One problem of Canadian parliamentary democracy is the concentration of
power in the hands of the Prime Minister and the ascendancy of the Prime
Ministers Office over Parliament. This article looks at some of the reasons
for the weakness of the House of Commons vis à vis the Prime Minister.
It then looks at the Senate and the place a reformed Senate may have in
acting as a counterweight to a system that has been transformed from executive
centred to prime ministerial dominated.
In a representative democracy, individuals are elected to represent the
views of the citizenry and, in theory, meet in a common place to actually
debate public policy. Although the practice of politics is commonly divorced
from the theory, the current rift between the two should concern all Canadians.
It should be noted that as national elections become increasingly leader-centric,
most candidates at the local level pin their political aspirations on the
performance of their party with the hope of punching their ticket to Parliament.
Therefore, when those green seats are distributed in Ottawa, the occupants
are expected following former Prime Minister Brian Mulroneys theory
to sing from the same hymn book. The British practice shows a secular
decline in party line voting
over the past two decades, with even the
Conservative majority government of the 1980s experiencing legislative
defeat on several occasions1. In contrast, the presence of strong party
discipline in Canada has many negative consequences including reducing
the responsiveness from elected officials2. Since dissension is discouraged
and individuals looking to advance their political career usually form
a cohesive team, the centre can exert its considerable influence over backbench
members. Customarily, cabinet solidarity and party discipline are integral
parts of a Westminster-style parliamentary democracy, but should these
traditions serve to restrict debate and circumvent the duty of an elected
representative to question certain conclusions and even partake in the
decision making process?
A matter of consternation among MPs is the fact that the rules on what
constitutes a government defeat are vague and hence flexible
an important matter remains subject to dispute3.
Liberal Party regimes including the three under Chrétien would regularly
muzzle backbenchers by declaring various non-money bills matters of confidence.
The crack of the party whip was exemplified during the emotional debate
to limit compensation to Hepatitis C victims. With the politics of the
issue on their side, the Reform Party moved a motion obliging the government
to pay damages to all sufferers; in an extraordinary move, Chrétien declared
the motion to be one of confidence despite the wording of the motion that
omitted expressing non-confidence in the government4. Furthermore, as his
time in office came to an end, the Prime Minister indicated the omnibus
package to amend the Canada Elections Act would be considered a matter
of confidence another extreme use of the party whip. Despite attempts
to institutionalize a three-line whip modeled on the British example, Paul
Martin ordered many in his caucus to support the party line on moral issues
such as the vote on same-sex marriage. His short tenure as PM did little
to transform a system reliant on access to the political centre or "Who
do you know in the PMO?"
In a parliamentary system, maintaining the confidence of the House is a
fundamental requirement of the governing party. Given that MPs typically
vote as their party dictates, this cornerstone of Canadian democracy is
constantly reinforced. For the government, steadfast support by its MPs
allows for an executive to rule with little threat. For the opposition,
a disciplined caucus allows for a unified and consistent alternative to
be presented to the public. The question is this: can party disciplined
be relaxed while still allowing a prime minister to effectively govern
and simultaneously respecting the notion of responsible government? The
British practice shows that party discipline can be weakened
deviating in any serious way from the principles of responsible parliamentary
government.5 With minimal clout, government backbenchers resort to simply
influencing the decision making process since their only real threat
voting against the government is silenced by excessive party discipline;
this in turn reduces their ability to keep a watchful eye on the executive.
Frustrated with their inability to affect policy, many members of Parliament
simply treat the House of Commons as a short stopover in a long career.
The Temporary Member
The high turnover among MPs prevents the development of institutional memory
a natural prerequisite to properly oversee and, where necessary, curb
the actions of government. Many argue that amateurism the preponderance
of short, interstitial careers has, among other things, robbed the House
of Commons of a cadre of dedicated and experienced MPs capable of challenging
the power of cabinet6 Today, most people do not elect specialists but
instead, send generalists to Ottawa without the proper skill set and experience
to fulfill the duties of a parliamentarian. This claim is further substantiated
by the perceived role MPs have over government decision making: in a survey
produced by Public Policy Forum, October 2000, over 500 senior government
officials ranked Members of the House of Commons second to last in their
ability to influence policy. 7
Norman Ward argued decades ago that most
members of Parliament, far from being legislators who enact laws with the
competence born of experience, are mere transients.8
The critical election of 1993 and the corresponding composition of the
thirty-fifth Parliament serve to highlight the problem of the temporary
member. After the collapse of the federal Progressive Conservative (PC)
Party, Jean Chrétien and his Cabinet had almost all the meaningful experience
in the House. The executive including parliamentarian heavyweights like
Herb Gray and Lloyd Axworthy averaged eight years of federal service
or two full terms, whereas opposition members had barely over a year experience
under their belts9. Simply put, the net result of this gap in experience
was that new members were simply unable to keep the government accountable.
The complex organization of government and the many subtleties of life
in the House, necessitate the need for long serving members able to competently
hold the government to account. Canadas 39th
Parliament is packed with
neophyte politicians: currently, more than one in five members has served
less than two years, while approximately half of all MPs have served around
In Britain, since most members who enter Parliament never sit in cabinet,
MPs there instead of setting their sights on the ministry become effective
committee members and vigorous constituency representatives. The political
reality on the other side of the Atlantic allows elected officials to hone
their watchdog skills over many years. The inexperienced Canadian Member
of Parliament, unable to remove the shackles of party discipline, must
deal with another obstacle in keeping the government to account the multifarious
engagements of the federal government.
Too Much to Catch
In the middle of the twentieth century, the federal ministry consisted
of about twenty individuals; in recent times, Messers Mulroney, Chrétien
and Martin have led ministries double that size. The growth in the number
of cabinet posts has meant a corresponding increase in the federal bureaucracy.
Furthermore, excluding public debt charges, program expenses for the federal
government totalled more than $175 billion in the 2005-2006 fiscal year.
The broadening of government responsibilities has meant the ordinary MP
is mismatched in curbing the influence of a pervasive PMO. Although there
was a time when the Commons did make effective use of the estimates process
to review government plans in detail and to establish guidelines to hold
the government accountable 10 this is no longer the case.
Given that elections are rarely won or lost on questions of management
11 the political context in Canada does not cultivate an environment where
assessing the Estimates is a top priority for elected officials. Since
the opposition is constantly looking for embarrassing miscalculations (e.g.
the gun registry fiasco) or administrative errors (e.g. the sensationalized
HRDC grants and contributions boondoggle) there is limited political
upside in properly reviewing tedious spending estimates.
The inexperience of most MPs coupled with numerous other commitments associated
with public life, suggests the House of Commons will continually be unable
to check the concentration of power in Canadian politics. While the media,
courts and Officers of Parliament like the Auditor General play a part
in checking the executive, they each lack a legitimate political foundation.
Regrettably as has been shown above those officials who enjoy a political
foundation are unable to make proper use of it. Robert Stanfield, a former
Leader of the Official Opposition and Premier of Nova Scotia, wrote that
parliamentary control of government is not effective and it is difficult
to see how it can be made effective because of the vast scope of government
activities 12. An elected Senate would complement an unprecedented
Supreme Court of Canada ruling. In
Canada (House of Commons) v. Vaid, the
court stated that the core function of Parliament is to keep the government
to account 13.
One would be hard pressed to imagine only one chamber
itself not operating at potential capacity able to fulfill this mandate.
This is manifested for example by politically insecure MPs investing little
time becoming well-versed on national issues and instead, tackling public
policy in parochial terms14. As a result, the Senate should be reformed
and given a clear mandate in Parliament.
Bicameralism and the Canadian Senate
The influence of Britain, coupled with the cleavages in Canadian society
paved the way for a second chamber to provide uniform regional representation.
The bicameral system employed in Canada is found in every other federal
state given that every practicing federation has some type of upper house.
Notwithstanding this generalization, the Senate of Canada is unusual as
it does not recognize specific units (read: provinces/territories) but
instead, divides the country into regions.
Although politically an inferior institution compared to the House of Commons,
the Senate did retain a certain degree of relevance in the past.
The most important cabinet positions including the prime-ministership
have been occupied by senators on occasion; in Macdonalds first cabinet,
five out of thirteen ministers sat in the Senate. In 1983 the Trudeau administration
charged a special Senate committee with reviewing the contentious legislation
establishing the Canadian Security Intelligence Service. Furthermore, under
the direction of Allan MacEachen, the Liberal-dominated Senate frustrated
the new Conservative government in 1984-5 when it refused to pass a large
borrowing bill until the spending estimates were properly tabled in Parliament.
Although the bill was eventually given royal assent, the Senate nonetheless
exercised its constitutional authority to independently review legislation
originating in the House. As the Senates legitimacy has been eroded in
the 21st Century, there has been a corresponding decrease in its relevance.
For example, when the Liberal-dominated Senate recently threatened to obstruct
the passage of Jim Flahertys second budget as Conservative finance minister,
Liberal leader Stéphane Dion instructed his colleagues in the Senate to
actually expedite passage of the budget.
Although the upper house regularly recommends technical improvements to
bills, it is unable to veto misguided legislation from an unflinching House
since the Senate operates in a political vacuum and habitually defers to
the elected chamber. The benefit of a sober second thought was a motivating
factor in establishing a bicameral system in Canada. The authors of The
Federalist Papers for example argued in favour of a Senate, consistent
with the Madisonian notion of checks and balances. For example, the U.S.
Senate can advise and must consent to certain government appointments,
including Cabinet positions and the judges of the Supreme Court. In addition,
the Senate must approve international treaties which allow senators the
ability to control certain actions of the executive.
It is unlikely prominent opponents of second chambers in the eighteenth
and nineteenth century could have foreseen the present policy issues that
challenge governments today. An assorted array of subject matters including
intellectual property rights, terrorist concerns, environmental protection
and global free trade for example call for a second house-of-review composed
of independent minded and experienced members.
This will ensure that complex policy issues are thoroughly examined and
engineered to provide optimal benefits for society. Before examining the
role an elected Senate would have in pressuring the government to change
legislation, it is necessary to review its role as protector of regional
(i.e. provincial) interests.
Senate as Provincial Protector
One of the two main functions of an upper chamber is to represent the various
territories of a federation, thereby protecting minority communities. An
examination of the Canadian context reveals the Senates glaring inability
to carry out this role. Since the provinces have not regarded and do not
regard the Senate as an important channel through which provincial powers
are pressed 15 future debates about reforming the second chamber should
not revolve around regional representation. A plethora of formal and informal
mechanisms currently exist within the federation which provide provincial
governments with adequate avenues with which to resolve disputes. The enterprising
attempts of Newfoundland and Labrador Premier Danny Williams to extract
additional economic concessions from Ottawa highlights this point. For
instance, Williams bullied former Prime Minister Martin including removing
Canadian flags from provincial buildings until a deal was made to protect
the provinces offshore royalties against future equalization clawbacks.
The Premier, who represents a constituency of only a small fraction (1.5%)
of the Canadian population, continues to be a thorn in the side of the
current occupant of 24 Sussex Drive. The ability of Williams to extract
money from Ottawa demonstrates the political leverage available to provincial
politicians in their disputes with the federal government, even without
an accommodating second chamber.
Therefore, given that the current antiquated Senate has rarely championed
provincial rights, an elected Senate should be no different.
As mentioned above, the decentralized system of Canadian federalism shields
provinces from undue injustice.
The equalization formula, provincial economic clout resulting from increased
production and sale of natural resources, provincial representation in
the federal cabinet, regular First Ministers Conferences and federal-provincial
ministerial conferences coupled with the December 2003 creation of the
Council of the Federation (along with regional alliances like the Western
Premiers Conference and the Council of Atlantic Premiers) are arrangements
which serve to safeguard provincial interests.
In order to avert sparking another constitutional crisis, copious amounts
of political capital should not be exhausted trying to make the Senate
a true guardian of provincial interests. Canadas First Ministers should
prevent endless wrangling and instead, support efforts to construct an
effective Senate armed with the political foundation to refine bills and
check prime-ministerial government. This in turn will help facilitate
improved legislation and, by necessity, make the executive more sensitive
to provincial needs. The paper now turns its attention to this point
the likely role of an elected Senate in a more responsive policy process.
A Senate with Sway
Implementing some degree of Senate reform and thus changing the interrelationship
of the two chambers of Parliament cannot be studied without an appreciation
for the traditional policy making process. A highly structured policy making
process incorporates many steps and lends itself to prime-ministerial domination
particularly in the case of a majority government leaving the Senate
with a minor role to officially sanction legislation. For the reasons discussed
above, most members of Parliament who devote almost half of their working
time to constituency work are not capable of properly reviewing proposed
legislation. As a former Leader of the Government in the Senate, Sharon
Carstairs correctly asserts that once elected, senators will possess the
same moral authority currently enjoyed by those in the lower house. 16
The legitimacy acquired through popular election can be used to evaluate
bills originating in the House and, more importantly, propose amendments
which cannot be overlooked or criticized as the actions of unelected, unaccountable
A discussion paper published in June 1983 by then Minister of Justice Mark
MacGuigan argued the Senates second look is needed more than ever as
government legislation becomes more complex and time on the floor of the
House of Commons is more strictly rationed. Nearly a quarter of a Century
later, with more powerful PMO members consulting only themselves, the aforementioned
observation seems more and more relevant. This can only be fully realized
if Senators are elected and therefore able to exercise their broad constitutional
Given that a number of reasons exist which necessitate the sudden preparation
of legislation, an experienced Senate would play a valuable role checking
the executive in the House of Commons. For example, after the tragic terrorist
attacks of September 11, 2001, Prime Minister Chrétien rushed the Anti-Terrorism
Act through both the House of Commons and the Senate. Patrick Monahan,
dean of Osgoode Hall Law School argues that the impulsive legislation has
been controversial from the beginning, and includes an inadequate definition
of terrorism. After a divisive debate, the House of Commons in February
voted against extending two contentious measures in the original legislation.
More germane to the topic at hand is the fact that the Liberal-dominated
appointed Senate produced a report urging both provisions be extended.
Although the report was ignored, had an elected Senate produced such a
recommendation, it is unlikely those in the upper house would have tolerated
being circumvented by the House. Instead of simply deferring to the elected
chamber, senators armed with the same moral authority could have pressed
their case more forcefully and potentially provoked more discussion in
Parliament. The federal Accountability Act Bill C-2 is another example
of potentially problematic legislation hurried through Parliament. The
Conservative government, eager to pass one of their election campaign priorities,
did not allocate sufficient time to debate such an omnibus package.
An elected Senate however, unencumbered by time constraints or the excessive
partisanship that characterizes House debates, would be capable of reviewing
legislation and insisting on changes if the executive hoped to implement
its political agenda.
The above discussion has stressed the need for Senate reform to fill the
Parliamentary void which has granted the prime minister the flexibility
to govern with inadequate controls. In the Canadian context and for
the reasons described above it would be superfluous to have an elected
upper chamber charged with protecting either regional or provincial interests.
Therefore, the section below focuses on a small number of reform suggestions
which would facilitate the transition to an elected Senate capable of checking
An Improved Senate Canadian Style
Initiating significant electoral reform is a complex undertaking with potential
unintended consequences. For example, Japanese electoral reform of the
early 1990s did not yield the anticipated benefits, but instead, allowed
the powerful Liberal Democratic Party to re-monopolize political power.
The difficulty of predicting the potential impact of institutional reform
particularly regarding Canadas antiquated Senate is not a reasonable
justification for denying the public effective parliamentarians in the
upper house who can provide a crucial check on prime ministerial power.
Four variables for Senate reform are examined below: an attempt has been
made to balance the need for an effective legislative chamber with the
dominant political traditions in Canada.
The great compromise at Philadelphia in 1787 gave equal representation
of states regardless of population and thus, allowed the union of states
to emerge. More than two hundred years later, Californias 36,000,000 inhabitants
enjoy the same representation in the Senate as the 515,000 residents of
Wyoming. This is not a politically palatable notion in Canada: it is doubtful
any Premier of Quebec would agree to identical representation in the Senate
for Prince Edward Island.
In contrast to the equal Senate proposed in the Charlottetown Accord17,
the suggestion below allows some symmetry to exist while simultaneously
respecting population distribution in Canada. At the same time, it is important
that any proposed allocation of Senate seats correct the under-representation
of Western provinces. Therefore, Table 1 recommends allotting 107 seats
in the upper chamber based on a four-tiered model.
The role envisioned for the Senate in this paper is predicated on the improbability
that a single party could control both parliamentary chambers since it
is assumed that the current first-past-the-post method of translating votes
into seats is not used in a reformed second chamber. Campbell Sharman highlights
the role played by small parties and independent senators in Australia,
who, holding the balance of power, improve the legislative process which
flow[s] directly from the adoption of PR18. Consequently, this discussion
will avoid recommending a specific method of election but suffice it to
say, one of the many PR variants would be employed for the selection of
Senators in Canada.
Given that the responsibility of the government would belong to the House
of Commons only, the Senate should be given the power to amend or reject
all proposed legislation, including money bills. In view of the fact that
the government does not need to maintain the confidence of the upper house,
the logic of party discipline disappears, leaving all votes in the Senate
to be free votes. This removes one of the constraints faced by backbench
MPs and provides the Senate with the necessary flexibility to check the
executive. Legislative deadlocks would be resolved either by providing
an override in the House of Commons with an unusual majority (e.g. two-thirds
majority) or possibly a joint sitting of both chambers. Under these circumstances,
the prime minister would be more mindful of the political mood and unable
to simply dominate the entire policy process. At the same time, the principle
of responsible government would be maintained, albeit in an environment
that fosters greater collaboration.
The term of office is an important variable for a number of reasons. Since
the House is characterized by high turnover among MPs, those in the upper
house must have the experience and institutional memory to hold the prime
ministers feet to the fire. As a result, it is recommended that senators
be given one non-renewable eight year term, or, the life of two parliaments.
Similar to the U.S. model, half of the members of the second chamber would
be elected every four years at the same time as House elections which now
operate on a fixed schedule. Since these are non-renewable terms, senators
would not be burdened with the need for re-election and therefore could
allocate a substantial amount of time to legislative review.
Proposed Distribution of Senate Seats
||British Columbia, Alberta
||Manitoba, Saskatchewan, New Brunswick, Newfoundland and Labrador, Prince
Edward Island, Nova Scotia
||Northwest Territories, Yukon, Nunavut
Public opinion polls frequently highlight the lack of interest towards
traditional politics and parties. The perception of public indifference
is hardened when examining the persistent decline in voter turnout. Although
numerous reasons contribute to this phenomenon, many Canadians particularly
those belonging to a younger generation feel politicians are simply out
of touch with the voters. Although reform of the Senate will not remedy
every problem plaguing Canadian democracy, it will undoubtedly inject an
element of responsiveness that is currently missing from our elected officials
As has been shown above, most members of Parliament are unable to vigorously
represent their constituents and instead, dutifully follow the directives
of party leaders. Excessive party discipline, high turnover in the House
of Commons and the complex activities of government suggest backbench MPs
cannot effectively carry out their responsibilities as parliamentarians.
This in turn intensifies the concentration of power in Canadian politics
and allows the prime minister to dominate the policy process. An elected
Senate composed of self-regulating members able to devote sufficient time
to reviewing legislation will improve the policy process and enhance political
responsibilities for the results. Since the second chamber has never fulfilled
the role of regional delegate, an elected upper house should not diverge
from this practice. Instead, the Canadian Senate should imitate the Australian
upper house as a place where bills are effectively scrutinized and amended.
Furthermore, an elected second chamber in Canada again, similar to the
Australian experience will not simply be a nuisance neglected by the
executive, but an almost equal partner that must be considered in policy
formation. The time has long since passed for a serious discussion at
highest political levels to construct a capable Senate that plays an important
role curbing the power of the prime minister.
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16. Interview with Sharon Carstairs, May 31, 2007.
17. In response to the proposed equal Senate, Quebec Premier Robert Bourassa
produced a provision to guarantee Quebec at least 25 percent of the seats
in the House of Commons in perpetuity
(See Robert Vipond, Seeing Canada
Through the Referendum: Still a House Divided in Publius, Vol 23, no.
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