The Canadian Senate

Yesterday, the Court of Appeal of the Province of Quebec ruled that the efforts of the Canadian federal government to convert the Upper House of the Canadian legislature into an elective body are unconstitutional because the federal government has not obtained the support of seven provinces with at least 50 percent of the country’s population. See press reaction here, here, and here.

The court’s ruling is a setback for Canada’s governing Conservative party. It also has implications for Canadian business historians and the study of the relationship between business and the State in Canadian history. I will get to the implications of this ruling for business historians in the second half of this blog post.  The court’s ruling contains a great deal of important and accurate historical material, much of which appears to be based on an expert witness opinion submitted earlier this year by Christopher Manfredi of McGill University.

For background, I should explain that Canada’s current government has been attempting to reform Canada’s unelected upper house, the Senate, by making it into an elective body.  For the benefit of non-Canadian readers, I should explain that the Canadian Senate was created in the 1867 to serve as a rough approximation of the British House of Lords. The 1867 constitution also created an elected House of Commons, which is where the real power in Canada lies.  The Canadian Senate has powers similar to that of the Irish Seanad.

The 1867 constitution required Senators to have at least $4,000 in real property in the province they represent. This provision is still in place, even though $4,000 buys far less land than it did in 1867. The Senate’s members are appointed by the Crown (i.e., the Prime Minister). Interestingly enough. 95% of them happen to belong to the same political party as the Prime Minister who appoints them.  As Quebec’s Court of Appeal noted in the judgement delivered yesterday, Canada experimented with an elected upper house in the 1850s and 1860s, but in 1867 it reverted to an British-style unelected upper chamber.

In the early 21st century, there is a consensus that something ought to be done about the Canadian Senate. Critics of the current Canadian federal government have charged that its Senate reform law amounts to a change to the 1867 constitution and that the federal government can’t make such drastic changes unilaterally: the Canadian constitution says the Senate can only be changed with the support of seven provincial legislatures (and the seven provinces in question have to have at least half of Canada’s population). This is the so-called 7/50 amending formula.

Earlier this year, the Canadian government released a document, a so-called factum, justifying its decision to reform the Senate without the support of the provincial governments.  This document  invokes the “Living Tree” doctrine of Canadian constitutional interpretation and says that Canadian Supreme Court should interpret the meaning of the constitution in a flexible way rather than strictly adhering to the wording of a document created nearly 150 years ago.

“Slavish adherence to original intent has been rejected by this Court in, for example, the Same Sex Marriage Reference, where the Court held that the understanding of ‘marriage’ that prevailed in 1867 should not be determinative of our present day understanding.”

That’s an interesting argument, especially since the 7/50  rule actually dates from 1982. The arguments in favour of the Living Tree approach to constitutional interpretation are strongest when we are considering constitutional texts produced in a society with radically different values than our own.  It is far less strong when we are talking about a section of the constitution that dates from 1982.

The federal government’s factum is a fascinating document and contains some interesting information about the history of the Canadian Senate.  However, there were some historical statements on pages 17-19 with which I disagree.  (This is the section called “The Senate at Confederation”). In fact, these historical statements were just plain wrong and I am very glad that the Quebec Court of Appeal rejected them and based its ruling on correct history.

Here are the historical statements that I don’t think are entirely accurate. I’m put the key sentences in bold. They relate to social class.

[Sir John A.] Macdonald accepted that the “constitution of the upper house should be in  accordance with the British system as nearly as circumstances would allow” a phrase  reflecting the general tone of the preamble to the Constitution Act, 1867. However,  Macdonald envisioned a Senate that was not like the House of Lords. The members of the Senate were to be like those of the lower [House], men of the people and from the people.

Ok, so here the factum suggests that the Canadian Upper House was not intended to represent the interests of the upper classes in Canadian society. The problem with this claim is that there is a lot of evidence to suggest that the Canadian Senate was indeed intended to represent the upper classes: most Canadians in 1867 still thought about bicameral legislatures in terms of the representation of different social classes.  The lower chamber was intended to represent the commoners, the upper chamber the wealthy. Consider the evidence that is presented in the factum’s very next paragraph:

The method of selecting Senators was a matter of controversy. Macdonald
favoured an appointed Senate, rather than one with elected members; however, he
accepted that “the arguments for an elective council are numerous and strong” and that
the elected upper house in the united province of Canada “has not been a failure”. The
primary reason he favoured an appointed Senate was that the size of the constituencies
and the costs of mounting an election would deter “men of standing” from coming
forward.63 George Brown shared this concern, saying that ” … we must all feel that the
election of members for such enormous districts as form the constituencies of the upper
house has become a great practical inconvenience.,,64 A

What did Macdonald mean by “men of standing”? It is pretty clear from context that he was talking about men of property, or what Occupy Wall Street would now call the 1%.  The idea that Canada’s upper chambers should represent the upper classes died hard. Today, we tend to forget how undemocratic the ideas of nineteenth-century Canadians truly were.

In 1880, the Conservative politician François Xavier Anselme Trudel defended Quebec’s unelected upper house from the “advanced liberals” who wished to abolish it. Trudel, who was a member of the conservative ultramontane wing of the Catholic Church, said that having an unelected upper house to represent “les classes superieures” of Quebec was in keeping with the principles of the wider British Empire. He seems to have referring to the House of Lords here. Moreover, the institution reflected the eternal truth that God had divided men into two classes, the rich and the poor. He asked how could “les artisans, les laboureurs, les simples commercants” be equipped to legislate on

great matters of state? Such humble folk, he opined, should be content with their existing station in life rather than seek admission to the upper house.

As late as 1885, when Prime Minister Macdonald was working on a law to establish a uniform national property qualification for voters, he told his secretary Joseph Pope that he found the idea of votes for all adult males “repellent”. Indeed, he thought that no advocate of manhood suffrage deserved to call himself Conservative. Macdonald, who feared that the Liberal-dominated provincial legislatures might introduce manhood suffrage, regarded the 1885 national franchise law as one of his greatest accomplishments, a triumph similar in importance to the completion of the Pacific railway in that year and Confederation in 1867. Macdonald favoured votes for unmarried propertied women, but was not too upset when this feature of his bill was dropped due to backbencher pressure. The main thing, in his eyes, was that the property qualification for men had been preserved and extended to all corners of the Dominion.

All of this raises the question of why Canada’s upper house is named the Senate rather than the House of Lords. After all, Canada’s Senators are similar to Britain’s life peers.  The 72 Resolutions, the rough draft of the 1867 constitution produced by the Fathers of Confederation in 1864, did not specify what the name of Canada’s unelected upper house should be, although it did say that the elected lower chamber would be called the House of Commons. Arthur Hamilton Gordon, the Lt Governor of New Brunnswick explained why they did this in a letter to Edward Cardwell, the British Colonial Secretary in a letter dated 5 December 1864.

“There is one point which I wish you would consider, though your first inclination will be to laugh. The Confederate lower house is to be the House of Commons—the delegates have been afraid themselves to give a name to the Upper House, but would gladly see conferred on it a title which would make a seat in it more coveted. An hereditary peerage is, of course, here impossible, but it is very desirable that the members of the Upper House of the British America should have some more distinctive title than that of “Honble”which they share with every member of every petty State legislature in the US and every office holder and ex office holder in these provinces; and I can see no reason why they should not like the Scotch Judges have the title of Lord for Life.  It would make a vast difference in their standing and a House of Lords will be far more on an equality with a “House of Commons “ than a mere “Legislative Council” ever can be. If this be found impossible, though I cannot see why it should be, I would give them some other distinctive title. A leading member of the Canadian Govt told me they did not dare to propose it, as it would said their wish was to ennoble themselves, but that the words “House of Commons” were meant to be a sort of hint  to you to supply the complement of such a body.”

In the excellent decision it released yesterday, the Quebec Court of Appeal acknowledged that the creation of an unelected upper house for Canada in 1867 had indeed been connected to the politics of social class. It correctly recognized that other considerations also shaped the decision to make this body an appointed rather than elected one.

Let me quote from the Court of Appeal’s decision. Again, I will put the words relevant to the politics of social class in bold.

Canada’s founding fathers sought to implant a parliament modeled on that of the United Kingdom (see the preamble to the Constitution Act, 1867). Accordingly, there were two legislative houses, the lower one also called the House of Commons and the upper one, called the Senate, since the British colonies of North America did not have an established nobility that could constitute a legislative chamber such as the House of Lords.^[1]

These two institutions enjoy the same privileges, immunities and powers as those recognized at the time by the Parliament of the United Kingdom and by its members (section 18, Constitution Act, 1867). In law their powers were identical, save with respect to bills involving the expenditure of public funds or the imposition of taxes (section 53, Constitution Act, 1867) and some constitutional amendments (section 47, Constitution Act, 1982).

The transcript of the pre-confederation conferences shows that the founding fathers discussed the role and composition of the Senate at length. There is no doubt that this institution was a fundamental component of the federal compromise in 1867.

For Sir John A. Macdonald, there was no question of senators being elected. He disliked the fact that the members of the Legislative Council of the parliament of the province of Canada had been so elected for renewable mandates of eight years.^[2]

Historians recognize that for the fathers of confederation, the Senate would have the following functions:

• · Regional representation (three then four regions);
• · Representation of Quebec’s Anglophone minority;
• · Sober second thought for bills and amendments to them;
• ·Providing oversight to those who were wealthy, including the possibility of controlling any excesses of elected officials.

Unlike provincial legislatures, however, certain characteristics of the Senate flow from the pre-confederative compromise. It must therefore be recognized that the provinces have an interest in those characteristics. Thus, contrary to the internal constitution of a province, Parliament’s power to amend the internal federal constitution is limited by the fact that it cannot amend those aspects of its structure that affect provincial interests.