By Richard Forbes.
Featured image via Christopher Pike, Toronto Star.
Here at the Ribbon, we like big ideas and it will take a whole helluva lot of big ideas to fix the Senate. The much beleaguered Red Chamber – Canada’s chamber of ‘sober second thought’ – has been in the crosshairs of constitutional reformers since it was created. Most of the controversy surrounding the Red Chamber, however, hasn’t surrounded the content of the Senate’s committee work, per se but rather the composition of the Senate itself rather: who is it in and why.
This week we can add Senator Don Meredith to the reasons why the Senate ought to be fixed. Meredith is the latest of Harper’s political Senate appointments to find himself in hot water; the senator faces allegations of an inappropriate sexual relationship with a teen under eighteen and is braving calls from all corners of Parliament Hill to resign.
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In the grand scheme of things, Meredith is just yet another exhibit of the Senate’s failings – begging yet another question surrounding the Senate’s much maligned appointment and selection process. Should senators be elected? Who should appoint them? Who should make the nomination lists? Are the provinces being represented adequately? Should there be proportional representation in the Senate? The crux of the problem is the confusion surrounding the Senate’s fundamental nature: it can’t act as a real check on democracy as a partisan extension of the House of Commons nor can it act as a proper partisan element without democraticisation; worse still, the Senate cannot represent the will of provinces nor can it counter-balance the will of the most populous provinces when senators are selected by the head of Canada’s government.
Only constitutional reform can ultimately end these fundamental questions which, left unanswered, have persisted in undermining the Senate’s legitimacy in the eyes of Canadians. But it’s hard to express just how difficult it is to craft a possible route of compromise on constitutional reform; comparisons to, say, engineering a moon landing are inadequate: humanity has visited the moon six times, the Canadian constitution has been amended via its general amending formula only once in 1983. At this rate, we have a better chance putting Canada on the moon unilaterally than we do repairing the Senate via constitutional amendments.
But let’s try anyways…
The issue with constitutional reform is the spidery nature of reform – to reach the consensus needed, ‘mission creep’ occurs – each party has their own interests which they link as a necessity to achieving support. This can result in a perilous misadventure in political bargaining: to even propose constitutional reform, under the Regional Veto Law, a resolution needs the consent of Ontario, Quebec, British Columbia, Alberta, two Atlantic provinces (that aren’t PEI) and one other prairie province. Once it’s been proposed, an amendment needs to be ratified by at least seven provinces representing half of Canada’s population – this is what we call the general amending formula (the 7/50 test).
In total, there’s 152 ways to meet the general amending formula’s conditions but there’s no path to amendment with both Quebec and Ontario in opposition and only one possible combination can bypass support from Alberta and British Columbia: the narrowest path to amendment (seven provinces / 51.9%).
Reforming the Senate without the support of Alberta and British Columbia would be pointless since they’re the provinces that are most opposed to the Senate’s current selection process (and they still retain a regional veto, remember), but getting their support without their ratification could be pragmatic given both provinces legally require a provincial referendum on constitutional reform prior to ratification.
It’s in this sense constitutional reform complexly weaves and entangles the pitfalls of catty Canadian regionalism, backroom ‘executive federalism’ and raging populist politics to make for an herculean political challenge.
A constitutional reform package for the Senate has to both respect the BC’s calls for greater western seat representation and the Maritimes’ and the Prairies’ historical ‘over-representation’ while pleasing both the West, which wants an elected Senate and the central provinces (especially Ontario), who have traditionally supported the Senate’s function as a chamber of second thought. The proposal needs to be both populist and liberal – appealing to both people who want a democratic element to the Senate and others who want a check on democracy – but it also needs to be regionally proportional and yet distinctly unproportional to satisfy the various provinces, many of whom benefit from the constitution’s original deal-making in terms of Senate seat allocation.
To that end, we suggest a plan with four components – all of which are essential to convince each party that the plan would create a stronger Senate. It’s not possible to pursue simply one of the components without addressing all of the issues at stake for the provinces in the conversation. These components are:
1) An independent Senate.
2) A gender quota.
3) A rational seat allocation: ‘The Confederation Formula’
4) Elected representatives.
Over the past year, it’s become clear that the Trudeau government’s plan to appoint senators through a independent advisory board has resulted in less politicalised appointments than the decision-making that was responsible for the likes of ‘Senator Don Meredith’, ‘Senator Lynn Beyak’ (who defended residential schools recently) ‘Senator Mike Duffy’ (who looks good in comparison) and ‘Senator Patrick Brazeau.’ Simply put: it’s a process that has been working. The appointments chosen from the advisory board’s selections have held a much higher standard for senators in terms of their past experience and contributions to Canadian society.
If anything it’s astonishing the Trudeau government has followed through with its plan given the challenges posed by governing with an independent Senate. As a quasi-constitutional change, Trudeau’s advisory board could be dropped by Trudeau himself, it could and probably will be dropped by his successor and it very well might not ever be attempted again. Constitutionalising the role of the independent advisory board, however, and the notion of an ‘independent’ Senate, would have the effect of securing the future of Trudeau’s design and preventing ethically and politically compromised or otherwise unsuitable nominees from entering the fray.
As an addition to Trudeau’s plan, I see no reason why the Senate shouldn’t maintain a gender quota. The independent advisory board ought to be expected to propose appointments in such a way as to transition the Senate towards gender parity and maintaining that parity long-term. The Senate for some time now has had a much higher rate of woman members (currently 43%) than the House of Commons – and since its membership would mostly be on an appointment basis, this process should make an attempt to represent the broader population rather than any persisting patriarchal biases in this cross-section of society. It’s a very ‘Canadian’ notion for its upper chamber to function as a check on power that’s representative, not of elites per se, but voices overlooked in our democracy.
A Rational Seat Distribution
At first glance, the current distribution of Senate seats may seem nonsensical but in the context at which this distribution was devised it was fairly rational: Senate seat distribution is both regional and population-sensitive within a region.
Each region in Canada (Ontario, Quebec, the Maritimes and the West) was historically given twenty four senators. However, Newfoundland later joined Canada (receiving six senators) and among the western provinces, British Columbia and Alberta grew much larger than Saskatchewan and Manitoba over time. The latter resulted in a strange anachronism: rather than British Columbia and Alberta possessing a larger share of the West’s senators to reflect their future population growth, the western provinces possess an equal share of the region’s twenty four seats (six piddly seats each).
To resolve this, we propose an update to the formula that (1) includes Newfoundland and Labrador with the Maritimes as a single region, the Atlantic provinces, and, (2) expands the size of the Senate to allow for a distribution of seats among the western provinces to reflect the contrast in population size between Alberta and British Columbia versus Saskatchewan and Manitoba – but without reducing the existing seat counts of Saskatchewan and Manitoba or any other province.
The simplest way to do this is to raise Ontario and Quebec’s seat count each to thirty (up from twenty four) to match the size of the Atlantic caucus and then distribute the West’s seats amongst the western provinces in a manner that is approximately proportional: British Columbia (ten), Alberta (eight), Manitoba (six) and Saskatchewan (six.) The problem with this design is Alberta is getting short changed: Alberta’s share of the western population (39%) is larger than New Brunswick’s share of the Atlantic population (31%) but the latter would receive two more Senate seats than Alberta because Saskatchewan and Manitoba’s constitutional inheritance essentially locks in half the region’s Senate seats to two provinces whose share of the region’s population only accounts for a fifth of the region.
To work around this, we propose a Made-in-Canada solution and when we say ‘Made-in-Canada,’ we mean over-complicated and conciliatory: regions would have approximately thirty seats each but that total wouldn’t be fixed.
The simplest proposal in these regards would be to just expand the West’s caucus to thirty-two but without raising the size of the Quebec and Ontario’s caucuses, Quebec’s proportion of Senate seats slips below their share of the Canadian population which probably would be a source of political resistance. Instead, we would suggest what we call ‘the Confederation formula’ for Senate seat allocation which replicates the wonky nature of post-confederation Senate seat distribution and respects its constitutional heritage while still operating analytically in the sense that it can be applied consistently and respond (roughly) coherently to alternate and changing contexts.
Under this system, the number of Senate seats that a province receives is determined by its share of its region’s population on a static and fixed basis outlined in the table below…
For example if a province’s population is 40% of its region’s population, like Nova Scotia or British Columbia, those provinces receive ten seats. Ultimately, the final result under this ‘Confederation formula’ is that Ontario and Quebec would see their Senate seat count rise to thirty while British Columbia and Alberta clinched ten Senate seats. The other provinces would maintain their original Senate seat numbers. We believe this is a fair proposal that would be acceptable to all parties – the modestly larger western caucus (thirty-two over thirty) would accommodate the old constitutional deal struck with Saskatchewan and Manitoba.
To observe how the Confederation formula would operate in different cases that might arise, we ran a simulation of +1200 scenarios with regions containing anywhere between one to eight provinces, each possessing a randomized share of said region’s population.
We found the test outcomes of the Confederation formula reflect the very shape of Canada’s political geography: a vital part of the formula’s background assumptions is that regions are either single blocs are blocs of four provinces (just like Canada’s regions.) Balkanizing regions results in much higher returns of senators, while monopolized regions featuring hypothetical ‘dipoles’ are under-represented.
Under the formula, the minimum amount of senators a region could possess appears to be, in practice, twenty four (a lovely nod to the original constitutional arrangement), the maximum tested was an absurd scenario with forty eight senators (eight provinces, each with more than 0.1% of the region’s population) but in theory the maximum is infinite. As an additional step to the formula, we could imagine regions being ‘topped up’ if they would otherwise receive less than thirty Senate seats in the final allocation.
Elected Representatives
Until now the debate surrounding whether the Senate should be elected or appointed has been a black and white affair: some believe it’s unacceptable in a democratic society to have the decisions of elected officials vetoed by non-elected officials, others believe the appointment nature of the Senate is essential in its role as a check value to Canadian democracy. At the heart of the divide is populism: whether one regards the popular will as unassailable or not.
We believe there’s no need for a stark ‘either / or’ but rather that a compromise can be found in the form of elected representatives: in our proposal, within each province’s share of senators, one of those senators would be elected in provincially-held elections with term limits and partisan affiliation – resulting in 8% of the proposed new Senate, ten senators altogether, being elected officials while the remaining senators would be appointed.
It’s our belief that this proposal could be appreciated by both sides of the democratic debate as a stronger Senate than our existing model. The share of elected senators wouldn’t be large enough to compromise the integrity of the Red Chamber’s decision-making but their presence would allow for new ideas to filter into the Senate from the Senate elections where they could be engaged more fully. While they would be partisan, Senate elections would be unique to the Canadian political experience: the individual priorities of candidates for the Senate would affect the character of the elections. Meanwhile, regular elections would strengthen the ties between the provinces and Senate caucuses that represent them.
Adding an element of partisanship when we’re transitioning towards an independent Senate may seem contradictory, but it would be a key development to facilitate that transition. Retaining a small caucus of elected partisan officials would act as the ‘foothold’ for political parties – the conduit for communication between both houses – with the hopes of ensuring a more collaborative Parliament, rather than, say, directing the Senate in the way that the ‘Leader of the Government in the Senate’ may have once in the past.
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The Ribbon 
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