreme Court of Canada considered improper in the Reference Re Senate Reform was the introduction of a democratic element into the selection process. It seems obvious that the Court was not suggesting that the Prime Minister could not have advisors and processes to assist in selecting persons for eventual recommendation to the Governor General.  10-3N

Reform 2: Selection of the Speaker and provide the Speaker with more powers  10-4

It is recommended that the Speaker of the Senate be selected by senators and be granted more powers.  10-4A

The Constitution provides that the Speaker of the Senate is appointed by the Governor-in-Council. Since the Governor in Council acts on the advice of the Prime Minister, the Speaker of the Senate is essentially imposed on the institution by the Government of the day. Contemporary constitutional values would suggest that an independent and autonomous legislative assembly choses its own spokesperson. Members of the House of Commons elect their Speaker and it is within living memory that the Commons moved from an open election to a secret ballot, all the better to secure to the Speaker the confidence of the House.  10-4B

Having a Speaker selected by senators would strengthen the independence of the institution and improve the confidence of the public. It would allow the Senate to give that office more powers. No matter how much confidence the Senate has in the Speaker of the day, he or she is the Prime Minister’s appointee, not the Senate’s choice. Until the Senate elects its own Speaker, ideally by secret ballot, it cannot consider delegating powers to an office in which it may not have confidence in the present or a future incumbent. For example, the Standing Committee on Internal Economy, Budgets and Administration has elected a Speaker as its Chair three times within memory. However, the right of the Speaker to this leadership role in the management of the administrative affairs of the institution cannot be assumed or formalized until such time as the Speaker is selected by senators themselves.  10-4C

This proposed change can be implemented by agreement with the Prime Minister.  10-4D

Reform 3: Assume the responsibility to divide Omnibus bills  10-5

It is recommended that the Senate assume greater responsibility to divide omnibus bills.  10-5A

A House of Parliament, as an independent and autonomous institution, has the unfettered right to determine what matters it will and will not consider, subject only to accomplishing the constitutional purpose of the House, which is to aid and advise in the affairs of Canada. In the 19th century, House officers drafted legislation, including Government bills, in Parliament. In the early 20th century the Government took over the task of drafting its bills and the Houses acquiesced in this change. That said, it is still within the power of either House to put down any conditions it wishes on the form and content of bills it will accept to consider or pass.  10-B

During the second half of the 20th century, executive Governments, for their own reasons that included political expediency, have resorted more and more often to omnibus bills. Over time, these bills have grown larger and larger and been made to cover matters totally disparate except for the fact that they are the policy of the Government of Canada. This development has been troubling to parliamentarians and to the people at large. There is a sense that the omnibus bill format is an impediment to an appropriate level of parliamentary study of the bills, their underlying policies and related costs.  10-5C

When executive Government practice evolves, parliamentary practices should evolve in response. Neither House might wish to adopt a draconian rule that it will not consider omnibus bills, but it is surely the responsibility of each to adopt rules that allow it to properly assess bills which it is asked to recommend for enactment.  10-5D

The Senate has a special responsibility to ensure appropriate quality control of bills by giving them sober, second thought. In the light of this responsibility, the Senate should undertake a study with a view to establishing a framework for the consideration of omnibus bills: how to identify them; when and how to divide them; how to study them in the Chamber and in committee; how committees report them to the Chamber; and how the Senate reports to the House of Commons on its consideration of any omnibus bill sent to it by that House.  10-5E

In taking a stand on this matter, the Senate should not be intimidated by objections from the House of Commons. If the Government and the Commons wish to see their bills passed, they will either not send omnibus bills to the Senate or they will accept the Senate’s practices for the proper consideration of those bills. The legitimacy of the Senate position would be its strength; it only takes the political will to take a stand.  10-5F

The implementation of this reform would be internal to the Senate, after consultation with the House of Commons and the Executive Government through ordinary channels.  10-5G

Reform 4: Assume a more proactive role in financial matters  10-6

It is recommended that the Senate assume a more proactive role in supervising the Government’s financial management of Canada and seek to reclaim its historic position as a chamber that amends or rejects money bills.  10-6A

Follow the money; thus goes the old expression. According to Dan Connolly, a CBC radio host in Atlantic Canada, writing in the preface to Graham Steele’s book What I Learned About Politics; Inside the Rise - and Collapse - of Nova Scotia’s NDP Government: “… a government’s real priorities are not to be found in campaign literature or in stump speeches. You must follow the money. What a government believes in, what it cares about, what it really stands for, can be understood by what it does and doesn’t spend (our) money on.”  10-6B

A general consensus has emerged in the Canadian body politic that Parliament is not doing a good job in following the money and holding the Government to account for its financial plans and expenditures. Parliament’s repeal of the requirement that the Government come to it for approval of its borrowings is a recent, and some would consider particularly scandalous, example of Parliament’s abdication of its responsibilities.  10-6C

A good if somewhat rocky beginning towards improving the parliamentary supervision of government spending has been the creation within the Library of Parliament of the position of Parliamentary Budget Officer. Relying on its power to amend or reject money bills, the Senate should explore how it can increase transparency and bring accountability to the management of Government finances. There is a base to build on: the valiant work of the Senate Finance Committee. But there are issues of capacity and commitment; there are real limits on how much work one committee, with limited resources, can do in order to scrutinize a budget of almost $300 billion, spread over hundreds of departments and non-departmental agencies.  10-6D

The implementation of this reform would be internal to the Senate, after consultation with the House of Commons and the Executive Government through ordinary channels.  10-6E

Reform 5: Increase public participation in Senate deliberations  10-7

It is recommended that public participation in Senate deliberations be increased.  10-7A

Almost all Senate deliberations take place in public, whether in the Senate or committee. Increased public participation in Senate deliberations would have the potential to fuel public interest in the institution’s business. The Senate should look at its rules and procedures to see where there might be opportunities to increase public participation.  10-7B

Creating an even more active and autonomous committee system could help the Senate’s visibility. For instance, the creation of a Standing Committee on Regional Affairs, or some other mechanism to enhance the Senate’s role in making sure that the voices of the regions are heard should be considered. Senate committees already run an impressive public witness program, but even it can be improved upon, with the objective in this case of providing for even more public participation. More public hearings are recommended, maintaining a balance of diversity of opinions.  10-7C

But the real opportunity for growth in public participation in Senate affairs is in the Senate Chamber itself, since there is almost none right now. While allowing strangers to participate in the actual deliberations of the House might not be appropriate, the Committee of the Whole provides an excellent vehicle for interviewing leading expert witnesses and officers of Parliament. Combining expert witnesses with television coverage of Chamber proceedings (which is currently being considered) could be a potent means for attracting the public interest.  10-7D

Another approach to increasing public participation in Senate deliberations would be through technology. Since large numbers of members of the public cannot be brought into the Senate, why not give them virtual access? Modern technology offers all kinds of ways in which individuals scattered across vast distances could provide input and thus feel that they have had a voice in public affairs. Other legislative assemblies have begun to explore the potential of technology to engage their citizens; the Senate should canvass their experiences for opportunities. For instance, each Senate committee could have a site where members of the public could submit facts, opinions, comments and suggestions while senators are studying a bill or debating policies.  10-7E

In theory, an increase in public participation in Senate deliberations is a decision that lies within the sole purview of the Senate. However, as a matter of political reality, the executive will have a say in whether or not the reform occurs. It is therefore in the Senate’s interest to frame any reform in this direction in such a way that not only the Senate and Canada benefit, but also that the executive government can see how the reform will assist it in the conduct of its affairs.  10-7F

Reform 6: Increase travel in Canada by Senate committees  10-8

It is recommended that Senate committees increased their travel and visibility in Canada. This recommendation is just another example of how to increase public participation in Senate deliberations, but is a reform that is worth its own recommendation.  10-8A

Senate committees have long been known as the workhorses of the institution. It is in committee that the Senate does it best work; it is in conducting policy studies in committee that the longer-term vision of the Senate shines. In 2002 the Standing Committee on Rules, Procedures and the Rights of Parliament issued its 11th and 14th reports under the common title of Modernizing the Senate from within: Updating the Senate Committee Structure. The 11th report dealt with operational issues and the 14th with issues raised by individual senators. The Executive Summary to the 14th report explains the Committee’s recommendations: “In combination, these recommendations would strengthen the role of the Senate as a chamber of representation, supplementary to the House of Commons, and help to ensure that the potential contribution of Senate committee reports to public discussion and policy development by the Government is fully realized.”  10-8B

Since the public cannot all be brought to Ottawa, one initiative to strengthen the role of the Senate and increase the contribution of its committees would be to bring Senate committees to the public in the regions. When members of the House of Commons go out into the regions, it is to return to their ridings and constituency work. This provides an opportunity for complementarity, for senators to travel to the regions and directly involve the public in the fact-finding and policy work being done in Parliament.  10-8C

This particular reform would come with a substantial price tag. But taking Parliament to Canadians is surely a defensible use of the public purse.  10-8D

In theory, an increase in travel in Canada by Senate committees is a decision that lies within the sole purview of the Senate. However, as a matter of political reality, as long as the government in power has the lead role in government budgetary matters, the executive will have a large say in whether or not the reform occurs. It is therefore in the Senate’s interest to frame any reform in this direction in such a way that not only the Senate and Canada benefit, but also that the executive government can see how the reform will assist it in the conduct of its affairs.  10-8E

Reform 7: Expand public communications and broadcasting  10-9

It is recommended that the Senate expand its public communications.  10-9A

According to the press, “The Senate is poised to overhaul its “broken” communications system and end a period of perceived secrecy that some say has hurt its public image.” (Jordan Press, Ottawa Citizen, Wednesday, March 25, 2015, p. A10). According to this article, “Partisan voices are more predominant than that of the institution, which creates a distorted public perception of the Senate as a whole.”  10-9B

Communications are a particularly difficult challenge for a bi-partisan or multi-partisan institution. Finding the common message can be well nigh impossible. And yet it must be done; the institutional need must be served.  10-9C

The article informs that on Tuesday, March 24, 2015, the Standing Senate Committee on Internal Economy, Budgets and Administration unanimously adopted all of the recommendations of an outside report that was ordered as a result of the spending turmoil.  10-9D

It follows that the Senate has begun to address this institutional weakness. Progress needs to be closely monitored and reported to the public.  10-9E

Reform 8: Reduce partisanship in the Senate  10-10

It is recommended that partisanship in the Senate be reduced.  10-10A

Canadians are generally disillusioned with politics and politicians. They are fed up with mindless partisanship and games-playing in legislatures. Make no mistake about it; the public condemnation of this kind of negative partisanship applies first and foremost to the House of Commons.  10-10B

At the same time, the wider malaise spills over on to the Senate. As already noted, partisanship and patronage are two of the pillars on which rests the main public criticism of the Senate. It is not political allegiance itself that is the problem, but the vitriolic, win-at-all costs attitudes and conduct that have been in the ascendant.  10-10C

The Senate, not being elected, can and should look for ways to reduce partisanship within its walls. Changing the culture of the Senate in the direction of a more selective, moderate type of political allegiance will depend greatly upon leadership from the Prime Minister, from leaders of other political parties and from leaders on both sides of the Senate.  10-10D

One attempt to reduce partisanship has been to exclude senators from national caucus; two of the three major national parties now exclude them. A related initiative, mentioned earlier, would be to establish a non-partisan selection commission.  10-10E

Another possible initiative, unexplored in debate and the literature so far, would be to change the organizational structure for the conduct of Senate business from a Government/Opposition model to a Majority/Minority model. The Government/Opposition designations are misleading, suggesting as they do that the Senate might have some role, which it doesn’t have, in the functioning of responsible government. The Senate is not a confidence chamber; only the democratically elected House of Commons can express No Confidence in the government. While the Senate can, in different ways, hold the Government accountable, and can defeat its legislative measures, it cannot bring the Government down and trigger a general election by expressing its lack of confidence. The Government/Opposition designations also lead to confusion when, as has been the case over the last several years, Her Majesty’s Loyal Opposition in the House of Commons is a different party than the Opposition in the Senate. It is a question of tone from the top; a move to the Majority/Minority vocabulary, besides being more accurate, would set the tone for reduced partisanship.  10-10F

A reduction in partisanship within the four walls of the Senate is a decision that lies not only within the purview of the Senate but also within the purview of Canada’s national political parties and their respective leaders.  10-10G

Reform 9: Improve accountability and transparency practices  10-11

It is recommended that the Senate, as a priority, improve its accountability and transparency practices.  10-11A

The Senate has recently completed an audit by the Auditor General of Canada of the Senate Administration. On June 8 it received a further report from the Auditor General on the expenses of individual senators and their offices. Unfortunately, it is also in the middle of a scandal in which several senators are alleged to have misused public funds.  10-11B

It is trite to suggest that Canadians will be looking to the Senate and its Administration to implement the recommendations of the Auditor General or measures equally effective in improving the transparency and accountability of the institution and individual senators. Without vigorous action, and sanctions if need be, there will be no increase in trust.  10-11C

Under the heading of accountability, enhanced performance reporting by individual senators is an initiative worthy of consideration. The Senate has capacity issues; public expectations can be unlimited but an institution of 105 members can only do so much. Every senator needs to do his or her part; if you take the pay you have to do the work. Against this background, the lack of commitment of some individual senators in the past has resulted in a negative public perception that has spilled over onto the institution itself. Since senators are to be allowed to serve long terms, it is not too much to expect that they report to Canadians, on an interim basis, regarding their personal accomplishments in office. A basic reporting system is already in place: the Senators Attendance Policy requires senators to document their attendance to the Chamber and committees. This is a quantitative measure. Sensing the need for greater accountability than this, many senators document, on a qualitative basis, their personal accomplishments in office on their websites. It would be worth exploring the possibility of enhancing this reporting framework for the individual performances of senators. An institutionalized reporting system could be put in place that makes reporting a requirement, sets out reporting timeframes and makes these reports conveniently available for both Senate and public consultation and comment. Most public servants and indeed many other Canadians are familiar with the concept of workplace performance review. A self-reporting system could be respectful of the constitutional autonomy of senators in the exercise of their political judgment and avoid the threat of partisanship that might be inherent in a review by third parties. Reputation is the stock in trade of a politician, and knowing that a report card is coming due would be a significant incentive for individual senators to keep up the good work.  10-11D

Under the heading of transparency, the question of the residence of senators within the meaning of the Constitution could benefit from clarification. Consideration should be given to studying residence for constitutional purposes and, if appropriate, including a definition in the Rules of the Senate. The uncertainty that surrounds the meaning of residence for constitutional purposes and related financial purposes is at the core of many expenses that are the object of judicial and administrative proceedings. It would be helpful to clear up the uncertainty surrounding residence requirements once and for all.  10-11E

The Senate is an autonomous and independent institution. Measures to improve its accountability and transparency are its responsibility and within its powers.  10-11F

Reform 10: Strengthen the whistleblowing mechanisms  10-12

It seems quite extraordinary that even where the constitutional qualifications of a senator or ethical concerns about his or her conduct are raised in the public forum they fail to be raised on the floor of the Senate.  10-12A

Strengthening the whistleblowing mechanisms is actually a subset of accountability practices, but given recent events it is one worthy of its own entry in this Report.  10-12B

The Constitution Act, 1867 gives each and every senator the right to ask a question in the Senate concerning the constitutional qualifications of a colleague. The Conflict of Interest Code for Senators gives each of them the right to raise the possible ethical breaches of colleagues with the Senate Ethics Officer. With this right comes a duty. Yet there is a reticence on the part of senators to question the status and conduct of their colleagues. This reticence is natural enough: reputation is a parliamentarian’s stock in trade and it is a brave senator who will put the reputation of a colleague at risk. Also, senators are colleagues who may have to work together long into the future.  10-12C

But the public interest should not be denied. Senators need to give consideration as to how constitutional and ethical requirements will be aired, protected and enforced effectively when necessary. Multiple solutions are possible, but one needs to be decided on.  10-12D

Reform 11: Abolish the property qualifications for Senators  10-13

It is recommended that abolition of the property qualifications for senators be considered.  10-13

At the time of Confederation, it was normal to require that a person being considered for appointment as a senator have a certain amount of net worth and also own land of a certain value (wealth and property qualifications were also a qualification for election to a seat in the House of Commons in 1867). In the same vein, it was normal to require that senators, after appointment, continue to maintain these holdings. The Constitution Act, 1867 established $4,000 as the limit for each of these separate requirements: the net worth requirement and the landholding requirement. While the modern day equivalent of $4,000 may be as high as $500,000 today in actuarial terms, the constitutional requirement has not been adjusted and remains at $4,000.  10-13

While potential candidates for Senate seats have little trouble in meeting these requirements, in particular cases they can serve as a barrier.  10-13

Public values have evolved and today the property requirements discredit the institution. The time is long overdue when they should be repealed. According to the Supreme Court, such a repeal could be made by Act of Parliament: the Senate and House of Commons, acting together, can provide for its enactment. By way of exception, it must be noted that a repeal of the landholding requirement applicable to Quebec would have a special impact in that province, effectively making it mandatory for Quebec senators to reside in the senatorial divisions for which they are appointed. Therefore, according to the Court, the portion of a repeal of the landholding requirement that is applicable to Quebec would be a constitutional amendment in the nature of a special arrangement procedure and would require resolutions of the Senate*, the House of Commons and the Quebec National Assembly.  10-13

A senator’s residential qualifications in the province or territory the senator represents are totally distinct from and not to be confused with the two property requirements being discussed.  10-13

Reform 12: Abolish the Quebec Senatorial Divisions  10-14

It is recommended that the abolition of the Quebec senatorial divisions be considered.  10-14A

Abolishing the Quebec senatorial division regime is a companion recommendation to abolishing the property qualifications for senators, but must stand as a separate recommendation because it involves different historical and policy considerations and a different mechanism for reform.  10-14B

At the time of Confederation, the population of Quebec was less homogenously dispersed than today; for this reason, Quebec was divided into 24 senatorial divisions in order to assure the Anglophone Protestant communities that they too would have some Senate seats. Historically, this was the first instance of using the Senate to protect a minority. The Quebec senatorial divisions are no longer needed to protect the right of Anglophone Protestants to representation. Furthermore, they fail to provide representation for the territory that has been added to Quebec since the time of Confederation, in 1898 and 1912. In particular, the lands inhabited by the aboriginal populations of Cree in Northern Quebec and Inuit in Nunavik are not legally represented in any of the allocated divisions.  10-14C

The elimination of the 24 Quebec senatorial divisions would be a special constitutional arrangement applicable to a single province and require the special arrangement procedure for amending the Constitution. In consequence, abolishing the 24 Quebec senatorial divisions would require not only resolutions of the Senate* and House of Commons, but also a resolution of the National Assembly of Quebec.  10-14D

4. Conclusions  11

This Report began with a nod to Canada and its Constitution, followed by an examination of the Senate as it actually is and the basis for Senate renewal, including, most recently, the ruling of the Supreme Court of Canada in the Reference re Senate Reform.  11-1

With the background in place, it considered the possibilities for reforming the existing Senate and recommends a series of reforms that arose out of the symposium held at the University of Ottawa on January 28, 2015 and that are worthy of consideration. The recommended reforms are as follows:  11-2

        •  1. Improve the Selection Process for Senators (public trust and independence)
        •  2. Selection of the Speaker by Senators and Provide the Speaker with More Powers (independence)
        •  3. Assume the Responsibility to Divide Omnibus Bills (sober second thought)
        •  4. Assume a more Proactive Role in Financial Matters (sober second thought)
        •  5. Increase Public Participation in Senate Deliberations (accessibility)
        •  6. Increase Travel in Canada by Senate Committees (accessibility)
        •  7. Expand Public Communications and Broadcasting (accountability)
        •  8. Reduce Partisanship in the Senate (public trust and independence)
        •  9. Improve Accountability and Transparency Practices (public trust)
        •  10. Strengthen the Whistleblowing Mechanism (public trust)
        •  11. Abolish the Property Qualifications for Senators (modernization)
        •  12. Abolish the Quebec Senatorial Divisions (modernization)  

And above all, it is fervently hoped after having given thought to this issue for more than two years,
          •  Our Senate becomes pro-active by recognizing that at this time of significant events occurring at ever shorter intervals, it is vital they be evaluated correctly, rapidly and responded to appropriately.

As mentioned in the foreword, the papers of the contributors at the University of Ottawa symposium are attached as appendices to this report. It is in them that the reader can find further detailed information and references.  11-4

It is the hope of the authors that this Report can be a step forward in the progression towards a renewal of one of Canada’s fundamental political institutions in its bicameral Parliament.  11-5

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