Restructuring the Canadian Senate through Elections

choices Vol. 14, no. 15, November 2008 ISSN 0711-0677 www.irpp.org
Strengthening Canadian Democracy
IRPP
Bruce M. Hicks
and André Blais
Restructuring
the Canadian
Senate through
Elections
Bruce M. Hicks is currently part-time faculty at
Concordia University, and holds a SSHRC Joseph-
Armand Bombardier CGS Doctoral Fellowship at
the Université de Montréal. A former political
strategist, journalist and publisher, he has been a
reporter for United Press International (UPI) and
National Public Radio and was Ottawa bureau
chief for UPI, a syndicated columnist in mostly
Thomson newspapers, and has created and edited
such resource books as The Parliamentary
Rolodex and the Financial Post’s Directory of
Government. As an academic, his research has
appeared in Constitutional Forum, Review of
Constitutional Studies and Parliamentary
Perspectives, as well as IRPP’s Policy Options and
Policy Matters. His current research interests are
Senate reform, the Constitution, and political
participation and representation.
André Blais is a professor of political science at
the Université de Montréal and holds the Canada
Research Chair in Electoral Studies. He is a fellow
of the Royal Society of Canada, and a research
fellow with the Centre for the Study of Democratic
Citizenship, the Centre interuniversitaire de
recherche en économie quantitative, and the
Center for Interuniversity Research Analysis on
Organizations. He is a past president of the
Canadian Political Science Association and has
authored and edited 18 books, of which the most
recent is To Keep or To Change First Past The
Post? The Politics of Electoral Reform. His current
research interests are elections, electoral systems,
turnout, public opinion, and methodology.
This publication was produced under the
direction of Geneviève Bouchard and Leslie
Seidle, Research Directors, IRPP. The manuscript
was copy-edited by Barbara Czarnecki,
proofreading was by Mary Williams, production
was by Jenny Schumacher, art direction was by
Schumacher Design and printing was by AGL
Graphiques.
Copyright belongs to the IRPP. To order or
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All IRPP Choices and IRPP Policy Matters are
available for download at www.irpp.org
To cite this document:
Hicks, Bruce M., and André Blais. 2008.
"Restructuring the Canadian Senate through
Elections.” IRPP Choices 14 (15).
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Contents
2 Introduction
3 Lessons from Other Countries
10 The Harper Government’s Senate Reform Proposals
16 Conclusion
17 Notes
19 References
21 Résumé
22 Summary
Strengthening Canadian
Democracy / Renforcer la
démocratie canadienne
Research Directeur / Directrice de recherche
Geneviève Bouchard
Since the 1960s, increased levels of education
and changing social values have
prompted calls for increased democratic
participation, both in Canada and internationally.
Some modest reforms have been implemented in
this country, but for the most part the avenues
provided for public participation lag behind the
demand. The Strengthening Canadian Democracy
research program explores some of the democratic
lacunae in Canada’s political system. In proposing
reforms, the focus is on how the
legitimacy of our system of government can be
strengthened before disengagement from politics
and public alienation accelerate unduly.
Depuis les années 1960, le relèvement du
niveau d’éducation et l’évolution des
valeurs sociales ont suscité au Canada
comme ailleurs des appels en faveur d’une participation
démocratique élargie. Si quelques modestes
réformes ont été mises en oeuvre dans notre pays,
les mesures envisagées pour étendre cette participation
restent largement insuffisantes au regard de
la demande exprimée. Ce programme de recherche
examine certaines des lacunes démocratiques du
système canadien et propose des réformes qui
amélioreraient la participation publique, s’intéressant
par le fait même aux moyens d’affermir la
légitimité de notre système de gouvernement pour
contrer le désengagement de plus en plus marqué
de la population vis-à-vis de la politique.
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2
Introduction
Shortly after the 2006 election, at an IRPP
working lunch on the reform of democratic
institutions held on May 8, 2006, Senator
Hugh Segal, the moderator of the discussion,
informed the audience that the new Conservative
government would shortly be unveiling an initiative
to reform the Canadian Senate. He did not offer
details, other than to say that it would be designed to
avoid the dreaded constitutional negotiations that for
the previous two decades had ended only in acrimony,
disappointment and additional fissures in the
constitutional fabric.
Four weeks later, in the Senate of Canada, the first
of two pieces of legislation was introduced: An Act to
Amend the Constitution Act, 1867 (Senate Tenure).
This bill proposed amending the Constitution by the
federal Parliament alone so as to reduce senators’
terms to eight years from the current appointment
until age 75. Then, on December 13, 2006, the government
tabled in the House of Commons An Act to
Provide for Consultations with Electors on Their
Preferences for Appointments to the Senate (Senate
Appointment Consultations Act). This second bill, a
simple Act of Parliament, would have authorized the
federal cabinet to order the chief electoral officer (or,
alternatively, provincial chief electoral officers) to hold
elections in any province or territory to determine who
should be appointed to the Senate. Though these elections
were purported to be simply consultative, and
justified as a temporary measure until proper Senate
reform through constitutional means could be undertaken,
the effect would have been to ensure that in the
future all senators would be elected in province-wide
elections through a form of proportional representation
known as single transferable voting (STV).
Restructuring the
Canadian Senate
through Elections
Bruce M. Hicks and André Blais
the Harper government in the 39th Parliament. As noted,
this proposal was billed as simply a temporary measure to
permit the prime minister to obtain public input into his
appointments. However, the legislation provided detailed
rules for holding elections under STV. This proposed system
and its implications need to be properly understood.
After all, electoral systems, on one level, reflect a society’s
values by determining the rules by which citizens choose
their representatives in a democracy.
It is noteworthy that in each province where some
form of proportional representation has been considered,
the principle has been that any change to the
method of selecting legislators must have the widest
possible public consultation, and a number of provinces
have therefore conducted citizens’ forums and referendums.
2 Yet the Harper government’s approach to these
two bills, one of which would actually have changed
the Canadian Constitution even if it only required passage
through Parliament, was that they should be treated
no differently than ordinary pieces of legislation.
Lessons from Other Countries
Senates, and bicameralism3 more generally, are
insufficiently studied by academics and largely
ignored by political elites, particularly in comparison
to lower chambers, like the House of Commons. The
German Bundesrat, which was the idealized model for
many of the Canadian Senate reform proposals advanced
in the early part of Canada’s patriation round of constitutional
negotiations in the late 1970s and early 1980s, has
not been "adequately examined in parliamentary
research,” even in Germany (Thaysen and Davidson 1990,
7). Patterson notes that the United States Senate, which is
arguably the most powerful upper chamber in the world
and has been the model for many Latin American senates,
"was largely neglected by political scientists until
the 1980s,” and the British House of Lords, which was the
template for bicameralism in general, "attracted little
scholarly attention until the 1990s” (Patterson 1999, x).
To further complicate our understanding of upper
chambers, the approach to scholarship varies by country.
Countries with unitary systems of government, particularly
countries with unelected upper chambers,
appear to generate interest only in the deficiencies of
their upper chambers; while in countries that have
influential upper chambers — that is, countries that
have elected chambers or are federal — the focus is on
conflict and power distribution between the two cham-
The government prorogued Parliament on
September 14, 2007, and both bills died on the order
paper. But both were reintroduced one month later
and numbered C-19 (Senate Tenure) and C-20 (Senate
Appointment Consultations Act). When a federal election
was called for October 14, 2008, the advance of
these bills was halted again. However, the Harper
government has said it will reintroduce both of these
pieces of legislation when Parliament resumes.
These are significant pieces of legislation for two
important reasons. First, they propose changing the
Senate from an appointed body to an elected body
without holding federal-provincial negotiations and
obtaining provincial legislative concurrence. Second,
the federal government is recommending for the first
time a form of proportional representation, a departure
from every previous government’s Senate reform
proposals and also from every federal government
position on parliamentary elections in the modern era.
This proposal is therefore deserving of great attention
by Canadians. Yet, to date, it has drawn scant
interest from the media. This is perhaps not entirely
surprising, as the Canadian Senate is generally
ignored. It is not seen as a politically relevant body,
and research about it is usually limited to the single
perspective of what this chamber was designed to
offer, what it can offer and what it has offered to a
parliament based on the Westminster model of
responsible parliamentary government.
Yet the very fact that a federal government placed
these two pieces of legislation before Parliament calls
for a broader analytical perspective. The constitutional
implications alone necessitate a proper understanding
of whether changes that purported to be nothing
more than ordinary legislation designed to permit
public input into prime-ministerial appointments
could materially affect the balance of power within
Parliament (or between levels of government). In
short, can structural change be achieved through
election rules?1
To partially answer this question, the evidence
from other countries with respect to bicameralism
will be reviewed, in terms of both the configuration
of second chambers generally and electoral systems
specifically, in the first part of this study. This perspective
is essential since there is, at least in our current
understanding, no instructive theory on
bicameralism that recommends a particular organizational
structure.
The second part of this study will focus on the
Canadian Senate and the specific proposal advanced by
3
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The most common structure for representation in an
upper chamber is geographic. Even in historical
appointed chambers where membership was based on
the "estates,” representation was geographic in that
members of the aristocracy had originally been given
areas of the country to administer as feudal lords, and
the spiritual lords also had their regions — the bishops’
sees or dioceses. The relationship between representation
and geography is more pronounced in federations, as it
is usually by territorial boundaries that the subadministrative
units are established (though the units themselves
may reflect distinct cultural or ethnic groupings).
Table 1 lists the 24 countries that currently operate
under federalism. It is noteworthy that all but five of
the world’s federations also employ bicameralism,
particularly given that federalism is itself based on
competition between divided levels of government. In
all these federal bicameral legislatures, representation
in the upper chamber at the federal level is tied in
some way to the lower level’s administrative units,
either by using the same geographic boundaries for
direct election or appointment, or by permitting indirect
election by the administrative unit.
It is also significant that even in federal countries
where the second house represents regions, provinces
or states, and the first house represents overall population,
the exact number of seats assigned to each
geographic unit within the upper chamber varies dramatically
by country and is not usually based on
equality or population, but is determined by some
formula midway between the two.6
The most common method of selecting representation
in the upper house is through direct election.
Countries with direct election of the entire upper
chamber are Australia, Bolivia, Brazil, Colombia,
Czech Republic, Dominican Republic, Haiti, Japan,
Kyrgyzstan, Mexico, Palau, Paraguay, Poland,
Romania, Switzerland and the United States. In a
number of other countries, the core representation of
the upper chamber is directly elected and then supplemented
by indirectly elected or appointed members.
Indirect election is half as common as direct
election, with most indirect elections conducted by
local or provincial legislatures or, as in the case of
France, local electoral colleges. Almost a third of the
upper chambers are appointed, including those of
Germany, where appointments are by the provincial
or Land governments, and former and current British
colonies like the Bahamas, Barbados, Canada,
Grenada, Jamaica and Saint Lucia, where appointments
are made by the governors general.
bers (Tsebelis and Money 1997).4 Although Canada is
a federal country, the role of the unelected Senate in
servicing federalism by advocating on behalf of
provincial, particularly governmental, interests has
always been doubtful (Watts 1996, 2003; Russell
2000; Smith 2003; Forsey 1982), so scholarship tends
to be similar to that of unitary countries.
This dearth of scholarship means that bicameralism
is "under-researched and under-theorized” (Uhr
2006, 474) and is, at least in the current literature, "a
concept in search of a theory” (Shell 2003). That
doesn’t mean that no one has tried to theorize about
bicameralism; it only means that no comprehensive
theory that might be useful to our purposes exists. In
fact, Patterson and Mughan (1999), Tsebelis and
Money (1997), Lees-Smith (1923), Marriott (1910) and
Temperley (1910) have each tried to identify a theory
of bicameralism through comparative analysis combined
with an examination of the theoretical works
of the early Greek political philosophers who advocated
"mixed government” and the seventeenth- and
eighteenth-century theorists who gave the world the
theory of federalism. However, their conclusions are
little more than a recognition that upper chambers
tend to perform the dual function of representation
and review (Hicks 2007, 22). While not an overly useful
theory for understanding how Canada should
structure its second chamber, it does provide a useful
framework for comparing legislative chambers across
polities. (For ways of classifying bicameral legislatures
see Lijphart 1984; Mastias and Grangé 1987.)
Representation
The alternative mechanism that an upper chamber
provides for representation in diverse societies may
explain the general attraction of bicameralism and its
particular appeal for federal countries. Unitary countries
are fairly evenly divided between unicameral
and bicameral legislatures (Lijphart 1999, 202),
though "two-thirds of democratic national legislatures
are bicameral” (Uhr 2006, 477 [emphasis in
original]). And while federal countries account for
only one-third of bicameral systems in the world
(Patterson and Mughan 1999, 10), the "model of
bicameral federalism spread so widely that today virtually
all federal countries have bicameral legislatures”
5 (Tsebelis and Money 1997, 6). The only strictly
foundational principle for an upper chamber evident
from comparative analysis is that there must be
structural differences in representation between the
two houses (Russell 2000).
ment by the central government, they are likely to represent
the country’s interests more than regional interests.
Review
It has been argued that when looked at comparatively,
regional representation is not necessarily required and
that review is therefore the more important of the two
functions (Brennan and Lomasky 1993, 214). This is a
misconception since it is rare that representation in both
chambers is based on the same principle. Even where a
similar mechanism for selection has been used for both
chambers, the differences in size between the chambers,8
combined with the different terms or dates of selection
and the variable opinion of voters, will always ensure
that the representation principles in the two chambers
will be different (Tsebelis and Money 1997, 53-4).9
Lijphart argues that for a country to have a strong
upper chamber, it must have different representation in
the second chamber, similar constitutional authority to
veto legislation and the public legitimacy to exercise that
authority (1999, 200). Upper chambers with elected members
tend to have power coequal to that of their lower
houses, whereas appointed or hereditary houses are often
restricted in their legislative powers (Tsebelis and Money
Whom a representative is to represent is of course
disputed, with Madison famously arguing in 1787 that
representatives are delegated authority from the citizenry
(see Rossiter 1961), and Burke in 1790 suggesting
that all members of a legislature cease being local
representatives and become members of the national
parliament (Burke, in Turner 2003). As societal diversity
has come to be acknowledged, the concepts of representation
have also evolved, with Pitkin arguing that
representation is variously formal, descriptive, symbolic
and substantive (1967).
There is no shortage of research on the nature of
representation that is achieved by elected officials in
lower chambers. While there is less systematic research
on representation in upper chambers, it is possible to
generalize that in countries where members of the
upper chamber are elected directly by the population or
indirectly by the provincial legislatures, they generally
provide substantive representation for the citizenry, and
any minority representatives chosen in this manner furnish
the strongest symbolic representation.7 Where senators
are appointed by the provincial governments,
they are likely to provide direct representation for the
provincial government. And in instances of appoint-
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Table 1
Countries with Federal Systems
Country System Constitution Legislature Levels Administrative units
Argentina republic 18531 bicameral 2 23 provinces, 1 district
Australia parliamentary 1901 bicameral 2 6 states, 2 territories
Austria republic 1945 bicameral 2 9 provinces (Länder)
Belgium parliamentary 1993 bicameral 32 10 provinces, 3 regions
Bosnia and Herzegovina republic 1995 bicameral 2 2 federations,3 1 district
Brazil parliamentary 1988 bicameral 2 26 states, 1 district
Canada parliamentary 1867 bicameral 2 10 provinces, 3 territories
Comoros republic 2001 unicameral 2 3 islands
Ethiopia republic 1995 bicameral 2 9 states, 3 2 administrations
Germany republic 19494 bicameral 2 16 provinces (Länder)
India republic 19501 bicameral 2 28 states, 7 territories
Malaysia parliamentary 1963 bicameral 2 13 states, 1 territory
Mexico republic 1917 bicameral 2 31 states, 1 district
Micronesia republic 1979 unicameral 2 4 states
Nigeria republic 1999 bicameral 2 36 states, 1 territory
Pakistan republic 20035 bicameral 2 4 states, tribal areas,3 district
Russia republic 1993 bicameral 2 89 oblasts, republics, okrugs, krays, districts
St. Kitts and Nevis parliamentary 1983 unicameral 2 14 parishes
South Africa republic 1997 bicameral 2 9 provinces
Spain parliamentary 1978 bicameral 2 17 communities, 2 districts
Switzerland republic 1874 bicameral 2 20 cantons, 6 half-cantons
United Arab Emirates federation 1971 unicameral 2 7 emirates
United States of America republic 1789 bicameral 2 51 states, 1 district
Venezuela republic 1999 unicameral 2 23 states, 1 district
Source: Based on Forum of Federations (2007); Central Intelligence Agency (2008).
1 Revised frequently beginning in the 1960s.
2 Three levels of governance: federal, regional and linguistic.
3 Ethnically based.
4 Basic Law became the constitution of united Germany in 1990.
5 Established in 1973 but suspended twice due to military coups, then reinstated with amendments.
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any way. At the federal level, on the other hand, a
more effective upper chamber would increase the
number of players who have vetoes over federal legislation
and thus increase the probability of phenomena
associated with multiple vetoes: namely, policy
stability, government instability and independence of
the bureaucracy and the judiciary (Tsebelis 2002,
143; Tsebelis and Money 1997).
Where the provincial governance function may be
negatively affected, albeit indirectly, is by a shift in the
relative leverage of various political actors. For example,
a popularly elected senator may obtain greater
public attention and support for her policy opinion
than a provincial cabinet minister from the same
region who is elected in a much smaller constituency.
These changes in politician-voter dynamics are tied as
much to the individual actors as they are to method of
selection, so it is impossible to predict with any accuracy
how an elected Senate will translate into political
influence. Nevertheless, it is reasonable to assume that
members of a small chamber with only a few senators
elected province-wide would be able to obtain media
and public attention for their viewpoints and that
these senators, individually and collectively, would
make claims to electoral mandates, at least in opposition
to the federal government. This has certainly been
the case in other countries with directly elected senates.
What impact this would have on provincial legislatures
and governments is much more unclear.
Possible electoral systems
While elected upper chambers are the most common
approach to bicameralism, there is no common format
by which that election occurs, and each electoral
system will result in a different translation of votes to
seats in a legislature.
Because of the plethora of permutations, political
scientists have developed a number of means of crosssystem
comparison (see, for example, Martin 1997;
Reynolds and Reilly 1997; Blais 1988; Rae 1967). Of
particular relevance are three key factors that can
each have a substantial impact on electoral outcomes:
the ballot structure, how voters are permitted or constrained
in expressing their vote choice; district magnitude,
the number of seats in each district; and the
electoral formula, the mechanism used to count votes
in order to allocate seats (Blais and Massicotte 2002).
Additional factors are the timing of elections (whether
they coincide with the lower-chamber or provincial
elections or occur at another time), the role of political
parties (control of the nomination process, parties’
1997, 45). Even where coequal constitutional powers are
given to an unelected upper chamber, public legitimacy
to use those powers is often lacking. Temperley observed
this trend a century ago when he wrote, "Power seems
to be enjoyed by the Upper Chamber in proportion as its
composition is democratized” (1910, 62). Today, however,
we know that appointed upper chambers in federations
where representation is on behalf of administrative
units have more legitimacy than those where appointment
is exclusively the purview of the federal government
or is based on the historic claims of a social class
(Mastias and Grangé 1987).
It must be stressed that bicameralism "appears to
have little effect on the relationship between the legislature
and the executive” (Tsebelis and Money 1997,
1), and that the second chamber is about legislation,
not governance. This is as true for republics, where
the president is elected separately, as it is for parliamentary
systems, where even though the government
requires the support of Parliament, this support is
always delivered through the popularly elected lower
house. Bicameralism is about legislative review.
But there is some evidence that bicameralism affects
policy formation, and this is true even for weak and
unelected bicameral chambers, where the effect is
known as "Cicero’s puzzle” (Tsebelis and Money 1992,
1997). Although bicameralism does not affect the
executive’s choices in forming and administering a
government, there appears to be a relationship in parliamentary
systems between the length of a government’s
time in office and whether it has a majority in
the second chamber (Druckman and Thies 2002).
The issue of the impact of upper chambers on
intergovernmental relations within a federation is a
point of much speculation, though with little clear
evidence. For example, a proposed shift of the
Canadian Senate from being appointed federally to
being appointed by the provincial governments was
characterized by the federal government as a move to
decentralize but was seen by at least one province as
likely to centralize the federation instead (Smith
2003). Not surprisingly, an elected Senate has also
been characterized as having both centralizing and
decentralizing tendencies (Smiley 1985).
This debate must return to the simple fact that
bicameralism is about legislation and not governance,
and the areas of legislative jurisdiction are determined
by constitutions and courts. So changes in
methods of selection that would make an upper
chamber more effective are unlikely to affect provincial
legislation or provincial legislative competence in
round voting or the use of the alternative-vote system. In
the former case, the usual practice is to hold two rounds
of voting, with the second round (a runoff) restricted to
the top two candidates. With the alternative vote, the voters
rank candidates in order of preference on a single ballot.
If no candidate gets a majority of first preferences, the
candidates who received the fewest votes are eliminated
one by one, and their votes are transferred according to
voters’ second preferences (and so on) until one candidate
achieves a majority. It is claimed that runoff elections
consolidate support behind the successful candidate and
encourage coalition building and cross-party alliances in
the final stages of the campaign, whereas the alternative
vote simply translates a small lead into a more decisive
majority of seats by discriminating against those at the
bottom of the poll (Norris 1997, 302).
Multi-member majority
Several representatives are elected by majority in each
constitutency. Presumably a single ballot using the
alternative vote could be fashioned, though as yet no
country has done so. Instead, two-round voting is the
norm. Either voters choose from party lists, so that the
two parties that received the most votes in the first
round compete in the second (with the winning list
gaining every seat in the constituency); or they elect
individual candidates with an absolute majority in the
first round, and further candidates who get a plurality
in the second, if a second vote is needed. Obviously the
use of party lists gives the party great influence over
the candidates, though it will also often lead to diverse
representation as parties try to balance their lists along
gender, racial-ethnic, linguistic and regional lines.
Proportional representation
Under proportional representation (PR), voters choose
between lists of candidates offered by political parties
and the seats are distributed among the parties according
to their proportion of the vote. So if a party receives onethird
of the vote, it receives one-third of the seats in the
chamber. Minimum thresholds are often used to limit the
number of smaller parties represented in a legislature,
and several alternative formulas can be used to calculate
proportionality. When a "closed” list is used, votes are
cast for a party, and the candidates who take the seats on
behalf of that party are the ones with the highest priority
as determined by the party. With an "open” list, voters
can express a preference for a particular candidate within
the party list. Proportional representation is usually credited
with ensuring that a larger number of smaller parties
are represented in a legislature, a feature that is usually
role in campaigning and their profile on the ballot)
and the length of term (as compared with the term for
members of the lower chamber). These are important
considerations for an upper chamber because they can
affect both representation and review.
To simplify our discussion of electoral systems, we
present six general electoral systems that have been
considered at different times for the Canadian Senate.10
Single-member plurality
In these elections, candidates compete in single-member
constituencies, and the representative elected is
the person who receives the most votes (not necessarily
a majority of the votes cast, simply more than the
next candidate). Plurality is a "winner-take-all” system
(also known as "first-past-the-post”), so in a race
between three equally popular candidates, for example,
a candidate can win with as little as 33.4 percent
of the popular vote. Because of the uneven distribution
of votes across ridings, this will occasionally
result in a party winning a majority of seats in a legislature
with less than a majority of votes, or perhaps
even a smaller percentage of votes than another party.
However, the exaggerated parliamentary majorities, it
is argued with respect to lower chambers in a parliamentary
system, are a worthwhile feature because the
system delivers clear mandates to govern and sufficient
majorities to implement a legislative program.
There is no ignoring the fact that this system is
designed to disenfranchise smaller parties, and the
parties that are most adversely affected are the ones
whose support is not concentrated regionally.
Multi-member plurality
Elections under this system use larger constituencies
and elect several representatives for each constituency
by plurality, the same principle as in single-member
plurality. If a constituency is to be represented by
three members, then the candidates who came first,
second and third are elected. Large multi-member
constituencies operating under plurality will tend to
elect most or all of their representatives from the
same political party. Since these are larger ridings
with multiple representatives, the connection between
the voter and the representatives, it is argued, is
weaker and the influence of the party greater
(Madison [1787], in Rossiter 1961; Silva 1964).
Single-member majority
Here the winner must receive a majority — 50 percent
plus one vote. This usually requires either multiple-
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unique variations. In Bolivia, for example, multimember
plurality is used but one seat is given to the
second-place party to ensure diversity of representation
in the chamber.
The only obvious patterns that seem to emerge are
that the majority of second chambers hold their elections
at the same time as the lower-chamber elections,
and that most have the same political parties
responsible for the nomination process in both chambers.
Additionally, most of the countries that hold
their elections concurrently with the lower-chamber
vote stagger the terms for their senators, so that only
part of the chamber is elected at any one time.
The Australian experience
The comparative analysis does not point to any emergent
trends that would commend one system over
another, but the lessons from other countries can be
informative on how dual elected chambers might
operate in Canada. From this perspective, Australia is
perhaps the most useful example, as it shares several
features that are relevant to Canada. It uses the
Westminster model of responsible parliamentary government
and it is also a federation. Of course, the
important difference is that it uses the proportional
representation system of single transferable voting
for its upper chamber.
There are also many differences that make
Australia distinct from Canada, including the fact
that it is less culturally and regionally divided, has a
lower chamber elected by the alternative vote, has
state legislatures that are also bicameral (with one
exception) and has a history of state political parties
being central to the nomination process for candidates
to the Senate. So Smiley’s admonition that caution
must be exercised when drawing lessons from
this island continent should be kept in mind (1985).
Australia has six states, which are represented in the
Senate by 12 senators each, and two territories, which
are represented by 2 senators each, for a total of 76
members (the numbers are based on a constitutional
requirement that the Senate be half the size of the lower
chamber, the House of Representatives). The senators for
the territories stand for election every three years along
with half of the senators from the states, and this election
is held at the same time as election for all members
of the lower chamber. (The leader of the party that wins
the largest number of seats in the lower chamber is entitled
to form a government, as in Canada.)
When Australia was created as a federation, in
1901, the Senate was elected using the plurality sysdescribed
in democratic terms as ensuring that "every
vote counts.” Multi-member constituencies are a necessary
condition in a proportional representation system.
While closed lists provide political parties greater control
over their candidates than open votes, they usually
result in greater diversity in representation. For example,
it is well chronicled that the list system of PR facilitates
female candidates’ entry into politics, because
parties strive for gender balance on their lists (Rule
1992; Rule and Norris 1992; Welch and Studlar 1990).
Single transferable voting
This is a variation on proportional representation
which can best be described as "personal PR.” In this
system voters are not confined to a party’s list but
rather rank the candidates and candidates must receive
votes beyond a specific quota to win. Voters’ ballots
are reallocated to their next preferences when there are
excess votes for an elected candidate or when their
first candidate is eliminated. Choices from among candidates
of one particular party are possible, but the
ballot design can make partisan predispositions less
central. This system is also claimed to induce candidates
to develop personal positions on the issues,
though it may equally result in candidates from the
same party regularly competing against each other,
undermining party cohesion in the process (Katz 1980).
Clearly the choice of a system can lead to dramatic
differences in electoral outcomes. However, there is
no "best” or "better” system, since the relative merits
of any one dimension of a system are so closely tied
to competing beliefs about what should be the core
principles of a representative democracy.
The question for any polity in considering which system
to adopt therefore needs to be, What democratic
principles are most desirable? Political equality, representation
of diverse viewpoints, accountability, clear
choices in policy, governability, party system stability
and the ability for the system to handle social conflict
are all relevant and sometimes conflicting considerations.
At the simplest level, selecting an electoral system
is about choosing between efficient and effective versus
responsive and accountable government, and about how
important it is to be fair to minor parties (and the voters
who support their policies) (Norris 1997).
Finally, of course, for political parties, choosing a
system is about setting the rules of the game. Any
rule is bound to advantage some parties over others.
As table 2 shows, each of the six systems has been
adopted for directly electing an upper chamber in at
least one country, and many countries have created
ferable voting, which has resulted in an increase in the
number of parties elected and in none of these parties
(usually) obtaining a majority in the upper chamber.
To understand the dynamics of representation in the
Senate in Australia, one must also understand the dynamics
tem. Between 1918 and 1949, Australian senators were
elected by the alternative vote (see Sharman 2008).
Both systems resulted in the government winning a
majority in both the upper and lower chambers. Since
1949, the Senate has been elected using single trans-
9
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Table 2
Electoral Systems Used for Senate Elections Where the Upper Chamber Is Directly Elected
Country District magnitude Timing of elections Parties Terms (years)
Single-member plurality
Dominican Republic 30 separate constituencies Same time as lower-chamber elections Same parties 4 years
(29 provinces, 1 federal district)
Multi-member plurality
Bolivia 3 seats per department Same time as lower-chamber elections Same parties 5 years
(2 seats to majority party,
1 to next party)
Brazil 3 seats per state and federal Same time as lower-chamber elections Same parties 8 (33% and 66%
district alternating every 4 years)
Palau Based on population (multi- Same time as lower-chamber elections No parties 4 years
member and single districts)
Philippines Nationwide constituency Same time as lower-chamber elections Same parties 6 (50% every 3 years)
Poland 2-4 seats per constituency Same time as lower-chamber elections Same parties 4 years
US 2 seats per state Same time as lower-chamber elections Same parties 6 (33% every 3 years)
(majority needed in Georgia
and Louisiana)
Single-member majority
Czech Republic 81 separate constituencies Separate from lower-chamber elections Same parties 6 (33% every 2 years)
(with two-round voting)
Multi-member majority
Haiti 3 seats per department Same time as lower-chamber elections Same parties 6 (33% every 2 years)
(with two-round voting)
Switzerland 2 seats per canton Same time as lower-chamber elections Same parties 4 years
(with two-round voting)
Single transferable voting
Australia 12 senators per state and Same time as lower-chamber elections State parties 6 (50% every 3 years)
2 per territory
Proportional representation
Colombia 100 seats nationwide Same time as lower-chamber elections Same parties 4 years
(2 seats for Aboriginal people)
Paraguay 45 nationwide seats Same time as lower-chamber elections Same parties 5 years
Romania 42 constituencies with
2-12 seats each (1 senator Same time as lower-chamber elections Same parties 4 years
per 160,000 people)
Mixed-member proportionality
Mexico 3 seats per state plus federal Same time as lower-chamber elections Same parties 6 (50% every 3 years)
district (2 go to majority party
and 1 to next party, and 32
additional seats are used for
list PR)
Japan 73 from multi-member and Separate from lower-chamber elections Same parties 6 (50% every 3 years)
single-member constituencies;
and 48 seats allocated using PR
Sources: Based on Inter-parliamentary Union (n.d.); Central Intelligence Agency (2008).
Note: There are additional country variations not reflected in the classification.
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control the Senate are not universal. Uhr, for example,
argues that having a second chamber with no clear
majority is a useful check in keeping with the federal
principle of divided government and gives voters the
opportunity to split the ticket, placing different parties
in control of different political institutions. Just as governments
claim that elections provide them with a mandate
to govern, the smaller parties in the Senate equally
claim a mandate to keep the government accountable
or, as the Australian Democrats’ Senate election slogan
put it, to "keep the bastards honest” (Uhr 1999, 98).
The Harper Government’s Senate
Reform Proposals
The Harper government’s initiatives were just the
latest in a long line of proposals to "reform” the
Canadian Senate. Dozens of Royal Commissions,
parliamentary hearings and governmental and nongovernmental
bodies have proposed wholesale
changes, with most since the 1990s recommending
direct election (see Stilborn 2003 for a review of the
key proposals, including their suggestions for possible
electoral mechanisms). Among these, the Canada West
Foundation’s is particularly relevant, as it directly
informs the Harper government’s own proposals (see
McCormick, Manning and Gibson 1981).
There has been surprisingly little academic research
on the Canadian Senate, giving this chamber the dubious
distinction of being "both the most written about and the
of elections to the lower house. Two centre-right parties,
the Liberal Party and the National Party, have a permanent
coalition and have proven effective in working
together to use the alternative vote system of the House
of Representatives to win majorities. The coalition partners
make strategic moves to ensure they win the most
seats, including making recommendations to supporters
on how to mark their ballots. This strategic approach,
combined with the alternative vote system, has resulted in
smaller parties finding themselves largely excluded from
winning seats in the lower chamber. They have responded
by focusing their resources on the upper chamber.
As table 3 illustrates, the distribution of seats since
the election of 197411 has resulted in clear majorities in
the House of Representatives for either the
Liberal/National coalition or the Labour Party. Yet in the
Senate chamber, with the exception of three parliaments,
the governing party has not had a majority. Additionally,
the number of minority parties represented in the Senate
has increased, particularly since the mid-1980s.12
Not surprisingly, the literature on bicameralism in
Australia tends to follow the trend noted by Tsebelis
and Money for federal countries (1997), in that it
focuses on conflict and power distribution between
the two chambers. Added to this is a normative
thread about responsible parliamentary government
under the Westminster model. The conclusion is
invariably that the country is under constant threat
of political gridlock, endless bargaining and tradeoffs
(see, for example, Jackson 1995).
These concerns over the governing party’s failure to
Table 3
Distribution of Seats between Government and Opposition Parties in the Australian Parliament, 1974-2007
Government House of Representatives Senate
Total Total
seats seats Coali-
Election Party (N) Labour % Liberal % National % Other (N) Labour % tion % Other
1974 Labour 127 66 52 40 31 21 17 0 60 29 48 29 48 2
1975 Liberal 127 36 28 68 54 23 18 0 64 27 42 35 55 2
1977 " 124 38 31 67 54 19 15 0 64 26 41 35 55 3
1980 " 125 51 41 54 43 20 16 0 64 27 42 31 48 6
1983 Labour 125 75 60 33 26 17 14 0 64 30 47 28 44 6
1984 " 148 82 55 45 30 21 14 0 76 34 45 33 43 9
1987 " 148 86 58 43 29 19 13 0 76 32 42 34 45 10
1990 " 148 78 53 55 37 14 9 1 76 32 42 34 45 10
1993 " 147 80 54 49 33 16 11 2 76 30 39 36 47 10
1996 Liberal 148 49 33 75 51 19 13 5 76 28 37 37 49 11
1998 " 148 67 45 64 43 16 11 1 76 29 38 35 46 12
2001 " 150 65 43 69 46 13 9 3 76 29 38 35 46 12
2004 " 150 60 40 75 50 12 8 3 76 28 37 39 51 9
2007 Labour 150 83 55 55 37 10 7 2 76 32 42 37 49 7
Sources: Based on Parliament of Australia (2007); Inter-parliamentary Union (n.d.).
Note: For illustrative purposes, National members are shown separate from the Liberal and Country Liberal members in the House of Representatives, though grouped
together as coalition members in the Senate portion of this table.
or public expenditures (though it may decrease them).
And the Senate may only delay for 180 days constitutional
amendments that have received the concurrence
of the provinces and of the House of Commons.
The constitutional amending formula is central to the
debate over reform of the Senate; the formulas are set
forth in part V (sections 38-49) of the Constitution Act,
1982. The "general amending formula,” requiring the
agreement of seven provinces representing 50 percent
of the population, governs, among other things, the
"powers of the Senate and the method of selecting
Senators” and "the number of members by which a
province is entitled to be represented in the Senate and
the residence qualifications of Senators” (section 42).
In 1996, following a referendum in Quebec on independence,
Parliament adopted An Act Respecting
Constitutional Amendments, which prevents the federal
government from placing any constitutional amendment
under the 7/50 formula before Parliament unless the proposed
amendment has been approved by the provincial
legislatures representing the majority of the population in
each of five regions of Canada.16 This gives British
Columbia, Ontario and Quebec complete vetoes over constitutional
changes in this class (and makes the legislatures
of Nova Scotia and Alberta central to passage in
their two regions). And two provinces (Alberta and
British Columbia) have adopted legislation requiring that
a referendum be held before legislative concurrence is
given to any proposed constitutional amendment.
least studied of Canadian political institutions” (Franks
1999, 121). Similar to the scholarship in other countries
that have weak or unelected senates, research has been
almost singularly focused on the roles and functions that
the Senate actually performs (MacKay 1963; Kunz 1965;
Forsey 1982; Joyal 2003). Attention has been given to
the inherent problems due to its unelected and affluent
membership (Campbell 1978), or to revisiting what the
country’s founders intended (Ajzenstat 2003), with a critical
eye toward modest improvements that maintain the
body’s historic strengths (Forsey 1984; Mallory 1984;
Franks 1987; Smith 2003).
The current Canadian Senate
The Canadian Senate has remained virtually
unchanged from the configuration agreed to by the
Fathers of Confederation in 1867. It is an appointed
chamber with senators chosen to represent one of the
provinces or territories of Canada, as illustrated in
table 4. The number of seats is apportioned not
equally by province but rather on the principle that
four distinct geographic regions of Canada should be
equally represented: 24 seats each are allocated to the
Maritimes, Quebec, Ontario and the West.13
Newfoundland and Labrador and the three territories
are not counted in these four regions.14
Senators are summoned by the governor general,
though appointments are made solely upon the decision
of the prime minister. The appointment is until
age 75.15 The powers of the current Senate are essentially
identical to those of the House of Commons,
although because it is a non-elected body, these powers
are rarely exercised to their full potential.
The qualifications for appointment, which were
clearly a more significant issue at the time of
Confederation, are that a person be at least 30 years of
age, be a Canadian citizen and have at least $4,000 of
property in the province for which he or she is being
appointed (the person also must have a net worth of
$4,000). In the case of Quebec, the property must be in
a specific division within the province to ensure the
representation of the various sectional interests — linguistic,
cultural and religious — within this province. In
practice, prime ministers also appoint senators to represent
minority community interests in other provinces.
The only constitutional limits on the Senate’s powers
are that money bills must originate in the
Commons and must come from the cabinet, which
controls the "royal recommendation” necessary for
the introduction of such legislation. The Senate may
not amend these money bills to increase taxes, duties
11
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Table 4
Provincial and Territorial Distribution of Seats and
Vacancies in the Senate, Canada, September 2008
and Projected 2014
Number Vacancies
Province/ of
territory Senators Current 2009 2014
Newfoundland
and Labrador 6 1 2 4
Nova Scotia 10 3 4 5
Prince Edward
Island 4 1 1 2
New Brunswick 10 1 3 7
Quebec 24 4 7 13
Ontario 24 2 5 13
Manitoba 6 0 1 2
Saskatchewan 6 0 1 2
Alberta 6 0 0 3
British Columbia 6 3 3 4
Northwest
Territories 1 0 0 0
Nunavut Territory 1 0 1 1
Yukon Territory 1 1 1 1
Total 105 16 29 57
Source: Based on Senate of Canada (2008a, 2008b).
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September 2008 (table 4), there were 16 vacancies in
the Senate; the total would go up to 29 by the end of
2009 and to 57 just five years later. Of course, any
deaths or resignations could increase the total.19 It is
worth noting that as part of the government’s democratic
reform agenda, Parliament has already adopted
legislation to fix the date for House of Commons elections.
Had an election not been triggered early by
Stephen Harper’s request on September 7, 2008, the
Governor General dissolve Parliament, the next general
election would have been held on October 19, 2009.
All future elections were to be held on the third
Monday in October four calendar years after this one
(although elections could be triggered earlier by a vote
of nonconfidence by the House of Commons or by the
dissolution of Parliament by the governor general). If
both bills concerning the Senate had been adopted by
Parliament before an election call in 2009, Canadians
would have been voting in the 2009 general election
to elect one-quarter of the Senate. Based on the dates
contained in these pieces of legislation, it would
appear that the intention is to make Senate elections
coincide with Commons elections with the entire
House of Commons standing for election every four
years and the Senate elections staggered, so half the
seats are up for election in each general election. This
is the approach to bicameralism that is employed in a
number of countries, and it is the principle underlying
the US Congress, though only one-third of their
Senate is elected at every election for the House of
Representatives. If these pieces of legislation are
adopted during this coming Parliament, it is still possible
that as much as half of the Canadian Senate
could be elected following the next federal election.
The Senate Appointment Consultations Act was the
legislation that would have allowed the federal government
to conduct an election in any province or
territory to canvass Canadians on who should fill
Senate vacancies. The "consultative” elections would
have been called by the federal government at the discretion
of cabinet and, in support of the government’s
constitutionality claim, there was a great deal of flexibility
as to when elections would be called.20 The government
would not have been obliged to fill every
vacancy at the same time or within a set period of
time, and it could even have held elections for positions
that were not yet vacant. Elections could have
been held simultaneously with either a federal general
election or a provincial general election, though six
months notice would be required to hold a Senate
consultative election during a provincial election.21
The most onerous amending formula is one that
requires passage by all of the provincial legislatures, and
this level of unanimity would likely be required to abolish
the Senate (though this is not expressly stated). The least
onerous amending formula requires only passage through
Parliament (in this instance the Senate must agree and
cannot have its vote overridden in 180 days) and includes
matters "in relation to the executive government of
Canada or the Senate and the House of Commons” (section
44). The fourth amending formula pertains to matters
that affect only one or more provinces, but not all; these
amendments would require only passage through
Parliament (which includes the Senate) and the provincial
legislature(s) in question. But the only matter concerning
the Senate that could be construed as not affecting all
provinces would be the requirement that Quebec senators’
property be held in a specific electoral division.
Another limitation on reform is the Supreme Court of
Canada’s 1980 decision in a reference over the federal
government’s desire to alter the upper house unilaterally,
which is likely to have relevance.17 In this ruling the high
court denied Parliament the right to make changes that
might alter the "fundamental character” of the Senate; it
defined the Senate as a "chamber of sober second
thought,” which is a central consideration with respect to
the length of senators’ terms; and it said the Senate’s
representational structure was reflective of the Canadian
federation. It was the Court’s opinion that for the government
to alter either of these principles, the provinces
would need to agree.
The Harper government’s proposal
As already noted, the Harper government’s approach
was unique in both proposing a mechanism for election
and trying to make these changes without
involving the provinces in a constitutional amendment.
We turn now to the two bills that were before
Parliament at the time of the 2008 election call.
The Senate Tenure Bill was itself a constitutional
amendment that would have limited Senate tenure to
an eight-year, nonrenewable term. The argument that
Parliament has the authority to enact this constitutional
amendment on its own, without the provinces,
was based on the government’s claim that an eightyear
term is sufficient to provide the experience and
institutional memory necessary for this chamber to
continue to exercise its review function as a chamber
of sober second thought and to ensure regional,
provincial and sectional representation.18
This bill was grandfathered so vacancies would
arise as current senators reached age 75. As of
A number of other administrative measures in the
legislation mirrored clauses in the Canada Elections Act
(the law that governs House of Commons elections),
such as financial auditing, retention of documents,
forms and notices, qualifications to vote, candidate
access to buildings to campaign and place posters, and
distribution of surveys.
The electoral system to be used for Senate elections
under the Senate Appointment Consultations Act was
to have been single transferable voting (STV).23 In STV,
as described above, voters are asked to rank candidates
in their order of preference by numbering the candidates
on the ballot. The normal practice with ballots is
to list the names in alphabetical order, with party affiliation
shown for those candidates who have won a registered
party’s nomination. To avoid the possibility that
a person might gain an advantage simply by having
their name listed first, the first name on the ballot is
varied from one voting area to another. The ballots are
then counted in a way that aims to ensure, first, that
the candidates with the highest combined preferences
are elected and, second, that there is diversity in representation.
Candidates who obtain a certain quota of the
votes (based on the votes cast and the number of positions
being contested) are elected.
Table 5 uses data from the 2006 federal general election
to illustrate the sort of spending and the number of
votes that might be involved in a Senate election in each
of the provinces. The spending figures are simply the
provinces-wide candidate spending limits set for House
of Commons elections (notwithstanding the differences in
Elections would have been province-wide. The winners
of these elections would have had their names
submitted by the prime minister to the governor general
for summons to the Senate to fill vacancies.
The constitutional requirements would still have
applied, so that in addition to being 30 years of age
and a Canadian citizen, a candidate would have had
to acquire at least $4,000 of property in the province
(or, in the case of Quebec, in one of the 24 divisions
within the province) where there was a vacancy, clear
of debt, before he or she could be appointed.
Candidates could have been endorsed by political
parties but could not have received funds from parties
by which to mount their campaigns; however, political
parties would have been allowed to share office
accommodation and provide professional services and
lists of members and contributors to a nominee. Senate
candidates would have been restricted to raising
money through indexed $1,000 donations from individuals
and would have been allowed to give no more
than twice that amount to their own campaigns. Thirdparty
advertising, including any political party spending,
would have been capped at $3,000 per nominee to
a maximum per province based on that province’s portion
of a Canada-wide limit of $150,000. These were
the same donation limits used for elections to the
House of Commons, but in Commons elections these
restrictions are tied to the public funding of candidates’
campaigns.22 Another contrast with Commons
elections was that there would have been no spending
limits for Senate candidates themselves.
13
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Table 5
Hypothetical Spending Limits and Quota of Votes Needed by Each Candidate to Win a Senate Seat under
Single Transferable Voting
Province-wide Potential
candidate spending Current vacant Quota of votes seats for Quota of votes
Province/territory limits ($ thousands) seats (N) needed (thousands)1 election (N) needed (thousands)1
Newfoundland and Labrador 557 2 76 3 57
Nova Scotia 842 2 159 5 80
Prince Edward Island 251 1 39 2 26
New Brunswick 746 2 136 5 68
Quebec 5,931 2 1,230 12 294
Ontario 8,576 2 1,886 12 435
Manitoba 1,084 2 172 3 129
Saskatchewan 1,082 2 154 3 116
Alberta 2,169 2 478 3 358
British Columbia 3,028 2 609 3 457
Northwest Territories 76 n/a n/a 1 7
Nunavut Territory 79 n/a n/a 1 8
Yukon Territory 74 n/a n/a 1 5
Source: Based on Elections Canada (2006a, 2006b).
Note: Figures in this table are based on the actual candidate spending limits, electors on the list and votes cast for the 2006 House of Commons election. Amounts are
rounded to nearest thousand.
1 This quota is set by the formula A / (B + 1) + 1, where A is the total number of valid votes cast and B is the number of Senate seats being contested.
n/a not applicable
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14
table 4), only one or two Senate spots would be open for
election, which means that the system would function
more like the alternative vote, used in single-member
constituencies. In the two largest provinces, there would
be 12 seats available if half were elected each time,
which would challenge the capacity of voters to identify
with a sufficient number of individual candidates. (A
solution in these two provinces would be to divide them
specifically for the purposes of the Senate into three or
four separate electoral divisions; see Hicks 2007.)
The arguments in favour of the STV system are
made by McCormick, Manning and Gibson (1981),
who suggest that the central criterion governing
choices among possible electoral systems should be
the extent to which a system contributes to the role
of senators as members of a chamber devoted to
regional representation. From that perspective, systems
emphasizing the role of political candidates as
party representatives should be avoided at all cost.
Further, the single transferable vote is advocated on
the grounds that it permits voters to choose their representatives
on the basis of individual characteristics.
This idea of regional voices is the reason that some
Senate reform models (including Triple-E) recommend
that Senate elections be held only concurrently
with provincial elections. The Harper government
stated that it would hold most elections in connection
with federal general elections, though the Bill gave
the prime minister the flexibility of both options
(Legislative Committee on Bill C-20 2008a, 1535).
The experience of federal elections in Canada suggests
that regionalism would manifest itself in an
elected Senate regardless of the timing of elections,
particularly under the STV system. In the House of
Commons, the Bloc Québécois and the Reform Party,
and before them Social Credit, have all been able to
sustain themselves as strong regional parties under
the single-member plurality system. STV is even more
responsive to these regional forms of political action.
The primary impact of election timing might be on
the issues that have saliency: holding Senate elections
concurrently with provincial elections might
mean senators would be elected at a time when voters
are focused on provincial election issues.
In the case of Quebec and Ontario, where 12
Senate seats would probably be contested at once,
partisan loyalties might become more central to decision-
making, as it would be harder for voters to distinguish
among the many candidates. However, the
Harper government departed from the Australian
approach of offering voters a ballot choice among
rules for Senate and Commons elections outlined
above). According to the government, the decision to
set no spending limits for Senate candidates was in
recognition of the high costs of running province-wide
elections and of the $1,000 limit for private donations
(Legislative Committee on Bill C-20 2008a, 1610).
However, unlike candidates for the House of Commons,
Senate candidates could have raised money in advance
of the election being called.
As noted, a quota based on the number of ballots cast
and the number of seats available determines the number
of votes a candidate must receive in order to be elected
under STV. As is evident from table 5, the number of
votes needed would be lower when more Senate seats are
being contested in a province at one time. For example,
to fill the two Senate vacancies that currently exist in
Ontario, the successful candidates would each need to
receive over 1.8 million votes, and each would be
allowed to spend in the neighbourhood of $8 million to
campaign across this large province. However, if there
were 12 positions being contested in Ontario, each candidate
would need only 435,000 votes to win, and presumably
the necessary expenditure would be less.
(Campaign spending, however, would be entirely
dependent on the scale of campaign a candidate wished
to mount, because the size of the province does not
change according to the number of seats being contested.)
The large amount of money that could be involved
in Senate elections is a practical consideration that has
not been widely discussed.
Practical implications
The question of numbers is central to understanding
how this electoral system would work in Canada. The
number of Senate seats constitutionally guaranteed
ranges from the high of Ontario’s and Quebec’s 24 seats
to the low of PEI’s 4 and the territories’ 1 each. Most
provinces have 6 (the 4 western provinces and
Newfoundland and Labrador) or 10 (New Brunswick
and Nova Scotia). Under the Senate Appointment
Consultations Act, the assumption was that roughly
half the Senate seats would be up for election every
four years. Therefore, STV could be expected to operate
differently in different provinces.
To get a relatively proportional result, the ideal number
of seats that should be contested in a single election
using STV is five, according to Taagepera and Shugart
(1989, 23). Most provinces would be electing three to
five senators at a time, which would ensure some degree
of proportionality. However, in the small provinces and
the territories and in the first few Senate elections (see
made, the new section is more restricted, coming as it
does in the context of a comprehensive set of amending
formulas and after the Supreme Court’s 1980 decision
in Re: Upper House.25 It is his position that a
change to the tenure of senators therefore requires the
support of two-thirds of the provinces (Desserud 2008).
Heard makes a similar case with respect to the Senate
Appointment Consultations Act, accusing the government
of trying to do indirectly what it could not do directly. He
is unconvinced by the flexibility accorded the prime minister
to ignore the outcome of consultative elections, noting
that a referendum on Quebec independence is equally consultative
and non-binding, and yet even the Supreme
Court has acknowledged that it is now of such weight as to
be an obligation on governments stemming from the democratic
principle of Canada’s Constitution (Heard 2008).
Of course, there is no democratic principle that underlies
the Canadian Senate as it now stands — in fact, quite
the opposite. Even in advance of the Confederation
meetings, the delegates from Canada had agreed to a
compromise Parliament hinged on the second chamber:
they had experience with an elected second chamber and
specifically opted for an unelected body so as to meet
French-Canadian representational demands while at the
same time ensuring that the House of Commons and the
government would not be unduly restrained when it
came to routine legislation (Moore 1997).
It is well established in both the comparative and the
domestic literature that second chambers that are
unelected do not have the legitimacy to exercise a legislative
veto in the same way that elected chambers do.
The very act of election would have a transformative
effect on the chamber’s legitimacy and thus its powers.
While the introduction of one or two elected senators
might not alter the institution fundamentally or irreversibly,
if the proposed reforms had passed, there
would have been a critical mass of elected senators that
would have transformed this chamber. As table 4 shows,
there are currently 16 vacancies; by next year onequarter
of the Senate seats could have been up for election
and by 2014 over half. It is reasonable to expect
that at some point there would have been enough elected
senators to encourage the Senate to routinely oppose
the government and the House of Commons; to create a
constitutional convention that all future appointments
to the Senate have to be made by election; and to put
pressure on the remaining appointed senators to vacate
their seats in favour of directly elected representatives.26
Quebec poses an additional constitutional challenge.
The property qualifications for Quebec senators were
designed to ensure that particular sectional interests
political parties, rather than ranking candidates
directly. The proposed Canadian system would have
reduced, though not eliminated, the use of party affiliation
as a shortcut.
The other departures from Australia’s STV system
for Senate elections were the financial restrictions
and the limits on party involvement in the campaigns
of party candidates. The cost of a Senate campaign in
Canada would run to hundreds of thousands and
even millions of dollars (see table 5), yet because of
the $1,000 donation limit, only those who have some
capacity or machinery to raise a large number of
donations could run. This suggests that the successful
candidates under STV would be those with wide personal
appeal or an appeal to a particular, albeit sizeable,
segment of the province’s population.
Certainly, a Senate elected under the system advocated
by the Harper government would be a chamber
that is diverse in membership in terms of political
parties represented. It would be very difficult for any
one party to have a majority in this second chamber.
Constitutional implications
As the Supreme Court has said, "The Constitution is
more than a written text. It embraces the entire global
system of rules and principles which govern the exercise
of constitutional authority…including the principles
of federalism, democracy, constitutionalism and
the rule of law, and respect for minorities.”24 So, not
surprisingly, the House of Commons and Senate committees
that were asked to examine the two Senate
reform bills during the last Parliament spent time on
the question of constitutionality — or, more accurately,
on the question of which of the four amending formulas
outlined above, if any, apply to the bills.
As noted, the government’s position was that the
Senate Tenure Bill fell under section 44 of the
Constitution Act, 1982, and that only the approval of
Parliament was necessary to make this constitutional
change; and that as the Senate Appointment
Consultations Act did not alter the method of appointment,
but only permitted consultation in advance of that
appointment, it was not a constitutional change at all.
This position is not universally supported. For
example, Desserud (2008) makes the case that it is the
general amending formula, and not section 44, that is
the default mechanism for constitutional amendments.
Although section 44 replaced section 91(1) of
the old Constitution Act, 1867, and section 91(1) was
the clause by which a previous change to tenure (in
1965, reducing appointment from life to age 75) was
15
R e s t r u c t u r i n g t h e C a n a d i a n S e n a t e t h r o u g h E l e c t i o n s , b y B r u c e M. H i c k s a n d A n d r é B l a i s
I R P P C h o i c e s , Vo l . 1 4 , n o . 1 5 , No v emb e r 2 0 0 8
16
Looked at in comparative perspective, the question
of whether structural change can be achieved through
electoral rules would point to a resounding yes.
Elected upper chambers have the legitimacy to use
their full range of constitutional powers. The more
difference there is between the electoral mechanisms
used in the upper and lower chambers, the more the
upper chamber would be able to claim to represent a
different dimension of society and therefore the more
legitimacy it would enjoy. A chamber elected by the
citizens, even through consultative elections, would
have a different representational role than the one
the Canadian Senate currently is predicated upon —
shifting representation from community and minority
interests toward political and issue interests.
The Australian experience in particular shows that
an upper chamber elected using single transferable
voting will return a number of smaller parties to the
chamber. The current Canadian Senate numbers mean
that STV would operate differently in each province;
this outcome, combined with the financial restrictions
and ballot design that are distinct from Australia’s,
means that the Canadian Senate would be likely to be
even more diverse than Australia’s. Also unique was
the plan to hold some or all elections in connection
with provincial elections, a feature that would introduce
a random element into the equation. The fact
that the Canadian House of Commons is itself a chamber
that regularly elects a number of political parties
and has not in recent years delivered a decisive
majority to a government adds a layer.
That being said, comparative examination also
shows that it is common for elected chambers to have
coequal powers, that the usual representation configuration
for federal countries is to have the upper
chamber based on the formal geographic administrative
units (though not necessarily based on an equal
distribution of seats), and that using a different system
of election can strengthen the upper chamber’s
capacity to represent different interests and perform
legislative review. Looked at from this perspective,
the specific structural changes advocated by the
Harper government were defensible in light of other
countries’ experience. But they are structural changes
and should be identified and debated as such.
Therefore it is up to Canadians to consider the
normative questions of what role they wish for their
upper chamber, and what electoral system best represents
their core values. The answers to these questions
can be found only in an open and informed
deliberation.
within the province were represented, as well as to keep
Quebec in balance with the other regions. This is a
question of minority representation. Specifically, the 24
Senate divisions for Quebec ensure that senators who
represent anglophone, Protestant and, more recently,
other minority interests within that province are present
in the Senate alongside the francophone-Catholic
majority. Bonenfant has suggested that the founders of
Canada also believed that the separate divisions for
Quebec would ensure a greater independence of francophone
senators from the government (1966). While
election through STV would not substantively alter the
independence of Quebec senators, this electoral mechanism
would eliminate the ethno-linguistic minority
dimension of this province’s representation.
The same would likely be true for New Brunswick.
While there are no property residency requirements to
ensure both French and English senators are appointed
to the Senate from this province, it has been the practice
to respect this linguistic division. STV might continue to
deliver duality among New Brunswick senators, given
each community’s size and localized nature, but this
would by no means be assured. Proportional representation
is designed to ensure diversity in political, not cultural,
representation within a legislature.
It is therefore clear that the proposed changes,
even though they were billed as modest, temporary
and limited, had constitutional consequences. They
would have fundamentally altered the second chamber
of Parliament and would have had an impact on
the principles of federalism, democracy and minority
representation. Additionally, they would have altered
the balance between the two legislative chambers. In
short, they would have resulted in structural change.
Conclusion
The current Senate and several provinces, most
notably Quebec, objected to the federal government
proceeding with its reform legislation
without first obtaining a ruling from the Supreme
Court on whether it was constitutional. Quebec even
threatened to go to the Quebec Court of Appeal on its
own. A central issue for the Supreme Court’s consideration,
if this or a similar initiative should be
attempted in the next or future parliaments, would be
in part whether these changes structurally alter the
Senate, which the Court has previously found to be a
fundamental aspect of the federal union.
Australia and Switzerland are also often described as
having senates based on equality, but in practice they
assign only half the seats to territories and half-cantons,
respectively, that they do to states and cantons.
7 Symbolic representation is the meaning or symbolic
value that a representative engenders among the group
that identifies with the representative; while substantive
representation requires the representative to take specific
actions and to advocate on behalf of the group and in its
interest (Pitkin 1967).
8 Upper chambers are almost universally smaller, with the
average size of upper chambers being 83 members and
most being no more than 50 members (Patterson and
Mughan 1999, 4).
9 To ensure differentiation in representation and thereby
strengthen the review function, many upper chambers
have specific terms of office that are both longer than
terms in the lower house and for a different time frame.
The average term for upper chambers ranges from three
to nine years, with two-thirds of all senators serving for
five years or less, and often terms are staggered so onethird
or one-half are selected at any time (Patterson and
Mughan 1999, 5).
10 In addition to these six, mixed-member proportionality
(MMP) has also been discussed in Canada at the
provincial level. In MMP, two systems, such as plurality
and proportional representation, or majority and proportional
representation, are combined within a single
legislative chamber. It would be unusual to adopt MMP
for one of the chambers in a bicameral legislature
(though it has been proposed for the House of
Commons in the past); instead, the usual approach
would be to adopt a different electoral system for each
chamber. For a detailed examination of these and other
electoral systems and voting mechanisms see Blais and
Massicotte (2002); Norris (1997); Bogdanor and Butler
(1983); and Lijphart and Grofman (1986).
11 This year was chosen as a start date because in the following
year a constitutional crisis occurred in Australia
when the Governor General dismissed the Labour government
because of its inability to get supply (approval
for its budgetary expenditures) through the Senate. The
House of Representatives is the confidence chamber, and
there are constitutional provisions for breaking deadlocks
in Australia, so such a crisis is unlikely to occur in
the future (Smiley 1985). However, Australian governments
have found their budget process increasingly subject
to the influence of the Senate with the increase in
minority parties (Uhr 1999, 95-7).
12 The STV system in Australia elects few independents. This is,
in part, because of a ballot that allows voters to select a
political party rather than deciding between candidates.
13 In addition, there is a provision (now exercised on the
advice of the prime minister) to allow the governor general
to temporarily increase the number of senators by
adding one or two senators to each region equally. This
was a provision placed in the Constitution by the British
to overcome any possible impasse between the Commons
and the Senate.
Notes
1 Institutions of governance have a permanence, which
is reinforced and protected by constitutionalism and
the rule of law. Members of an institution will change
regularly, as will the relative fortunes of political parties
or groups, but the structures themselves remain
largely stable. Structural change refers to change that
is equally stable and permanent, and that occurs in the
internal composition of the institution and in its interactive
relations with other institutions of governance.
2 For example, Prince Edward Island held a referendum on
mixed-member proportionality in 2005. British Columbia
convened the Citizens’ Assembly on Electoral Reform,
which recommended a change to STV; the recommendation
was also put to a referendum in 2005 (and a second
one is planned for 2009). Ontario held its own citizens’
assembly, which recommended a mixed-member proportionality
system. This recommendation was put to
Ontario citizens in a referendum in 2007.
3 Bicameral legislatures have two distinct assemblies
within a single legislature. One of these assemblies is
usually designated to be an elected chamber, whose
representational structure comes close to representing
the population equally. The chamber using "representation
by population” is, with one exception, always
given the label "first” or "lower” chamber (or house),
as it is seen as closest to the people. The hierarchical
designation "upper house” arose in countries where
that body was used to represent aristocratic birth. The
one exception is the Netherlands, where the name of
the popularly elected chamber is Tweede Kamer (second
chamber) and the formerly aristocratic chamber is
named Eerste Kamer (first chamber), since it came into
existence first. The terms "senate,” "upper chamber”
(or house) and "second chamber” (or house) will be
used interchangeably throughout this study.
4 Unitary systems of government have only one constitutional
level of government, but there are invariably local
governments (such as city governments) established and
assigned delegated authority to deliver certain services
by the central government. Federal systems, however,
have two formal levels of government to which the
Constitution has assigned different or shared legislative
and administrative responsibilities. Federalism, not
unlike bicameralism, was designed to produce divided
government and in the process create a series of checks
on authority, ensure a diversity of representation and
protect minority and sectional interests.
5 Tsebelis and Money qualify this broad statement by
noting that the Europa Yearbook (1994) has only two
minor exceptions to bicameral federations: the small
Federated States of Micronesia and the United Arab
Emirates (UAE) (1997, n8). Watts has reported that
only two federal countries do not use bicameralism,
though he identifies them as the UAE and Ethiopia
(1996, 84). In table 1 we report five unicameral federal
countries.
6 The United States is the primary outlier: representation
in its senate is equal by states (two senators per state).
17
R e s t r u c t u r i n g t h e C a n a d i a n S e n a t e t h r o u g h E l e c t i o n s , b y B r u c e M. H i c k s a n d A n d r é B l a i s
I R P P C h o i c e s , Vo l . 1 4 , n o . 1 5 , No v emb e r 2 0 0 8
18
22 The limit of $150,000 on third-party spending during
House of Commons elections was also tied to public
financing of elections. Stephen Harper, when he was
head of the National Citizens Coalition, had challenged
the constitutionality of earlier limits in Harper v.
Canada (Attorney General), [2004] 1 S.C.R. 827.
23 There are a number of animations on the Web that are
effective in illustrating how votes are distributed under
STV. The Citizens’ Assembly of British Columbia has
one at http://www.citizensassembly.bc.ca/flash/bcstv-
count, explaining the system recommended for
BC’s legislature (STV was not adopted by the subsequent
referendum). The state electoral office in South
Australia has a series that explains different voting
systems at http://www.seo.sa.gov.au/flash.htm
24 Reference re Secession of Quebec, [1998] 2 S.C.R. 217,
4-5.
25 Peter Hogg argues that the 1982 amending formulas
have overtaken the Re: Upper House decision and
should be treated as an explicit code governing future
constitutional amendments (Special Senate Committee
on Senate Reform 2006, 36-7). Monahan suggests that
the applicable sections around the general amending
formula constitute a codification of all matters that are
of interest to the provinces in the wake of Re: Upper
House (2002, 68).
26 Roger Gibbins has suggested that the threat of this legislation
might create the "political dynamics that will
enable us to carry the process forward” and force
provinces like Quebec and Ontario to engage the federal
government on its reform agenda — on its terms —
including opening discussion over the number of senators
each province has been assigned (Legislative
Committee on Bill C-20 2008b, 1545). Certainly the
threat of irreversible change to the Senate would
encourage provinces to negotiate (and to mount legal
challenges), but there is no reason to assume that it
would cause these two provinces to reduce the number
of senators that they are guaranteed if they do nothing.
Quebec’s minister of intergovernmental affairs has
already made it clear that his province opposes direct
election and would not agree to a smaller proportion
of senators, citing Ontario’s George Brown from the
Confederation debates, who acknowledged: "Our Lower
Canadian friends have agreed to give us representation
by population in the Lower House, on the express condition
that they shall have equality in the Upper
House. On no other condition could we have advanced
a step and, for my part, I accept this in good faith”
(Mar, Bountrogianni and Pelletier 2006, 14; also cited
in Reference re Authority of Parliament in Relation to
the Upper House; alternately, Re: Upper House, [1980] 1 S.C.R. 54). For its part, Ontario took the position in
2006 that it would want more seats, not fewer, in an
elected Senate (Mar, Bountrogianni, and Pelletier 2006,
12). For a more detailed discussion on Senate numbers,
and a possible solution, see Hicks (2007).
14 Even at the time of Confederation Newfoundland was
not expected to be included in the "Maritime division,”
and four additional seats were offered to this colony
(Moore 1997). This was increased to six when the
fourth "Western division” was created in the Senate by
the Constitution Act, 1915 (Hicks 2007). In addition to
Newfoundland’s six, the Yukon, Nunavut and
Northwest Territories are each represented in the
Senate by one member.
15 At the time of Confederation appointments were for
life, but this was repealed and age 75 was set as the
mandatory retirement age in the Constitution Act,
1965.
16 As noted earlier, Senate representation is based upon
four regions of Canada: the Maritimes, Quebec, Ontario
and the West. This legislation separates British
Columbia from the Prairies as a fifth distinct region for
the purposes of constitutional amendment. It is noteworthy
that the Government of Canada had treated
Canada as five distinct regions administratively for
program delivery, regional directorates and ministerial
office organization since the 1980s (Hicks 1990).
17 Reference re Authority of Parliament in Relation to the
Upper House; alternately, Re: Upper House, [1980] 1
S.C.R. 54.
18 It was the opinion of the Standing Senate Committee
on Legal and Constitutional Affairs (2007) that an 8-
year term was insufficient to meet this constitutional
test; it recommended a 15-year term and that the Bill
be referred to the Supreme Court of Canada for a ruling
on its constitutionality. The Bill had also allowed
for renewable terms, but in response to the committee’s
suggestion that this might undermine the independence
of the Senate if it remained an appointed, as
opposed to an elected, body (as senators might wish to
curry favour with the prime minister in order to get
reappointed), the government made the terms nonrenewable
in Bill C-19.
19 The Prime Minister appointed a senator after the 2006
election, in spite of his commitment to leave all vacancies
unfilled until there were elections, so as to satisfy
the constitutional principle that cabinet ministers must
be members of one of the two chambers of Parliament.
Following the recent election, he ruminated publicly
about filling vacancies with Conservatives if the
Senate does not pass this reform legislation when the
new Parliament convenes (Mayeda 2008).
20 This goes to the claim that the Bill was not in fact an
election law but merely a mechanism by which the
prime minister could, if he or she wished, seek the
opinion of residents in a province before appointing
someone to the Senate. See the evidence of Dan
McDougall, Director of Operations (Democratic
Reform) of the Privy Council Office (Legislative
Committee on Bill C-20 2008a).
21 The chief electoral officer was empowered to enter into
arrangements with the provincial election commissions
and to alter the provisions of the Act to conform to
provincial laws and regulations.
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21
cohésion tout aussi variable au sein des partis. Plus les
mécanismes servant à élire les chambres haute et basse
varieraient, plus la représentation des partis serait diverse
et plus les deux chambres pourraient prétendre représenter
différentes dimensions de la société. Cela aurait aussi
une incidence sur la légitimité et le degré d’indépendance
dont jouiraient les sénateurs.
L’expérience australienne montre qu’une Chambre
haute élue au scrutin à vote unique transférable, soit la
formule de représentation proportionnelle préconisée par
le gouvernement canadien, renverrait certains petits partis
à une seconde chambre. Mais contrairement à
l’Australie, le Canada élit déjà quatre ou cinq partis politiques
à la Chambre des communes.
L’élection du Sénat modifierait aussi la nature de la
représentation. Le Sénat actuel a été nommé en vue de
représenter des intérêts régionaux et sectoriels, la minorité
anglophone du Québec par exemple. Or, bien que la
représentation proportionnelle soit conçue pour assurer la
diversité d’une assemblée législative, elle le fait par voie de
représentation politique et non en représentant les
minorités culturelles.
Le mode de scrutin à vote unique transférable s’appliquerait
aussi différemment dans chaque province selon les
dimensions de celle-ci et le nombre de sièges en jeu. La
Constitution n’ayant pas été modifiée, le nombre de sénateurs
auquel chaque province a droit resterait le même.
C’est donc dire qu’il pourrait y avoir jusqu’à 12 sièges et
plus en jeu dans les grandes provinces comme l’Ontario, et
que les candidats qui se présentent à l’élection dans cette
province pourraient dépenser chacun jusqu’à 8,5 millions
de dollars pour atteindre un quota de suffrages aussi bas
que 435 000. On notera que ces questions pratiques n’ont
fait l’objet jusqu’à présent d’aucun véritable débat.
Si les auteurs examinent en détail les répercussions
sur le Sénat de l’élection de ses membres, ils ne formulent
aucune recommandation quant à l’adoption des
propositions. En fait, ils notent que l’expérience comparative
montre que le système préconisé par le gouvernement
est fidèle à la configuration des chambres hautes
d’autres pays. De telles modifications changeraient toutefois
la structure du Parlement et le rapport entre les
assemblées législatives haute et basse. Aussi jugent-ils
important que les Canadiens entament un dialogue sur le
rôle qu’ils souhaitent confier à leur Chambre haute et sur
le système électoral le mieux en mesure d’incarner leurs
valeurs fondamentales.
Avant sa dissolution, la 39e législature devait étudier
deux textes de loi censés donner le coup d’envoi à
une réforme du Sénat, à savoir les projets de loi
C-19 (sur la durée du mandat des sénateurs) et C-20 (sur
les consultations concernant la nomination des sénateurs).
Ces deux lois combinées auraient transformé le Sénat
actuel qui est, en vertu de la Constitution, une assemblée
non élue dont les membres peuvent siéger jusqu’à 75 ans,
en une assemblée dont les membres seraient élus pour un
mandat de huit ans. Les élections seraient tenues à l’échelle
des provinces selon une formule de représentation proportionnelle.
Avec la réélection des conservateurs, ces questions
sont restées à l’avant-plan. Le Sénat et plusieurs
provinces, notamment le Québec, se sont objectés à ce que
le gouvernement Harper mette en oeuvre ces modifications
sans que la Cour suprême ne se prononce sur la constitutionnalité
des projets de loi. Le Québec a même menacé
d’en référer à sa propre Cour d’appel. Si ces modifications
proposées sont portées devant la Cour suprême, il sera très
important pour celle-ci d’établir si elles changeraient la
structure du Parlement canadien.
Pour examiner cette question, les auteurs de cette étude,
Bruce Hicks et André Blais, se tournent vers d’autres pays
dont la Chambre haute est soit nommée, soit élue, et ils
analysent les différents systèmes électoraux envisagés pour
le Sénat canadien. La recherche montre que les sénats élus
sont mieux en mesure d’exercer l’ensemble de leurs pouvoirs.
Ce qu’expliquerait en partie la perception publique
de leur légitimité, qui serait renforcée selon les auteurs si
des élections « consultatives » étaient tenues suivant les
propositions du gouvernement. Autrement dit, le seul fait
d’élire le Sénat influerait sur sa légitimité et ses pouvoirs.
Les auteurs soutiennent que l’intégration d’un ou deux
sénateurs élus ne modifierait sans doute pas l’institution de
manière fondamentale ou irréversible, mais que celle-ci
serait éventuellement bel et bien transformée par une
masse critique de sénateurs élus. À l’heure actuelle,
16 postes de sénateurs sont à pourvoir. Dès l’an prochain,
le quart du Sénat pourrait être élu et plus de la moitié d’ici
à 2014. On peut donc raisonnablement penser qu’il y aurait
tôt ou tard un nombre suffisant de sénateurs élus pour
inciter le Sénat à s’opposer régulièrement au gouvernement
et à la Chambre des communes, de même qu’à établir une
convention constitutionnelle prévoyant que toute future
désignation au Sénat se fasse par voie de scrutin.
Sans compter que différents systèmes électoraux produiraient
entre les partis un équilibre différent et une
Résumé Restructuring the Canadian
Senate through Elections
Bruce M. Hicks and André Blais
22
Moreover, different electoral systems would result in a
different balance between the parties and different
degrees of party cohesion. The more the electoral mechanisms
used to elect the upper and the lower chambers differed,
the more diverse the representation would be in
terms of political parties and the more these bodies would
claim to represent different dimensions of society. This
would also have an impact on the legitimacy and the
degree of independence that senators enjoyed.
The Australian experience shows that an upper chamber
elected using single transferable voting, the form of
proportional representation advocated by the Canadian
government, would return a number of smaller parties to
the second chamber. Yet unlike Australia, Canada already
elects between four and five political parties to the House
of Commons.
Election also changes the nature of representation. The
current Senate was designed to represent regional and
sectional interests, such as the anglophone minority in
Quebec. While proportional representation is designed to
ensure diversity within a legislature, it does this by
ensuring political, not cultural minority, representation.
Single transferable balloting would also operate differently
in each province based on the size of the province
and the number of Senate seats being contested. Since the
Constitution would not be altered, the number of senators
to which each province is entitled would remain as currently
prescribed. This means that the number of Senate
seats being contested in a large province like Ontario
could be 12 or more, and candidates running for election
in that province could be allowed to spend as much as
$8.5 million dollars in order to win a threshold of votes as
low as 435,000, a practical consideration that has not
been widely discussed.
While Blais and Hicks examine in detail the implications
of election on the Senate, they make no recommendation
as to whether the proposals should be adopted. In
fact, they note that comparative experience shows that the
system advocated by the government is in keeping with
the configuration of upper chambers in other countries.
However, such changes would structurally alter Parliament
and change the relationship between the upper and the
lower legislative chambers. It is therefore important, the
authors maintain, that Canadians engage in a dialogue
over what role they desire for their upper chamber and
what electoral system best represents their core values.
Before it was dissolved, the 39th Parliament had two
pieces of legislation (C-19, Senate Tenure, and
C-20, Senate Appointment Consultations Act)
before it that were supposed to jump-start Senate reform.
Together, they would have transformed the existing Senate,
an appointed chamber where senators can serve until age
75, into a body where senators were chosen by proportional
representation in province-wide elections for eight-year
terms. With the re-election of the Conservatives, these
issues remain salient.
The current Senate and several provinces, notably
Quebec, have objected to the Harper government proceeding
with these changes without first obtaining a ruling
from the Supreme Court on whether or not these
pieces of legislation are constitutional. Quebec has even
threatened to go to the Quebec Court of Appeal on its
own. If these proposed changes were brought before the
Supreme Court, a central consideration of the court
would be whether or not they would structurally alter the
Canadian Parliament.
To examine this question, Bruce Hicks and André
Blais, the authors of this study, look at other countries’
experiences with appointed and elected upper chambers
and at the various electoral systems that have been discussed
as possibilities for the Canadian Senate. Evidence
shows that elected second chambers are more likely to
exercise the full range of their powers. This is based, in
part, the authors explain, on the public perception of
legitimacy, which they conclude would increase if consultative
elections were held as per the government’s
proposals. In other words, the very act of electing the
chamber would have a transformative effect on its
legitimacy and powers.
The authors argue that while the introduction of one
or two elected senators might not alter the institution
fundamentally or irreversibly, eventually there would be
a critical mass of elected senators, which would transform
the chamber. There are currently 16 vacancies. Under the
proposed system, by next year, one-quarter of the Senate
might be elected and by 2014 over half. It is reasonable
to expect that at some point there would be a sufficient
number of elected senators to encourage the Senate to
routinely oppose the government and the House of
Commons, and to establish a constitutional convention
that all future appointments to the Senate would have to
be made by election.
Summary Restructuring the Canadian
Senate through Elections
Bruce M. Hicks and André Blais