I. Introduction

The perspective I bring to your deliberations is personal.  My objective is to inform your discussions by sharing my experiences as both an elected member of a provincial assembly and an appointed member of the Senate.

I have always agreed with the basic notion that all of Canada’s parliamentary institutions should be elected.  An unelected Senate definitely entails many disadvantages in a modern democracy like Canada.  The most commonly mentioned among these disadvantages are the often negative public perception of its role, the limitations of its credibility in the development of public policy and the self imposed restraint that most of its members deem warranted when there is a disagreement between the two Houses.  At the same time, I recognize from personal experience that the unelected Senate comes with certain advantages that benefit Canadians.  

This leads me to the two key messages that I would like to impress upon you with my presentation.  It is important to recognize both the advantages and the disadvantages of an un-elected chamber.  As we explore ways of making it elected, I believe you should make every effort to preserve as many of the advantages as possible.  I encourage you to be creative and open minded so that you can formulate recommendations that can be implemented successfully despite the obvious challenges in our federation and under our Constitution.

 

II. Personal Perspective

I was privileged to serve in the Manitoba Legislature as the member for River Heights from 1986 to 1994. I was leader of a political party for nearly ten years, and Leader of the Official Opposition for two and a half years.  I have had the honour to serve in the Senate of Canada since 1994, where I have served as Deputy Leader of the Government and as a federal cabinet minister as Leader of the Government in the Senate.  So I think it is fair to say that I have some perspective on the differences between elected and non-elected legislative bodies.  The nature of the work and the perspectives that each institutional reality imposes are so different that it is hard to know where to begin to compare them. As an elected person, it seems to me now, in retrospect, that my focus was almost always more short-term, more immediate.  It had to be.  Electoral politics is high energy, adrenaline-driven, crisis-oriented and media saturated.  There is always a raft of impending decisions, emerging issues, surprise announcements and sudden changes in the course of debate.  These challenges are just par for the course – they are neither positive nor negative.  They are simply the everyday reality for elected persons.  

The institutional reality in an appointed body, however, is quite different in many respects.  I want to emphasize that I am sharing my own personal experience and perspective, but I know from discussions with colleagues that many of them share this view.  Again, the realities of the Senate are not necessarily positive or negative – not necessarily better or worse than the conditions in an elected body.  But they are different.  To a limited extent, the Senate has its share of occasional crises and media frenzy.  But if you consider for a moment the average tenure of a Senator (10 to 12 years on average), you can appreciate that it is much easier to adopt a long-term view of things.  It is still possible to get caught up in the excitement about the latest government scandal or the burning policy issue of the day. But Senators have the option of setting their sights on other things.  They can take a longer view.  Some of us would even describe this as a luxury that elected representatives can ill afford.  Senators are lucky in a way.  They can set out to pursue a policy issue or program idea that is nowhere on the media or public radar, and spend years trying to bring it to fruition.

I want to share my own experience in this vein, but let me begin by stressing that my story is hardly unique.  I could mention Senator Keith Davey, whose study on the concentration of media in Canada is still being consulted by business people, journalists, ethicists and academics, even today.  Senator David Croll’s groundbreaking study of poverty in Canada led to major changes to our social programs.  Senator Michael Kirby’s study of the health care system and mental health in Canada, and Senator Herb Sparrow’s landmark study on soil erosion have all been reprinted many, many times, and are still very much in demand by governments and policy developers worldwide.

One of my personal experiences has to do with end of life care.  I chaired a committee that studied this important issue when it was of little interest to members of the other House.  My work began long before the committee was established, when I was a member of another committee that was studying euthanasia and assisted suicide.  During the course of that study, where there were strongly held positions and very little middle ground, one of the few things we could agree on was the deplorable situation for end of life care in every province in Canada.  I arrived at the conclusion that as a society we could not even have an intelligent discussion about euthanasia until we could guarantee quality end of life care for every Canadian.  Five years later when it was clear to me anecdotally that little had been done on the issue of end of life care, I set out to launch a study in the Senate on end of life care. The purpose was to hear from a wide range of perspectives on an issue that was not on the immediate agenda of the Minister of Health but was on the mind of ordinary Canadians, and to write a report that would have an impact.  The report contained 14 recommendations. But our work didn’t stop with the report.  We did follow ups, we did reviews of government progress on our recommendations.  We did promotion and education about the issues.  I am happy to say that we succeeded, and that a few years after we reported, I was given the opportunity as Minister responsible for Palliative Care to implement some of our key recommendations, including the Compassionate Leave Benefit that allows people to draw on the Employment Insurance system when they are obliged to stay home to take care of a loved one who is dying. Ten years ago only 5-10% of dying Canadians had access to palliative and end of life care. Now almost 40% have access to this care.

The key point I want you to take from this personal illustration is that the perspective – the horizon – for an unelected Senator with a long tenure is totally different from someone who is never more than five years away from seeking re-election – or four years, if we consider the Prime Minister's fixed election legislation.  This perspective is not better.  It is simply different.  And it is valuable.  On the whole, the parliamentary process is enriched – and the citizens of Canada are better served – by the inclusion of these two very different perspectives.  As you look at options for changing the method of selection, I urge you to bear these differences in mind, and make every effort to preserve some of the advantages of the current system as you move forward.

 

III. Representation Has Many Dimensions

Let me address another advantage of the current system that I would ask you to bear in mind – and to preserve to the extent possible, as you carry out your work. 

One of the greatest advantages of the system of appointments is the opportunity it presents to the Prime Minister to redress certain imbalances and gaps in representation in the federal Parliament.  Our country is vast, and its governance is almost infinitely complex.  The electoral system ensures that every riding in the country sends a representative to the House of Commons.  But this system does not always ensure that the membership of the House of Commons is broadly representative of the population as a whole.  As proud as we are of our democratic institutions, we must acknowledge that our system has resulted in a situation where women, minorities, different socio-economic groups and other important sectors of our society have all too often been underrepresented – or not represented at all.

The Senate has always presented Prime Ministers with the opportunity to give underrepresented groups a seat at the table, to ensure their perspective is heard – not just through consultation with stakeholders outside of Parliament, but by giving them a seat in Parliament.

It is hard to argue with the results.  The Senate has the highest proportion of women members of any federal or provincial parliamentary assembly in Canada.  The proportion peaked a few years ago at 35%, and it is currently 32.4%.    By contrast, women hold only 22.4% of the seats in the House of Commons.  Manitoba has much to be proud of, with 32.1%, but most of the provincial assemblies are in line with the House of Commons, in the low twenties.

Aboriginal representation is another key issue in a country like Canada.  The electoral system does not usually result in representation that is comparable to the proportion of aboriginal persons in the general population.  Aboriginal peoples account for about 4% of the Canadian population.  However, in the House of Commons the seats held by aboriginal persons is less than half that proportion: 1.6%.  As a result of the exercise of prime ministerial discretion, however, the proportion in the Senate is 6.7%.

There are so many other areas where the Senate has provided the opportunity to include voices and perspectives that were lacking on the national stage – whether it is inclusion of minority communities in our multicultural society, or the inclusion of various backgrounds, professions and experience that for whatever reason is not present in the House of Commons.

Perspective and “representativeness” are just two of the institutional differences I wanted to highlight for you today.  There are certainly others.  I want to stress that I make this point to remind you all that the current system has both advantages and disadvantages.  We all are familiar with the disadvantages.  But as you examine options for moving to a different model of selection, I urge you to discover the advantages that exist, and to make every effort to ensure that whatever model you arrive at, you will retain as much as possible of those advantages.

 

IV. The Larger Picture

This Subcommittee was established with a very specific focus.  Not democratic reform, not parliamentary reform, not even Senate reform.  The mandate is the method of selection of Manitoba’s Senators.

But of course it is impossible to evaluate options or to make recommendations in this area without being aware of the larger picture.  Changes to the method of selection of Senators may very well have a huge impact on all the other aspects of our federal parliamentary life, and even on the conduct of federal-provincial relations.

When former Prime Minister Blair set out to renew the House of Lords in the United Kingdom, he began by establishing a commission to study the options for going about it.  Being a Labour Prime Minister, he appointed a prominent Conservative as Chair.  Lord Wakeham had served both as Leader of the House of Commons and Leader of the House of Lords in successive Conservative governments.  The Commission included representation of all three major parties.  To me, one of the most striking conclusions of their important report, tabled in 2000, was the important distinction it makes between the role of an institution and the method of selecting its members.

The report said that method of selection cannot be determined in advance of defining the role of the institution.  Electing a group of people, then trying to figure out what their job should be, is putting the cart before the horse.  The Commission argues that the method of selection can only be settled once the role of the institution is clearly defined.  That assessment is very logical. I would even say that the unfinished business of Lords reform, and the inability to achieve a lasting solution on the method of selecting its members is the result of a lack of consensus on the role of the Upper House in Britain.

The link between role and method of selection is of critical importance.  Each has an effect on the other.  As you consider options for methods of selection, you should take into account the significant impact your choices will make on the evolution of the Senate's role in the federal Parliament.

Any discussion of direct election by universal suffrage raises concerns about the constitutional provisions about age requirements and tenure.  In modern times, the average term of a Senator is in the range of 10-12 years.  Let me draw two extreme examples as a form of illustration of the situations that can arise if we alter the method of selection without doing anything else.  One person could be elected to the Senate on her 30^th birthday, and by the letter of the Constitution, serve for 45 years before retirement.  Another person could be elected on his 74^th birthday, and by the time he is sworn in, have a term of mere months before Manitobans would have to go back to the polls to elect a new Senator.  These scenarios, resulting from a “simple” change in method of selection are absurd.  But I draw your attention to this extension of logic because it helps us to realize that even a “simple” thing like electing Senators forces us to reconsider the appropriateness of the current constitutional text which lacks a defined term but imposes age requirements.

Age and tenure are just two examples of the unintended consequences of what appears on its face to be a “simple” change to the method of selection.  There are many other potential impacts on issues like powers, regional distribution of seats, the role of the House of Commons as the sole “confidence” chamber, etc.  All of these factors are intertwined, and it is not realistic to expect that we can change one without affecting the others.

I do not remind you of the complexity of this issue as a way of discouraging you from pursing your mandate.  I want to reiterate that I support electing Senators.  But I caution you to bear in mind the broader implications of the options you consider, and to avoid the obvious pitfalls as you formulate your recommendations.

While I am on the subject of “the big picture” let me also say that our democracy is complex.  The Senate is only one institution among many, and the method of selecting its members is only one detail that defines its role and function.  We should elect Senators.  But we should not be tricked into thinking that by electing Senators we have fixed everything that needs fixing in our democracy.  One of the most glaring concerns to us in western Canada is the distribution of Senate seats that has gone unchanged since western provinces joined Confederation.  Changing the method of selection will do nothing to address this problem, and depending on the impact of elections, it may even aggravate the problem.

Most politicians talk about Senate reform.  What we really need is parliamentary reform – to address the shortcomings of the Senate, the House of Commons and of the office of Prime Minister.  Senate elections are important, but at the same time I urge you to keep an eye on “the big picture” as you do you work.

I have noticed that many of your discussions with other witnesses have touched upon the powers of the Senate.  It is practically impossible to discuss changing the method of selection without considering how this will affect the use of the powers that exist, and/or whether the current powers of the institution are appropriate for the new method of selection.  Manitoba currently has 6 seats in an institution whose plenary powers are subject to the political restraint of its appointed members.  If Manitoba’s delegation were elected, no doubt that culture would evolve into one where the Senators routinely disagree with the House of Commons.  I don’t want to invoke apocalyptic scenarios of gridlock, but I think we can all agree there would be a significant difference in behaviour. 

Now, I think that would be a good thing for Manitoba, but I can also see how other provinces might view this as a zero-sum game: that the gain in political power of the less populous provinces would come at their expense.  We can hardly wonder why Ontario and Quebec would be reluctant to see a fully elected Senate, where their delegations are much smaller in proportion to their House of Commons delegations.  The current government of Ontario favours abolition, but in the past, Ontario governments have often tied Senate elections to a parallel reduction in its powers.  The link between method of selection and powers is one of the key conundrums that has made Senate reform, and the necessary consensus of the provinces, so elusive.  An important challenge for you as you pursue this issue is to find a solution that minimizes these concerns among our provincial partners.

 

V. Challenges and Risks

Your biggest challenge, as I see it, is the risk you take that by embracing direct election by universal suffrage you will run afoul of the constitutional scholars who say that this can only be achieved by way of a formal amendment to the Constitution ratified by the appropriate number of provinces.  I don’t even want to enter into the debate on which amending formula applies, because there is not even consensus on that question.

My suggestion, quite simply, is that you take into account options that could minimize, or possibly even eliminate the risks of your recommendations running aground on the rocks of a court challenge.

The most obvious of these options, of course, is to seek the consensus of the other provinces to amend the Constitution to provide for elections. Failing that, I think you need to be very cautious about how you move forward.  Any indirect or hybrid method, such as the Prime Minister’s proposal to appoint persons who have been selected through provincial processes, needs to be evaluated honestly and realistically. Anything short of a formal amendment to the Constitution will run some risk of being successfully challenged in court. Your evaluation of options has to take into account the hostility of some provincial governments to the Prime Minister’s proposal, and the serious questions that have been raised about whether such a process could survive the court challenge threatened by Quebec.  I happen to think that the Prime Minister’s approach is very high risk in terms of potential court challenges.  But ultimately that is for you to judge as you formulate your recommendations.

I also want to say that I come at this issue from a strong belief in the rule of law.  I believe that the Senate should be elected.  But I also believe that this change should be achieved in such a way that there is no doubt as to the legality and the constitutionality of the process we follow.  As a Manitoban, as a Canadian, and as someone who believes that our multicultural reality is invaluable to our prosperity and our welfare as a nation, I regard the rule of law as part of the bedrock that supports our whole system of values.  Democracy, justice and freedom are much more than simple “majority rules”.  To put it in terms of enlightened self-interest, we are a province with a small population, and we need to have regard for the constitutional rights of other provinces, lest our own constitutional rights be disregarded.  We should be particularly concerned about attempting to achieve indirectly anything that is directly prohibited by the Constitution.

It is my belief that you will meet with success if you consider means of electing Senators that are likely to survive any constitutional challenge.

 

VI. Proposed Solution

Your very clear mandate is to examine options for electing Senators.  There are many options for electing people to an institution, and you have come across lots of ideas in your hearings.

Let me outline a solution that I believe would satisfy the underlying objective – namely to send Senators to Ottawa with a clear democratic mandate – without running the risk of failure on constitutional grounds.

I ask you to consider a process of indirect election that retains some of the discretion at the Prime Ministerial level to address imbalances and shortcomings in the overall membership of the federal Parliament.

Imagine if the Manitoba Assembly adopted a process for approving candidates akin to the processes in place throughout Canada for appointing non partisan positions such as Auditor General, Chief Electoral Officer, Privacy Commissioner or Information Commissioner.  These are usually done by consensus or at least with broad support from more than just the government party.  Such a process could be considered for the selection of Senators.  It could include a requirement that candidates for inclusion in the list must obtain the support of the majority of the caucus of each officially recognized party in the Assembly.  The Assembly could come up with a list of names for each vacancy – perhaps three or five Manitobans who are widely acceptable to all the parties in the Assembly.  The Prime Minister would choose a person who is clearly acceptable to the elected representatives of Manitobans, but there would still be some flexibility to retain many of the institutional advantages the Senate currently provides.

I believe that such an approach would significantly reduce the risk of a successful constitutional challenge.  Direct election resulting in an individual with more votes than any other candidate would leave the Prime Minister with no option politically, whatever position he may be in legally.  Whatever fig leaf of explanation the PMO might put on this, it is hard to take seriously any legal argument that this process is not an election as far as the Constitution is concerned.  This is the inescapable reality that exposes this option to the risk of a successful court challenge.  Under the indirect system that I describe, the Prime Minister would be choosing from a short list acceptable to the province, while retaining some discretion.

This solution would also leave some discretion in the hands of the Assembly, so that unintended consequences, such as 45-year terms, could be avoided.

I want to draw your attention to a system that I believe is parallel to my proposal.  The appointment of federal judges in Canada is pursuant to a constitutional provision.  Nonetheless, a tradition has grown up around this, and we are all familiar with the consultative panels that exist in every province and territory to vet candidates and come up with lists of recommended candidates.  Nothing in this process constrains the constitutional provision that appointment is by the Governor General acting on the advice of ministers, and indeed the government retains the power to appoint candidates not recommended by the panels.  But the system has been established within the bounds of the Constitution, and it has served to improve public confidence in the judicial system and in the impartiality of judges.  My approach to selecting Senators would mimic the judicial selection process to a certain extent, with the members of the provincial legislature carrying out a role equivalent to the judicial appointments panels.  I believe this avoids constitutional risks while achieving the overall objective.

 

VII. Cost of Electing Senators

There has been considerable discussion about how to elect Senators.  I want to touch upon a related issue that has come up – the cost of electing Senators.

Of course the current method of selection does not have any direct costs associated with it.  To my knowledge, no one has attempted to estimate the cost of running Senate elections.

The way I see it, you have two simple yet very unsatisfactory choices.  The first option is to say that money is no object, and that Manitobans will go to the polls whenever a vacancy occurs, in a stand-alone Senate election.  This would no doubt cost as much as a general provincial election – tens of millions of dollars each time.  That is a very expensive proposition. 

The alternative is to tie Senate elections to some other existing process.  Let’s use provincial elections for the sake of discussion.  If you go this route, you would save some money.  But you would be accepting the possibility – indeed the likelihood – that seats would remain vacant for up to five years at a time.  The result could be that we finally establish Senate elections, but at a cost of having only half a delegation in Ottawa for most of the time.  If you go with municipal elections, the time frame may be shorter, but the problem remains: long-term vacancies in a delegation of only 6 seats.  I don’t see a solution to this problem if direct election is your only option.

There is the additional dimension of determining which level of government should pay for direct elections.  Premiers of other provinces, notably Saskatchewan and Nova Scotia, have expressed their openness to the Prime Minister's proposals, but have also been quite clear that they believe the federal government should pay the cost.  The Prime Minister has not been forthcoming on this point.  With respect, this is not a trivial matter, and I believe you have to come to a conclusion as a committee as to how it can be resolved.  Without a resolution of this practical issue, your recommendations about method of selection may become somewhat academic.

I note that the indirect election I propose would avoid both of these problems.  It allows for vacancies to be filled quickly, and at no cost.  It also resolves cost disagreements between the two levels of government.

 

VIII. Myths and Misconceptions

I have had the opportunity to read some of the presentations and submissions made to this committee over the past several weeks.  I’d like to take this opportunity comment on some myths that have come up occasionally in your discussions, and the potential impact of reforms aimed at some of these incorrect impressions.

 

The “Rubber Stamp”

Many people seem to think that the Senate does very little or nothing at all, particularly in the strict legislative sense.  Even people who have some idea of the important policy development work done through committee studies seem to think that the Senate is a rubber stamp when it comes to legislation.  I want to correct that misconception.

As Frances Russell pointed out in one of her columns last month, the Fathers of Confederation were not trying to imitate the House of Lords.  Indeed, they had experimented with an elected upper chamber in the colonial context, and decided that it was not workable in the relatively new system of responsible government.  They wanted Senators to have the authority to amend and even veto, but they did not want the Senators to have the electoral incentive to do so excessively.  In the case of a Constitutional amendment, the Senate has only a six month suspensive veto. The Fathers of Confederation sought a balance, and as it turns out, that balance seems to have worked fairly well.

The truth is that the Senate amends bills with great regularity.  It is part of the usual task of an appointed “revising” chamber.  Debate in the elected House usually focuses on the one or two “hot issues” surrounding the bill.  Time is rarely taken to examine all of the aspects of a complex bill.  Indeed, even for aspects that may be controversial, scrutiny of the actual legal text is rare.  The result is that you often see bills pass that contain mistakes.  Sometimes the English and French do not correspond adequately, although the courts are obliged to interpret both versions as having full force and effect.  Sometimes there is clumsy or imprecise drafting.  And sometimes we discover that the text of the bill does not actually accomplish what the government set out to do.  Trust me, I have seen this both in opposition and in my role as House Leader trying to facilitate the passage of bills on behalf of my ministerial colleagues!  The truth is that the elected House in a bicameral system frequently overlooks a raft of legislative mistakes, and they are usually glad to have them sorted out before those mistakes are enshrined into law where they could remain for years before legislation to correct them might come along.

The Senate's amendments rarely attract media attention, simply because they are usually not controversial.  But the lack of controversy doesn't mean the amendments are unimportant.  The proof is in the statistics.  Last fiscal year, the Senate passed 50 bills. Of these bills, 10 – that is one out of 5 - were passed with amendments.  This is not unusual.  The Senate amends a lot of bills.  There is nothing extraordinary about this.  What is extraordinary is the rejection by the House of Commons of Senate amendments.  That almost never happens – perhaps a handful of occasions in the last decade. This demonstrates that the contribution of the Senate is useful.  Moreover, the legislative role of the Senate is not by definition at odds with the elected House. Indeed, it is complementary, performing a revising role that is not a duplication of the role of the elected House.  This fundamental difference in roles helps to understand the reasons for the method of selection that the Fathers of Confederation chose.

Electing Senators will certainly have an impact on the Senate's use of its absolute veto.  Bearing in mind the wisdom of the Wakeham Commission report, I would caution you to avoid establishing a method of selection that responds only to the public perception of the Senate's role.  By choosing a new method of selection, you will potentially bring about a dramatic change in the Senate's role.  There is nothing wrong with that, but you should go about it mindfully and deliberately.

Cost of the Senate

The Senate has about a third as many members as the House of Commons, but our budget is only a fifth of theirs. The Senate costs about $90 million annually, which works out to about $2.70 for each Canadian.  The House of Commons comes in at $429 million, or about $12.80 per Canadian.

The Constitution gives the Senate about twice as many members as the Manitoba Legislature, and our budget is about 2.5 times larger.  On a per capita basis, the Manitoba Legislature costs Manitobans about $30 each. 

Obviously, there are cost pressures that come to bear in a national institution the size of Canada.  For example, the majority of Senators travel to Ottawa from much greater distances than most of you travel to Winnipeg.  Our strict adherence to the federal Official Languages Act imposes certain cost implications as well.  But in all, the Senate budget compares quite favourably to other Houses.

If the Senate were to become directly elected, we can certainly expect significant pressures on the operating costs.  Senators don't currently have constituency offices and constituency staff in the way that members of the House of Commons do.  The office budgets for members of the House of Commons are roughly double the budget of a Senator's office.  MP's also receive larger office budgets if their constituencies are larger than average, to allow for more than one constituency office and the cost of travel within the constituency.  If Senators are expected to represent all of Manitoba, it would logical to assume that the office budget of an elected Senator would dwarf that of an MP, who represents only one of 14 seats in the House of Commons.

 

IX. Conclusion

There is another dimension to your task that I want to touch upon as I conclude.  As some might say, “be careful what you wish for.”  To put it another way, I would urge you to beware of unintended consequences.  When you are coming up with your recommendations, I urge you to think through the full impact they will have on our institutions – not just the Senate but also on the House of Commons, on the office of Prime Minister, on the relationship among these various institutions, and indeed on the organization and financing of political parties which are an indispensable feature of a mature parliamentary democracy.  There can be no doubt that electing Senators by direct universal suffrage will change all of these dynamics.  We cannot even imagine all of the consequences that election would entail.  I am prepared to accept that, but at the same time, we need to go into this with our eyes open.  You need to think through all the implications of the changes you will ultimately propose, and consider ways of limiting any potential negative or unintended consequences that may flow from them.

It is obvious that an elected Senate will be much more powerful and much more costly than the institution we have now. These outcomes are not necessarily undesirable, but they need to be understood, they need to be acknowledged, and the transition needs to be well managed.

I realize how difficult your task is.  Nobody ever said this would be easy.  But I have not emphasized the rule of law as a way of saying that electing Senators cannot be done.  Rather, I want to remind you of where some of the obvious pitfalls lie, so that you can avoid them.  I believe it is possible to move forward and to satisfy the difficult task you have been given without being resigned to the inevitable constitutional challenge promised by some other provincial governments as a reaction to the Prime Minister’s initiative.  I need hardly remind you of the two unanimous resolutions of the Quebec National Assembly opposing the initiative, or of the position of the Ontario government.  Despite these daunting challenges, I believe you can succeed where every other attempt since Confederation has failed.  But if you are ultimately successful, it will be because you accepted and overcame these challenges, not because you try to ignore them.

If you are to satisfy your mandate, you need to keep an open mind; you need to be creative, you need to be honest and realistic about the risks and about the consequences associated with each option open to you.  You have the difficult task of engineering a major change to the Senate without sacrificing the advantages inherent in the status quo.  I sincerely hope that you succeed.  If you do, you will be making history.

Thank you.

 

The Honourable Sharon Carstairs, P.C., Senator for Manitoba

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