By Senator Anne Cools
Oct 26, 2015

An appointed upper house was central to the Fathers’ vision: 

The Senate was to last the life of their federation. (The Confederation Fathers ) hinged the existence of our federation to that of the Senate. In short, Senate abolition means abolition of the federation. Senator Anne Cools says It is constitutionally impossible that both Houses can be founded in representation by population.

Today’s spin mastery and message management compel us to cling to the principles that define Canada and Canadians.  It’s no accident that Canada’s Constitution Acts contain no constitutional right or power whatsoever to elect senators.

One of our two agreed descriptors for the purpose of governance and law-making was John Graves Simcoe’s famous 1792 phrase “the very image and transcript of that of Great Britain.” The other was “for the peace, welfare and good government.” This is found in all our constitutions, being the 1763 Royal Proclamation; the Quebec Act, 1774; the Constitutional Act, 1791; the Act of Union, 1840; and the Constitution Act, 1867, section 91, becoming “for the Peace, Order and good Government of Canada ... .”

The term “elected Senate” is misleading and mischievous. It is enlisted by those who would cultivate in the public mind the false notion that Canadians have a birthright to elect senators, and that this non-existent right is part of our 1867 and 1982 Constitution Acts. These fundamental Acts, in all their sections, contain no constitutional right or power whatsoever to elect senators.

This was no oversight. It was the deliberate and considered action of the Confederation Fathers, forged in their collective and comprehensive knowledge of constitutional governance. Grasping the human fact called by St. Augustine the libido dominandi, the lust for power and dominion, our Fathers met in Quebec in 1864. They reached agreement, expressed as their 72 Quebec Resolutions. These were amended and perfected in the next few years.

Adopted by the U.K. Parliament, they became our Constitution Act, 1867. Seasoned in the human condition and politics, the Fathers knew that the human psyche is an artful dodger. They knew human nature and ambition in governance, and in the use of political power. They well knew the need to limit human mischief and imperfection by use of an agreed-upon constitution.

Constitutions, in their nature and purpose, are created to resist change. They constituted our Upper House, the Senate, as the house of the confederation, to embody and actualize the federation agreement. This Senate fact is evident in many ways: in its structure, mandate and powers, regional equality, its composition and membership, and its method of selecting senators for appointment by Commission and Letters Patent under the Great Seal, with estate for life in the office, called life tenure. The Fathers were attentive to the condition of the smaller and less populous provinces. They created the Senate in well-established, studied, and hard-fought and -won constitutional principles.

Aware of the profound differences their agreement had settled, they cast their remarkable achievement in stone. The Senate was to last the life of their federation. They hinged the existence of our federation to that of the Senate.

In short, Senate abolition means abolition of the federation. The Fathers intended that the Senate would actualize the federation, the very union of their provinces, and that the Senate would be the federation’s stronghold. For these reasons, the Senate was constituted in representation by region, with equal numbers of senators for the regions. This was distinct from the House of Commons, constituted in representation by population.

The telling fact was that for political and constitutional continuity, Canada’s first senators, 72 in all, were selected from among the legislative councillors of the four uniting provinces. Queen Victoria inserted these selected senators’ names in her May 22 Proclamation For Uniting the Provinces of Canada, Nova Scotia, and New Brunswick into One Dominion. This was decreed in the BNA Act, 1867, section 25. This all explains why Senate abolition would require unanimous agreement of all of Canada’s 10 provinces, large and small.

In sharp contrast, our representation by population House of Commons was constituted as the lower house of a unitary state, like the U.K. Canadians’ constitutional right to elect members to the Commons House is decreed in the Constitution Act, 1867, section 41, and the Constitution Act, 1982, section 3. It says: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

Canadians’ federal voting rights are limited to our Commons House elections.

Unlike the Senate, the Commons’ representation by population was born in the electoral franchise, or electoral suffrage; much later, this became universal suffrage, meaning one Canadian adult, one vote.

With the franchise grew the high principle no taxation without representation. These were the building blocks of the Commons House. Its fortification was the national finance, known constitutionally as the power of the control of the public purse in taxation and public expenditure. For centuries, the electoral franchise had been tied to property because its owners were the taxpayers. Likewise, the qualifications to seek election to the Commons House were property-based. These electoral privileges were annexed to property ownership, but were distinct from it.

Jowitt’s Dictionary of Law Vol 1, at page 831, defines the franchise at common law thus:

“In ancient times, among other franchises usually granted by the Crown to a new borough on its incorporation, was the right of sending burgesses to Parliament; and hence franchise came to mean the right to elect members of Parliament, whether in boroughs or counties.”

By the 1920 Dominion Elections Act, our voting privileges were changed from a privilege in rem, meaning in the thing, property, to a privilege, in personam, meaning in the individual Canadian.

In 1960, with enfranchisement of our First Nations people, Canada achieved full universal suffrage. The history of representation, the electoral franchise, and legislative Canadian assemblies and the Commons House is long, complex and hard-fought. But like all representative assemblies, it is the story of the Sovereign-citizen bond, with its mutual duties and responsibilities.

It is the story of how, by election processes, our citizens-electorate are at the heart of governance. It is the story of ministerial responsible government, by which the Sovereign Monarch selects her government ministers, largely from those elected to the House of Commons, and from the Senate, who are responsible to the Houses, and must hold the Houses’ confidence or resign. It is the story of Canada and its enduring Constitution, now almost 150 years old.

The challenge for the wouldbe constitutional amenders is to bring proposals capable of receiving broad and sustained agreement, and that can last another 150 years. Canadians, long habituated to enduring stable governance, will accept no less.

It is constitutionally impossible that both Houses can be founded in representation by population, a power that solely belongs to the Commons. These are the Houses the Fathers built.

 Anne Cools is the longest-serving member of the Canadian Senate. She sits as an independent.