Revisit the Senate as It Was Meant to Be: The Upper House Was Created to Protect Provincial Interests in the Federal Legislative Process

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The first selection of the Members of the Legislative Council shall be made, except as regards Prince Edward Island, from the Legislative Councils of the various Provinces, so far as a sufficient number be found qualified and willing to serve; such Members shall be appointed by the Crown at the recommendation of the General Executive Government, upon the nomination of the respective Local Governments, and in such nomination due regard shall be had to the claims of the Members of the Legislative Council of the Opposition in each Province, so that all political parties may as nearly as possible be fairly represented.

--Fourteenth resolution of the Quebec Conference, October 1864

The scandal provoked by the expense claims of individual senators has obscured a deeper malaise surrounding the Senate --one that dates back to Confederation. This malaise has to do with the reasons why the Fathers of Confederation established a Senate in the first place, and with their failure to follow through with a selection procedure that would have made it possible for the Senate to perform the function intended for it.

Montesquieu wrote of the British Constitution, "Political liberty is to be found only ... when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go ... To prevent this abuse, it is necessary from the very nature of things that power should be a check to power."

That is what the Senate was meant to be: a power that acts as a check to power. Specifically, it was to represent the check the provinces were meant to exercise to hold those in power in Ottawa accountable and prevent their abuse of it. The Senate exists to protect the local and regional interests of the provinces within the federal legislative process.

Our constitution vests all the discretionary powers of the state in the governor general. However, he does not possess the authority to exercise these powers. We vest this authority, by democratic election, in the representatives we elect to Parliament and to our provincial legislatures. The governor general's most fundamental duty, as representative of the Sovereign, is to sanction the exercise of these discretionary powers. He sanctions that the people authorize their government to exercise these powers when Parliament, through his Privy Council, advises him to do so.

Today, only the House of Commons, through the prime minister of Canada, is active in the Governor's Council. Thus it is that the governor general must sanction the exercise of all the discretionary powers of the state upon the unopposed advice of the prime minister. Without the constitutional balance that the Senate was meant to provide, the Office of the Governor General functions as a rubber stamp for the Prime Minister's Office.

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However, section 18 of our constitution, as confirmed by section 4 of the Parliament of Canada Act, provides both the Senate and the House of Commons with the same powers and privileges as those belonging to the British House of Commons at the time of Confederation. This is so because the Senate was meant to be a representative institution, as representative of our wishes and interests as the House of Commons in the federal Parliament of Canada.

Because Canada is a federation of provinces, the people's political will regarding how they wish to govern themselves is divided. While the members of the House of Commons represent our will to be governed in common throughout Canada, the Senate was instituted to represent and protect those purely local interests which the people want diversely governed by the provinces. Thus, section 22 of our constitution states over and over that senators "shall represent" the provinces in the Parliament of Canada.

Hence, both houses of our federal Parliament are needed for the people's political will to be fully expressed. …