The Quest for Senate Legitimacy: Next Steps Towards an Independent Upper House

Article 2 / 9 , Vol 46 No. 1 (Spring)

The Quest for Senate Legitimacy: Next Steps Towards an Independent Upper House

With more than 80 per cent of its members sitting outside of partisan caucuses, the makeup of Canada’s Senate is unlike anything in its history. Reflecting on his experience as Facilitator of the Independent Senators Group, the author takes stock of how the Upper Chamber has transformed since changes in the appointment process were introduced in 2016. Using a landmark article written by two distinguished former senators as a jumping off point, the author reviews recent changes in the Senate and suggests other potential reforms that could help alter the negative perceptions of the institution many Canadians still hold. He stresses that popularity of the new appointment process in and of itself will not be enough to convince the public that the Senate should be valued as a pillar of Canadian democracy.

Hon. Yuen Pau Woo

Hon. Yuen Pau Woo has represented British Columbia in the Senate since 2016. He served as facilitator of the Independent Senators Group from September 2017 to January 2022.

Seven years after the introduction of a new process for the appointment of senators, the makeup of Canada’s Upper House is unlike anything it has seen in over 150 years. Before the first set of seven senators appointed as non-partisan members in the Spring of 2016, there were just 13 senators sitting as independent members, accounting for 16 per cent of the total membership. By March 2023, non-partisan senators accounted for 83 per cent of the membership. The 74 independent senators belong to one of three parliamentary groups that are not associated with a political party or sit as non-affiliated members, and have no formal links to partisan caucuses in the House of Commons.1 The only remaining group that is explicitly partisan is the Senate Conservatives, but their numbers have dwindled from 42 in March 2016 to just 14 in March 2023. The move to a more independent Senate is now entrenched.

A change in the complexion of Senate members, however, does not guarantee the success of the reforms that Justin Trudeau heralded with the expulsion of Liberal senators from his caucus in 2014. Even though the appointment of non-partisan senators is arguably the most profound set of reforms to the Upper House in its history, they are but the first step in Trudeau’s longer-term goals for the reforms “. . . to restore public trust in the Senate and move towards a less partisan and more independent Senate.” In changing the appointments process alone, the Prime Minister has put the onus for the larger challenge of raising the performance, effectiveness, and credibility of the Upper Chamber on the Senate itself. A 2021 Nanos survey found that while 76 per cent of Canadians agree with the new merit-based appointment process and only three per cent want to return to the previous model of partisan appointments, the majority of Canadians continue to have a poor opinion of the Senate as a whole.2

The contrast between resounding approval of the process for appointing senators and continued dissatisfaction with the institution poses a unique challenge for today’s Senate: How do we parlay the widespread support for appointment of independent senators into greater support for the institution?

It would be wishful thinking to assume that public favour towards the Senate will inevitably turn more positive because of the composition of its membership. On the contrary, it is likely that as the novelty of the appointment process wears off, a deep-seated antipathy towards the Upper House – rooted in longstanding questions about its legitimacy – will dominate public opinion. This will be the case even if 100 per cent of senators are non-partisan.3

A Historic Opportunity

This article discusses how the Senate, taking advantage of its newly reformed membership and building on the impetus of recent modernization efforts, can address the central issue of legitimacy without constitutional change. It is based on the idea that the 2016 reforms introduced by Prime Minister Trudeau were necessary but not sufficient to repair the damage to the Senate’s reputation brought about by the expenses scandals of previous years. Furthermore, I suggest the intent of those reforms was to set in train other changes that would improve the structure and functioning of the Upper House, and by extension, its legitimacy with the Canadian public.

The starting point for this article is A House Undivided: Making Senate Independence Work,4 the landmark paper published by the Public Policy Forum on the 2016 Senate reforms and its implications for the Upper House. Authors Michael Kirby and Hugh Segal, two distinguished former senators who belonged to the Liberal and Conservative caucuses, respectively, assert:

There is nothing in the altered appointments process introduced last January that automatically assures a positive outcome for an independent Senate. Nor is there anything that automatically condemns it to failure. Success will depend on the wisdom and flexibility of the men and women who have been called upon to serve in the Senate…. Today’s senators have an historic opportunity to lift a weakened institution from its torpor and demonstrate its value to good governance in Canada.

I offer this article in the spirit of grasping the “historic opportunity” that is before the Senate. Senators Kirby and Segal were astute, even prescient, in their observations about the reforms that had only just taken effect at the time of their writing. In this article, I offer my first-hand observations as a member of Senate leadership from 2017-2021 to assess their proposals, as well as to offer suggestions of my own. These points are summarized under five headings, broadly corresponding to the main recommendations offered by the two former senators.

Regional Representation

From its inception, the logic of the Senate has been based on equal regional representation. The bargain of equal numbers of senators from each of the regions that made Confederation possible provides a certain stability and predictability for the Upper House. But, it is also a perennial source of discontent for regions that, over 150 years of demographic change, are severely underrepresented relative to their population.5

As Kirby and Segal point out, the high bar set out in the constitution and confirmed in the 2014 Supreme Court reference6 means there is little near-term prospect for changing the regional makeup of the Senate. They call for regional “caucuses” to replace partisan groups to manage the task of assigning committee seats to senators and other routine functions.

Even though few sitting senators would disagree with the Kirby/Segal assertion that “the regional factor is fundamental to the Senate’s founding purpose,” the idea of organizing themselves along regional lines has not had much traction.

Regional identity is important for all senators, but not important enough to constitute a basis for senators from a given region to band together as a recognized parliamentary group. The Canadian Senators Group, for example, was formed in 2021 as a collective of senators who explicitly prioritize advocacy for regional interests, but who hail from different regions. Senators from the same region who belong to different groups have periodically come together on an ad hoc basis to work on issues that affect them collectively. For example, Atlantic Canadian senators successfully caucused against a provision in a 2018 bill which would have allowed a rail provider to reduce service in the region.7 On the whole, however, it is rare that senators from a given region band together across groups to oppose or lobby for a position that is not generally supported by most other members.

The underlying reason for lack of take-up on the Kirby/Segal proposal is that senators in general prioritize common interests over regional comradeship. This has been true for both partisan caucuses and non-partisan groups. Members of the Independent Senators Group (ISG), for example, did not band together solely for the purpose of sorting out committee seats and other administrative functions, but to allow for active collaboration and exchange on legislation, committee studies, and other substantive activities of the Upper House – short of voting as a bloc. The Progressive Senators Group (PSG), in turn, identifies as a group of “like-minded senators united by a common set of views and a philosophy grounded in the values of liberty and equality.” To this extent, the emerging Senate has turned the Kirby/Segal proposal on its head. Rather than organizing itself on regional lines and having “voluntary ginger groupings” which “senators can choose to fraternize with for policy and political purposes,” the preference appears to be for the opposite.

Whatever stripe of government takes power in the years ahead, it is hard to imagine in the foreseeable future a wholesale reversion of the Senate to a partisan chamber. But it is just as difficult to imagine the nature and style of non-partisan groupings that will emerge over the years. To a large extent, the answer to the latter question hinges on how senators understand the meaning of an “independent” Senate and seek to operationalize such independence.

Changes to the Rules of the Senate

Former senators Kirby and Segal highlight the paramount importance of changing the rules of the Senate to grant status to groups other than partisan caucuses. They write:

Independent senators must secure proportional rights vis-à-vis partisan senators in order to play a meaningful role in the management of the Senate agenda, rules on committee membership, the way the Senate budget is spent and so on.

The rules of the Senate were in fact amended in 2017 to recognize “parliamentary groups” other than partisan caucuses, and the principle of proportionality has been codified as the means to assign seats among the various recognized groups and caucuses. However, there are many Senate rules that continue to reflect the duopoly power of the government and the opposition. An attempt to change the rules in this direction8 failed to come to a vote during the first session of the 43rd Parliament, and a second effort during the second session came to no avail when the motion died on the order paper.

With the passing of amendments to the Parliament of Canada Act (PCA) in June 2022, the unique status of the opposition in the Senate is on much shakier ground. By recognizing parliamentary groups other than the government and the opposition and by putting all groups other than the government on the same footing,9 the imperative for further changes to the rules of the Senate to entrench equality among parliamentary groups has been strengthened.

Even so, partisan resistance is likely to continue. On this point, Kirby and Segal were prescient:

Independent Senators, no matter how some of them may feel about banding together being a contradiction to their independence (a simplistic proposition which we don’t agree) must act in unison at least once – to get the required rule changes to assure their relevance. On this single question, the Independent Senators either hang together or no meaningful change will occur.

The Kirby/Segal paper offered five specific recommendations for rule changes:

  • That the Speaker of the Senate be chosen by senators themselves by Secret Ballot

Unlike in the House of Commons, the Speaker of the Senate is appointed by the Prime Minister on advice to the Governor General. It would seem inconsistent that a government that supports independence of senators would not also support a Senate that chooses for itself the person to serve as Speaker. A Senate that is increasingly beyond the control of the PMO likely explains the reluctance of the Prime Minister to also give up this prerogative. The Speaker, after all, has the power to arbitrate on matters of disagreement among senators that are material to legislation, to recall the Senate in accordance with government priorities, and to represent the country in matters of protocol.

The inconsistency, however, is too great to sustain and it is only a matter of time before non-partisan senators agitate for the right to elect their speaker. The Senate has already allowed for an ad hoc process to elect the Speaker Pro Tempore, and the Standing Committee on Rules is slated to consider formal changes to Senate rules that will make it permanent.

A good time to implement a change to the Speaker appointment process would be following the retirement of the current incumbent, Senator George Furey, who is respected across groups and not in any way facing a challenge for his position.

However, the further loss of control by the government of the day over the rhythm of the Senate will be concerning to any administration and should be seen in the context of other reforms that I believe will more clearly delineate the role of the government in the Upper House.

  • That standing committee chairs be selected by the committee membership

The Rules of the Senate already stipulate that chairs of standing committees are elected by the members of those committees. Kirby and Segal, however, are challenging the longstanding convention of divvying up standing committee chairs among the recognized groups and caucuses as part of broader negotiations around the allocation of committee seats. While there is a formal protocol for the nomination and election of chairs at the “organization meetings” of committees, this is almost always a pro forma exercise with the chairs already identified and agreed upon by the groups and caucuses ahead of the meeting.

In a more independent Senate, it is intuitive that the chairs of committees should be selected by the members of those committees rather than by the groups which “control” those positions. I support this idea, even though it is likely to face opposition from the Conservative caucus and some of the smaller non-partisan groups, for fear that they will be underrepresented in the overall distribution of chairs. The problem is potentially more acute when one group commands a majority of seats on a committee, but it is only a problem if senators from a group vote as a bloc. A hybrid solution could see all groups represented in “steering committees,” but for the chair and vice chair positions to be elected.

  • That Question Period in the Senate, which was always limited in effectiveness by the presence in the chamber of a single government minister, be refashioned altogether

The character of Question Period (QP) in the Senate has changed with the advent of a more independent Upper House, with the practice of this tradition increasingly facing challenge. Partisans fume about the absence of meaningful answers from the Government Representative in the Senate, but they are happy for any opportunity to score political points by simply putting their questions on record. Non-partisans, on the other hand, are generally torn between reforming the often-farcical theatre of QP and doing away with it altogether.

Part of the problem is the ambiguous role of the Government Representative, who is more of a message carrier for the government than someone who in fact speaks for the government. Recognizing the demand for greater accountability in QP, the current and previous Government Representatives have made it a priority to bring Ministers of the Crown to the chamber as a matter of routine, and not just for specific legislation. This trend was interrupted by COVID-19 and it is unclear if the current leadership can come to an agreement on how to restart the process.

Even if QP is restructured to feature government ministers more prominently (or exclusively), it will continue to be hobbled by the privileging of questions from a partisan caucus that fashions itself as the only “opposition” in the Upper House. This criticism is not about determining what are acceptable and unacceptable questions but, rather, whether senators across the chamber are treated fairly in their desire to put questions to the government. This gets to the heart of an issue that the Senate has shied away from, even after six years of transition to a more independent Upper House: What is the meaning of opposition in a non-partisan Senate?

  • That the minimum age requirement of 30 for a senator be scrapped

The idea of a minimum adult age requirement for entry into one of Canada’s democratic institutions is not in keeping with modern sensibilities. However, in the absence of term limits, the prospect of an unelected senator serving for upwards of six decades (till mandatory retirement at 75) is unappealing and ripe for abuse. In the scheme of things, the minimum age requirement is a low priority for Senate reform and should, ideally, be left to a time when the overall standing of the Upper House has improved in the eyes of the public, perhaps through more fundamental reforms that affect its governance and practice.

  • Removal of the requirement that senators have a personal net worth of at least $4000

The net worth requirement is similarly archaic and exclusionary. While the dollar amount in current terms is small, the original aristocratic intent of this requirement is an unhappy reminder of why so many Canadians are not enamored with the Upper House. Fortunately, the removal of this requirement can be effected without re-opening the constitution. In the scheme of reform priorities, this one ranks higher than the age threshold, but there are more pressing issues to deal with in the immediate future.10

The Role of the Government in the Senate

Kirby and Segal have relatively little to say about the creation in 2016 of a “Government Representative in the Senate,” which replaced the historic position of “Government Leader in the Senate.” Their recommendations in this area mostly have to do with making sure the Government Representative’s Office (GRO) is adequately resourced by the Privy Council Office (PCO) and that the Government Representative plays the role of honest broker by convening weekly meetings for all senators. They are correct in identifying what are essentially the functional requirements of the position, but I believe a more fundamental critique of the role is in order.

The Senate has had two highly competent independent senators filling the role of Government Representative since 2016. Both Senator Peter Harder (2016-2019) and Senator Marc Gold (2019-present) have conducted themselves with dedication, patience, and integrity. They have, in turn, been well supported by a small team of other independent senators who were pressed into the service of the GRO.

There are, however, problems with the current arrangement. Over time these problems become more apparent and less easy to reconcile with the fundamental direction of a more independent Upper House.

The position of senators who represent the government but who, nevertheless, identify as “non-affiliated” is contradictory. The explanations given by senators in this position are strained at best.11 Most other senators are content to overlook this contradiction in the interest of expediency, but this is a problem that could over time breed cynicism about the relationship between the GRO and independent senators. In the hands of future Government Representatives who are less adroit, the ambiguity around allegiances of the GRO could result in a major reputational setback for the Senate as a whole.

The solution to this problem is to drop the artifice of a group of senators who are simultaneously representatives of the government and independent of it. There should instead be a very small number of senatorial positions that are unambiguously part of the government. This arrangement would amount to restoring the position of Government Leader in the Senate, making that person a full member of the cabinet, and providing full PCO support for the position. This same person would be the Minister Responsible for the Senate – a position that the government has already created, but which currently rests with a member of the House of Commons. The government has recently added to the confusion of roles by creating another position – Parliamentary Secretary to the Government Representative in the Senate – an MP who is a junior member of the cabinet supporting an independent senator who is not also part of that cabinet.

There are no constitutional or procedural obstacles to senators appointed as Ministers of the Crown, but there are conceptual and practical challenges that need to be addressed. The conceptual problem for the government is that restoring the position of Government Leader of the Senate and making that person the Minister Responsible for the Senate will mark a reversal in its stated commitment to appoint only non-partisan senators. The practical challenge has to do with the timing and geography of Senate vacancies, since the government can only appoint members when vacancies exist and is constrained by where those vacancies lie.

Neither problem is insurmountable. A change in the appointment process for a small number of senators would represent a small course correction in the government’s plan for Senate modernization and does not alter the fundamental direction of change in an Upper House whose membership is already more than 80 per cent non-partisan.

The government’s ability to find seats in the Upper House will depend on the vacancies available. At time of writing, with 16 Senate vacancies across nine provinces, it would likely not be a problem for the government to find persons with the right credentials from the provinces where there are vacancies. However, there may not be an abundance of vacancies at the time that the government must fill its positions.

The answer is for the government to use its reserve powers to create additional Senate seats expressly for the purpose of creating a government caucus in the Upper House. The constitution allows for the addition of four or eight senators in certain cases, representing the four divisions of Canada.12

One of the conditions of these special appointments should be that they are time limited. A senator called upon to represent the government in an otherwise independent Upper House should only serve for as long as that person occupies the position as a representative of the government. While “term limits” are unconstitutional, senators in those positions would commit to stepping down after their terms and would be held accountable by their colleagues and the broader public.13

Whether the role of the government in the Senate continues in the current form of a “representative,” or is restored to that of a “leader,” the government contingent in the Senate would remain very small relative to the total number of senators. This is as it should be for an Upper House that is intended to be independent. As such, many of the procedural functions of the government could be automated by operation of a Rule; for example, moving of motions for various stages of bills. The persuading functions of the government, on the other hand, can be carried out by the minister responsible for the bill, who should appear before the Senate as a matter of course.

Conflict Resolution

Among the most significant of the Kirby and Segal recommendations are two that deal with conflict resolution. They are:

The revival of the longstanding convention of holding conferences between the two Houses in times of deadlock.

It has been over 75 years since the Commons and Senate held a conference to deal with a deadlock over legislation, but either chamber can initiate such action. The Kirby/Segal recommendation, therefore, is less about introducing a new practice than it is about reviving an old one. According to Kirby and Segal, “the advent of an independent Senate and the prospect of more impasses regarding amendments to legislation makes this a propitious time to revisit the vehicle of conferences.”

In the six years since the 2016 reforms, the Senate has amended 34 government bills out of a total of 122 such bills sent to the Upper House for consideration.14 To this extent, Kirby and Segal were correct in anticipating the Senate would be more activist in proposing amendments. During that period, however, there was only one “impasse,” related to Bill S-3 An Act to amend the Indian Act, in which the House eventually concurred with amendments from the Senate after two rounds of messages between the respective houses – without resort to a conference.

Considering that the Senate has proposed more amendments to government bills than ever yet resisted defeating those bills even when its amendments have been rejected, senators appear to be avoiding situations of true impasse that would result in the defeat of a bill. While the use of conferences between the two houses remains an option, the resort to such would imply a high, perhaps even dangerous, level of impasse that the Senate has not allowed itself to approach. For this reason, we should not be cavalier about the use of conferences or believe it to be a magic bullet to resolve differences between the two chambers.

  • The legislated self-limitation of the Senate’s absolute veto to a six-month suspensory veto

To deal with the greater likelihood of impasse over legislation, Kirby and Segal revive the longstanding idea that the Upper House deny itself an absolute veto, and instead adopt a six-month suspensory veto. A 1980 report by the Senate Standing Committee on Legal and Constitutional Affairs proposed this change, which had occurred in the UK House of Lords in 1911.

I agree that the risk of impasse is greater under a more independent Senate, but perhaps not as great as Kirby and Segal fear. The defeat of a government bill in the pre-2016 Senate would have been a deliberate effort on the part of a determined partisan caucus with the numbers to do so. A similar outcome in the contemporary Senate would more likely be accidental. A plurality of independent senators could inadvertently defeat a bill in the belief that enough senators would protect the longstanding tradition of not overturning bills approved by the House of Commons.

An “accidental” defeat of government legislation is in some ways worse than a deliberate one, as a non-partisan Senate could not count on political support for such an action, in the way that a partisan Senate might. There may be popular support for the defeat of a government bill in the Senate, but such a defeat would likely also generate fresh resentment against the “undemocratic” character of the Upper House and amplify questions about the institution’s legitimacy.

For these reasons, I agree the Senate should abandon its power of an absolute veto. Such an act of unilateral disarmament could be the single most important corrective to the perennial criticism of Upper House as undemocratic because its members are unelected.

It is less clear, however, that a six-month suspensory veto should replace the absolute veto. Kirby and Segal make the case that:

  • In those exceptionally rare instances when the Senate feels compelled to frustrate the will of the Commons, the suspensive veto would compel all players to think again. The Senate would have time to put its case squarely before the public. If, when the six months were up, the government and the House of Commons were so convinced of public support for the bill that they insisted on re-passing it in the House of Commons, then the Senate would have done its duty and could acquiesce with a clear conscience.

While their logic is sound, it is premised on the belief that the public would make much of a distinction between a six-month delay and an absolute veto. My own hunch is that the outrage over the Senate overturning a bill approved by the House of Commons would be as great under a suspensory veto as with an absolute NO. In reality, all Senate vetoes are de facto suspensory vetoes in the sense that governments can reintroduce the same bill in a new parliament (following prorogation or after an election). This was, in effect, what happened with the Canada-US Free Trade Bill in the 1988.

Hence, when it comes to the Senate’s “nuclear option”, there is a case for removal of the absolute veto without a suspensory option. This could be done by “constitutionalizing” a rule against the Senate insisting on its amendments if the House has voted to reject them.

Removal of the absolute veto might cause the Senate to be more activist but the same can be said of the suspensory veto, as the experience of UK House of Lords has shown. From the standpoint of curbing excessive senatorial activism, there is no a priori reason to favour a suspensory veto over the loss of any veto.

The bigger challenge may well be whether the Senate’s amendments will be taken seriously by the Commons if the Upper House has lost its ability to insist on those amendments. This boils down to the perennial question of the Senate’s legitimacy and credibility with Canadians. My sense is that the greater medium-term risk for the Senate is in retaining its veto and using it – accidentally or deliberately. While not having an absolute veto may, on paper, diminish the power of the Senate, such an act of unilateral disarmament, coupled with further modernization towards institutional and individual independence, could clarify the Senate’s role in a way that in fact wins greater support from Canadians.15

The Meaning of Senate Independence and “the Opposition”

This article began with the premise that the appointment of non-partisan members to the Senate of Canada is not a sufficient condition for the Upper House to win lasting favour with Canadians in its 150-plus year quest for popular legitimacy.

It is not sufficient because non-partisans can fall prey to the same ideological blinders that characterize a partisan chamber. Whereas the original sin of a partisan Upper House is subservience to and mimicry of the Commons, a similar condition afflicts non-partisans who define themselves in the reverse, as a chamber defined narrowly as one which is in opposition to the Lower House.

The path to greater legitimacy for the Senate hangs in large part on how partisan and non-partisan senators understand the meaning of independence and opposition. For partisan senators, independence is derived from not having to stand for elections and being able to serve until the age of 75. This view, however, is inconsistent with the accompanying belief that a partisan caucus has the special right to be the “opposition” in the Senate because it is tied to a kindred group in the House of Commons.

If senators are independent because of their tenure, it follows that each of them has the capacity to “oppose” decisions made in the Lower House. What does not follow is the idea that one group of senators has greater right to be deemed as the “opposition” because it happens to be tied to the current opposition in the House of Commons.

This contradiction will become very clear if there is a change of government to a Conservative administration; the Senate Conservatives will undoubtedly change their appellation from “opposition” to “government.” This practice amounts to being the opposition when the wrong party is in power and not being the opposition when the right party is.

A more independent Senate should not allow for one group to be given privileges that are not afforded to other groups because of an outdated view of what it means to be the “opposition.” It amounts to saying that some forms of opposition to government legislation are more worthy than others. This is another reason why changes in the Parliament of Canada Act to provide equitable status to groups other than the government and opposition were so important. It is not so much that the entire Senate should be “the opposition,” but that the opposition in the Senate should be defined by its non-partisan character, rather than by the self-identification of a particular group.16

One of the fallacies of the notion of independence in the Upper House is the idea that the litmus test of opposition is voting against a government bill. It is not surprising that partisans would hold this position, but many non-partisan senators and Senate watchers also lean to this view. As a result, many reviews of the Senate’s track record since the reforms of 2016 use the metric of votes against government bills as a test of senatorial independence.17

This is, however, a narrow and short-sighted view of Senate independence. It is more about the individual senator’s desire to act without institutional constraint than it is about the independence of the institution. As a complementary chamber to the House of Commons, the Senate of Canada should not be defining itself in terms of how often it defeats legislation, but as the chamber that amplifies, clarifies, and from time to time, corrects legislation that comes from the elected Commons. It does so not only through a Third Reading vote on a given bill, but more importantly through the arc of legislative review, which includes activities inside and outside the Senate. As a thought experiment, consider a scenario where the Senate defeated bills coming from the Commons with regularity. While this kind of record would score highly on some measures of “independence,” it is highly unlikely that most Canadians would deem it to be a mark of success for an independent Senate.

The Quest for Legitimacy

As the Senate transitions from the uncertainty of the new appointments process to the entrenchment of non-partisan senators in the makeup of the Upper House, it will be essential for senators to shift their focus from issues of group identity to those of further institutional modernization and strengthening. There are no panaceas for the legitimacy challenge that the Senate has faced since its creation, and the appointment of non-partisan senators is no exception. That said, the current public favour for the new appointment process is a golden opportunity to press ahead with reforms, rule changes, and statutory updates that focus on the better functioning of the institution. While this article has touched on just a few areas for reform, they are the areas that will be most evident to the general public and which have the greatest potential to elevate the standing of institution, not just as an unavoidable feature of an inherited governance system, but as a valued – perhaps even cherished – pillar of Canadian democracy.


1 Just as significant is the changing demographic make-up of the current Senate, which has a more or less equal number of men and women, a dozen aboriginal members, and greater diversity than ever.

2 Eighty per cent of the public describe the fact that “new senators sit as independent members and are not active in a political party” as a “good change” for the Senate. On the other hand, 22 per cent of respondents believe the Senate to be “ineffective/pointless,” seven per cent say it is “a waste of money,” and six per cent describe it as “outdated.” URL:

3 This is not to say that a return to the previous model of partisan appointments to the Senate is preferable. On the contrary, going back to the “rewards and favours” approach will only accelerate and deepen public antipathy towards the Senate.

4 Michael Kirby and Hugh Segal. “A House Undivided: Making Senate Independence Work.” Public Policy Forum, September 22, 2016. URL:

5 While the Senate was never about “representation by population,” there is something deeply askew about the Atlantic region (population 2.3m) having 30 senators compared with Western Canada (population 11.5m) with only 24.

Reference re Senate Reform, (2014) 1 SCR 704, Case 35203. Supreme Court of Canada, URL:

7 C-49: An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts

8 Senator Woo introduced a motion to change rules of the Senate on February 18, 2020. URL: Senator Tannas moved amendments to that motion on June 23, 2020. URL:

9 The revised Parliament of Canada Act only recognizes up to three groups other than the government and the opposition and provides for stipends to the leaderships of these groups along a sliding scale, with the largest group receiving the same amounts as the opposition.

10 The Senate legal affairs committee called for the removal of this condition in 1980 and the Supreme Court confirmed that doing so would be justified under the unilateral federal amending procedure. A related issue is the criterion for senators to own land in the province or territory which they represent – another holdover from the Upper Chamber’s aristocratic origins.

11 Here is Senator Peter Harder in his first speech as Government Representative in the Senate: “As the Prime Minister indicated when he spoke with me, he would expect me to sit as an independent, but I will represent the Government of Canada in the Senate….I do not view my role as partisan but as representing the government. I’m sure that this is a work-in-progress that we all will have to work through as we seek new ways of working together…. I come to this with a spirit of independence but also an obligation and a responsibility that I take up on behalf of the government as its representative in the chamber.” URL:

12 “If at any Time on the Recommendation of the Governor General the Queen thinks fit to direct that Four or Eight Members be added to the Senate, the Governor General may by Summons to Four or Eight qualified Persons (as the Case may be), representing equally the Four Divisions of Canada, add to the Senate accordingly.”

13 The track record of voluntary “term limits” is, however, not encouraging. Most of the Conservative senators appointed by Prime Minister Harper, ostensibly for “fixed” eight-year terms, have not relinquished their seats at the end of those terms.

14 Including only the period from June 2016 to the end of the 43rd Parliament.

15 The removal of the Senate’s absolute veto, however, should not extend to constitutional amendments, which under The Constitution Act, 1982 provides for a suspensory veto of 180 days. Given the centrality of the constitution and the historic role of the Senate in its evolution, it would seem appropriate to retain the residual power of a suspensory veto on this set of issues.

16 The question of how many “opposition” groups should be allowed in a more independent Senate is a separate issue that does not change the underlying point that all such groups should be treated equitably. The current minimum threshold of nine senators to qualify for recognition is arguably too low. It is within the power of the Senate itself to change this threshold.

17 A recent example can be found at URL: