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David Docherty
Protecting Canadian Democracy: The Senate You Never Knew by
Senator Serge Joyal, Canadian
Centre for Management Development, McGill-Queen’s University Press, Montreal
and Kingston, 2003, 371 p.
The Canadian Senate in Bicameral Perspective, David E. Smith, University
of Toronto Press, Toronto, Buffalo, London, 2003, 263 p.
Discussion of
Senate reform has quelled somewhat since the days of the Meech Lake Accord and
after that the Reform Party cry for a “Triple E” upper chamber. But it has
never been completely set on the back burner of democratic discussion in
Canada. There is little question that like votes for licenced restaurants in
dry areas, there will always be a strong undercurrent of support for change
when it comes to the Senate of Canada.
This is fine and indeed part of a vibrant democratic debate. But
advocates of reform should bear in mind that well intentioned change might
produce ill conceived consequences. This is no less true of the Senate than it
is of any other state institution.
Interested observers of reform are therefore well served with
the recent publication of two important and timely volumes on the Senate of
Canada. One, a single authored monograph by University of Saskatchewan's David
Smith, looks at the Senate in comparative perspective. The other, an edited
volume by Senator Serge Joyal, blends academic analysis with the views of
practitioners of the upper chamber themselves. Both should be required reading
for anyone with a serious interest in Senate reform. A careful reading of both
volumes should act as a check on the momentary passion of reformers. There is
nothing wrong with reform, but let's make sure we now what we are changing and
why.
This is the second in what one hopes is a trilogy of Smith's
studies of parliament. After completing his examination of the
crown, and the republican option, Smith has now turned his attention to the
Senate. The book, The Canadian Senate in Comparative Perspective, is
broad in scope, and it primary aim is neither to unduly criticize nor support
the Senate, but rather to help us understand this understudied legislature, and
how it is still capable of “defining Canada's all embracing identity” (p. 20).
Smith begins his analysis by first explaining why second
chambers are not a research area unto themselves, in the manner of most other
political institutions. The largest problem is the lack of uniformity of upper
houses. Many jurisdictions have eliminated second chambers, (including five
Canadian provinces, and New Zealand among others) and other nations have never
had them. Further, second chambers have vastly different purposes, functions,
powers, and methods of selection. Of course, the same could be said for all
legislative assemblies, even in unicameral states. But the range within Westminster
parliaments is far greater in upper chambers than lower ones.
Beyond the most obvious differences in selection methods, there
lies the actual powers of upper chambers. We often compare the Canadian Senate
to the House of Lords, as they appear to share many common features. But Smith
reminds us of important differences. The Lords, until recently, was much larger
than the Commons, a distinct feature among upper bodies. It is also a less
powerful body than the Canadian Senate. By contrast, the method of selection of
Australian Senators gives it a greater public legitimacy, than its appointed
Canadian counterpart. And while proponents of Senate reform in Canada might eye
down under with envy, it would be remiss to think that the Australian upper
house, designed to be co-equal with the lower assembly, enjoys nation wide
support at home.
Second chambers all to often are examined only when looking at
representative government as a whole. Small wonder then that it difficult to
build a theory of second chambers. “Bicameralism, as a theory, lacks
independence” (p. 15) and critics often condemn upper chambers for failing to
provide a type of representation they were never designed to fulfill. As a
result, Canadians quickly criticize their Senate for not providing equal
representation of the provinces. Yet unlike the US and Australian Senates,
Canada's red chamber was never based on the representation of sub-national
units, let alone their equal representation. The Canadian Senate was to
be representative of Canada's regions, not provinces. At the same time, such
constitutional provisions as the Senatorial floor do provide a critical mass of
representation for smaller provinces (most notably but historically not only
Prince Edward Island) but in the Commons, not the Senate.
This theme is perhaps the greatest contribution of The Senate in
Comparative Perspective. Beyond the wealth of research and comparative analysis
(and this should not be overlooked), Smith hammers home the central feature of
upper chambers. Citizens should not look to bicameralism as a method for
efficient government. Bicameralism is a check on quick action. In Smith's words
it “rests on obstruction, rather than empower, it restrains government” (p.
176). The Canadian Senate, like the US Senate and the House of Lords was
meant to be a restraining body. Quick government is not necessarily good
government. Understanding this is a good reminder that we cannot change the
Senate of Canada without impacting on other aspects of Canadian democracy, be
they federalism, the Commons, or the courts. It would also threaten the
good, and often under-reported work that the present Senate performs.
It is this latter theme that is central to much of the Joyal
volume. Provocatively titled, Protecting Canadian Democracy: the Senate you
never knew, is a less critical, but no less important look at the Senate. It is
largely a work of academics, though two members of the red chamber, Senators
Murray and Joyal, contribute a chapter each (as well, Professor Gil Remillard, a
former provincial Justice Minister who has a chapter straddles both lines). The
practice of including practising politicians in a book on their own chamber is
a nice addition. True, it might lend itself to more of an apology for existing
faults, than a objective analysis of legislative pro's and con's. However, too
often we academics think that politicians should learn from us, but not the
other way around. Professors can be equally guilty, thinking our ivory tower
shields us from the sometimes unsightly, but reality of the nitty gritty of
politics. This volume does not make either mistake, and should serve as a
model for other examinations of other institutions.
Like the Smith volume, the contributors to Protecting Canadian
Democracy see value in the institutions of Westminster governments. Janet
Ajzenstat, in her historical look at the origins, purposes and development
concludes that there can be no better form of government “for the modern world
than parliamentary liberal democracy.”
This may be a little strong for advocates of large scale
institutional change. But as many of the other authors to this volume point
out, the present Senate does much valuable work. As C.E.S. Franks points out in
his chapter, Senate committees have engaged in detailed and exhaustive studies
of everything from Fisheries, to Foreign Affairs to Finance. As Franks'
points out, the “high calibre” of these reports are too often neglected by the
media and Senate critics.
Beyond investigative work, the Senate also engages in constructive
debate on legislation, as discussed in both Paul Thomas' and David Smith's
chapters. And unhurried by its independence from the Government of the day, the
Senate can take its time not just to reflect on the merits of Bills, but to
actually hear from Canadians. Take for example The Clarity Act. Smith
correctly points out that the Commons spent far less time on public debate of
this critical legislation than did the upper house where, witnesses to the
Senate Special Committee had “an average of an hour and a half” to present
their case to Senators (p. 242). Lowell Murray argues that continuity of
membership on committees and greater levels of legislative experience provides
the Senate with a high level of institutional memory. This is a necessary buffer
against the occasional tidal waves of turnover that the House encounters (as
occurred in 1984 and again in 1993).
That is not to argue that the Senate should remain as is. Talk
of reform will not, and should not, die down. Jack Stilborn highlights the
attempts at remaking the Senate over the past forty years. For undergraduates
unfamiliar with recent attempts at institutional reform, this chapter does a
solid job of revisiting the major reform proposals and demonstrating that,
though failed, they remain as strong foundations for future discussions of
Senate reform. Stilborn recognizes the recent silence on the question of
Senate reform in Canada. It is his hope that if discussion of reform is
renewed, it does not ignore the breadth of previous proposals that have
pre-dated the failures of Meech Lake and Charlottetown. David Smith argues that
non-constitutional reform of the Senate could easily avoid the types of
failures that mega-constitutional attempts faced.
At this stage in Canada's political evolution,
non-constitutional change holds the most hope for success. Part of this could
be done just by more a more thoughtful approach to appointing Senators. Murray,
Franks and others are correct in suggesting that Senatorial success are too
often overshadowed by failures. And in many cases, the failures are not even of
the Senates doing. Appointment to age seventy-five might strike many
Canadians as too generous, but more troubling is a Prime Minister who appoints
individuals at well over the age of seventy. Despite their best intentions,
these Senators will never develop the understanding of Senate to every serve
effectively, let along build up the institutional memory that Senator Murray
sees as important. Further, there is nothing stopping Prime Ministers
from appointing more independent Senators or Senators who represent parties in
opposition to the government. Long periods of one party dominance in the House
due to the vagaries of the electoral system does not have to be mirrored in the
other chamber.
Of course, these and other changes will not satisfy those
Canadians who seek larger structural changes. One imagines that anything short
of abolition or Triple E would fail to meet with their approval. The Senate may
not be in strong public favour, and it is fair game for criticism. But it must
be done with an understanding of the role and functions it was designed to
provide.
This is where these two volumes are most valuable. One does not
have to agree with everything in these books, or for that matter with
everything the Senate does or does not do, to understand the crucial point
these authors are making. In some fashion, the work of the Senate must be
done. It is there to act as a roadblock to hasty action, and to represent
interests that the Commons does not.
David Docherty, Chair, Department of Political Science, Wilfrid Laurier
University
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