To simplify our discussion of electoral systems, we present six general electoral systems that have been considered at different times for the Canadian Senate.10

Single-member plurality

In these elections, candidates compete in single-mem- ber constituencies, and the representative elected is the person who receives the most votes (not necessari- ly a majority of the votes cast, simply more than the next candidate). Plurality is a “winner-take-all” sys- tem (also known as “first-past-the-post”), so in a race between three equally popular candidates, for exam- ple, a candidate can win with as little as 33.4 percent of the popular vote. Because of the uneven distribu- tion of votes across ridings, this will occasionally result in a party winning a majority of seats in a leg- islature with less than a majority of votes, or perhaps even a smaller percentage of votes than another party. However, the exaggerated parliamentary majorities, it is argued with respect to lower chambers in a parlia- mentary system, are a worthwhile feature because the system delivers clear mandates to govern and suffi- cient majorities to implement a legislative program. There is no ignoring the fact that this system is designed to disenfranchise smaller parties, and the parties that are most adversely affected are the ones whose support is not concentrated regionally.

Multi-member plurality

Elections under this system use larger constituencies and elect several representatives for each constituen- cy by plurality, the same principle as in single-mem- ber plurality. If a constituency is to be represented by three members, then the candidates who came first, second and third are elected. Large multi-member constituencies operating under plurality will tend to elect most or all of their representatives from the same political party. Since these are larger ridings with multiple representatives, the connection between the voter and the representatives, it is argued, is weaker and the influence of the party greater (Madison [1787], in Rossiter 1961; Silva 1964).

Single-member majority

Here the winner must receive a majority — 50 percent plus one vote. This usually requires either multiple-round voting or the use of the alternative-vote system. In the former case, the usual practice is to hold two rounds of voting, with the second round (a runoff) restricted to the top two candidates. With the alternative vote, the vot- ers rank candidates in order of preference on a single bal- lot. If no candidate gets a majority of first preferences, the candidates who received the fewest votes are eliminated one by one, and their votes are transferred according to voters’ second preferences (and so on) until one candidate achieves a majority. It is claimed that runoff elections consolidate support behind the successful candidate and encourage coalition building and cross-party alliances in the final stages of the campaign, whereas the alternative vote simply translates a small lead into a more decisive majority of seats by discriminating against those at the bottom of the poll (Norris 1997, 302).

Multi-member majority

Several representatives are elected by majority in each constitutency. Presumably a single ballot using the alternative vote could be fashioned, though as yet no country has done so. Instead, two-round voting is the norm. Either voters choose from party lists, so that the two parties that received the most votes in the first round compete in the second (with the winning list gaining every seat in the constituency); or they elect individual candidates with an absolute majority in the first round, and further candidates who get a plurality in the second, if a second vote is needed. Obviously the use of party lists gives the party great influence over the candidates, though it will also often lead to diverse representation as parties try to balance their lists along gender, racial-ethnic, linguistic and regional lines.

Proportional representation

Under proportional representation (PR), voters choose between lists of candidates offered by political parties and the seats are distributed among the parties according to their proportion of the vote. So if a party receives one- third of the vote, it receives one-third of the seats in the chamber. Minimum thresholds are often used to limit the number of smaller parties represented in a legislature, and several alternative formulas can be used to calculate proportionality. When a “closed” list is used, votes are cast for a party, and the candidates who take the seats on behalf of that party are the ones with the highest priority as determined by the party. With an “open” list, voters can express a preference for a particular candidate within the party list. Proportional representation is usually cred- ited with ensuring that a larger number of smaller parties are represented in a legislature, a feature that is usually described in democratic terms as ensuring that “every vote counts.” Multi-member constituencies are a neces- sary condition in a proportional representation system. While closed lists provide political parties greater con- trol over their candidates than open votes, they usually result in greater diversity in representation. For exam- ple, it is well chronicled that the list system of PR facil- itates female candidates’ entry into politics, because parties strive for gender balance on their lists (Rule 1992; Rule and Norris 1992; Welch and Studlar 1990).

Single transferable voting

This is a variation on proportional representation which can best be described as “personal PR.” In this system voters are not confined to a party’s list but rather rank the candidates and candidates must receive votes beyond a specific quota to win. Voters’ ballots are reallocated to their next preferences when there are excess votes for an elected candidate or when their first candidate is eliminated. Choices from among can- didates of one particular party are possible, but the ballot design can make partisan predispositions less central. This system is also claimed to induce candi- dates to develop personal positions on the issues, though it may equally result in candidates from the same party regularly competing against each other, undermining party cohesion in the process (Katz 1980).

Clearly the choice of a system can lead to dramatic differences in electoral outcomes. However, there is no “best” or “better” system, since the relative merits of any one dimension of a system are so closely tied to competing beliefs about what should be the core principles of a representative democracy.

The question for any polity in considering which sys- tem to adopt therefore needs to be, What democratic principles are most desirable? Political equality, repre- sentation of diverse viewpoints, accountability, clear choices in policy, governability, party system stability and the ability for the system to handle social conflict are all relevant and sometimes conflicting considera- tions. At the simplest level, selecting an electoral system is about choosing between efficient and effective versus responsive and accountable government, and about how important it is to be fair to minor parties (and the voters who support their policies) (Norris 1997).

Finally, of course, for political parties, choosing a system is about setting the rules of the game. Any rule is bound to advantage some parties over others.

As table 2 shows, each of the six systems has been adopted for directly electing an upper chamber in at least one country, and many countries have created unique variations. In Bolivia, for example, multi- member plurality is used but one seat is given to the second-place party to ensure diversity of representa- tion in the chamber.

The only obvious patterns that seem to emerge are that the majority of second chambers hold their elec- tions at the same time as the lower-chamber elec- tions, and that most have the same political parties responsible for the nomination process in both cham- bers. Additionally, most of the countries that hold their elections concurrently with the lower-chamber vote stagger the terms for their senators, so that only part of the chamber is elected at any one time.

The Australian experience

The comparative analysis does not point to any emer- gent trends that would commend one system over another, but the lessons from other countries can be informative on how dual elected chambers might operate in Canada. From this perspective, Australia is perhaps the most useful example, as it shares several features that are relevant to Canada. It uses the Westminster model of responsible parliamentary gov- ernment and it is also a federation. Of course, the important difference is that it uses the proportional representation system of single transferable voting for its upper chamber.

There are also many differences that make Australia distinct from Canada, including the fact that it is less culturally and regionally divided, has a lower chamber elected by the alternative vote, has state legislatures that are also bicameral (with one exception) and has a history of state political parties being central to the nomination process for candi- dates to the Senate. So Smiley’s admonition that cau- tion must be exercised when drawing lessons from this island continent should be kept in mind (1985).

Australia has six states, which are represented in the Senate by 12 senators each, and two territories, which are represented by 2 senators each, for a total of 76 members (the numbers are based on a constitutional requirement that the Senate be half the size of the lower chamber, the House of Representatives). The senators for the territories stand for election every three years along with half of the senators from the states, and this elec- tion is held at the same time as election for all members of the lower chamber. (The leader of the party that wins the largest number of seats in the lower chamber is enti- tled to form a government, as in Canada.)

When Australia was created as a federation, in 1901, the Senate was elected using the plurality system. Between 1918 and 1949, Australian senators were elected by the alternative vote (see Sharman 2008). Both systems resulted in the government winning a majority in both the upper and lower chambers. Since 1949, the Senate has been elected using single transferable voting, which has resulted in an increase in the number of parties elected and in none of these parties (usually) obtaining a majority in the upper chamber.

To understand the dynamics of representation in the Senate in Australia, one must also understand the dynamics of elections to the lower house. Two centre-right parties, the Liberal Party and the National Party, have a perma- nent coalition and have proven effective in working together to use the alternative vote system of the House of Representatives to win majorities. The coalition part- ners make strategic moves to ensure they win the most seats, including making recommendations to supporters on how to mark their ballots. This strategic approach, combined with the alternative vote system, has resulted in smaller parties finding themselves largely excluded from winning seats in the lower chamber. They have responded by focusing their resources on the upper chamber.

As table 3 illustrates, the distribution of seats since the election of 197411 has resulted in clear majorities in the House of Representatives for either the Liberal/National coalition or the Labour Party. Yet in the Senate chamber, with the exception of three parliaments, the governing party has not had a majority. Additionally, the number of minority parties represented in the Senate has increased, particularly since the mid-1980s.12

Not surprisingly, the literature on bicameralism in Australia tends to follow the trend noted by Tsebelis and Money for federal countries (1997), in that it focuses on conflict and power distribution between the two chambers. Added to this is a normative thread about responsible parliamentary government under the Westminster model. The conclusion is invariably that the country is under constant threat of political gridlock, endless bargaining and trade- offs (see, for example, Jackson 1995).

These concerns over the governing party’s failure to control the Senate are not universal. Uhr, for example, argues that having a second chamber with no clear majority is a useful check in keeping with the federal principle of divided government and gives voters the opportunity to split the ticket, placing different parties in control of different political institutions. Just as gov- ernments claim that elections provide them with a man- date to govern, the smaller parties in the Senate equally claim a mandate to keep the government accountable or, as the Australian Democrats’ Senate election slogan put it, to “keep the bastards honest” (Uhr 1999, 98).

The Harper Government’s Senate Reform Proposals

The Harper government’s initiatives were just the latest in a long line of proposals to “reform” the Canadian Senate. Dozens of Royal Commissions, parliamentary hearings and governmental and non- governmental bodies have proposed wholesale changes, with most since the 1990s recommending direct election (see Stilborn 2003 for a review of the key proposals, including their suggestions for possible electoral mechanisms). Among these, the Canada West Foundation’s is particularly relevant, as it directly informs the Harper government’s own proposals (see McCormick, Manning and Gibson 1981).

There has been surprisingly little academic research on the Canadian Senate, giving this chamber the dubious distinction of being “both the most written about and the least studied of Canadian political institutions” (Franks 1999, 121). Similar to the scholarship in other countries that have weak or unelected senates, research has been almost singularly focused on the roles and functions that the Senate actually performs (MacKay 1963; Kunz 1965; Forsey 1982; Joyal 2003). Attention has been given to the inherent problems due to its unelected and affluent membership (Campbell 1978), or to revisiting what the country’s founders intended (Ajzenstat 2003), with a crit- ical eye toward modest improvements that maintain the body’s historic strengths (Forsey 1984; Mallory 1984; Franks 1987; Smith 2003).

The current Canadian Senate

The Canadian Senate has remained virtually unchanged from the configuration agreed to by the Fathers of Confederation in 1867. It is an appointed chamber with senators chosen to represent one of the provinces or territories of Canada, as illustrated in table 4. The number of seats is apportioned not equally by province but rather on the principle that four distinct geographic regions of Canada should be equally represented: 24 seats each are allocated to the Maritimes, Quebec, Ontario and the West.13 Newfoundland and Labrador and the three territories are not counted in these four regions.14

Senators are summoned by the governor general, though appointments are made solely upon the deci- sion of the prime minister. The appointment is until age 75.15 The powers of the current Senate are essen- tially identical to those of the House of Commons, although because it is a non-elected body, these pow- ers are rarely exercised to their full potential.

The qualifications for appointment, which were clearly a more significant issue at the time of Confederation, are that a person be at least 30 years of age, be a Canadian citizen and have at least $4,000 of property in the province for which he or she is being appointed (the person also must have a net worth of $4,000). In the case of Quebec, the property must be in a specific division within the province to ensure the representation of the various sectional interests — lin- guistic, cultural and religious — within this province. In practice, prime ministers also appoint senators to repre- sent minority community interests in other provinces.

The only constitutional limits on the Senate’s pow- ers are that money bills must originate in the Commons and must come from the cabinet, which controls the “royal recommendation” necessary for the introduction of such legislation. The Senate may not amend these money bills to increase taxes, duties or public expenditures (though it may decrease them). And the Senate may only delay for 180 days constitu- tional amendments that have received the concurrence of the provinces and of the House of Commons.

The constitutional amending formula is central to the debate over reform of the Senate; the formulas are set forth in part V (sections 38-49) of the Constitution Act, 1982. The “general amending formula,” requiring the agreement of seven provinces representing 50 percent of the population, governs, among other things, the “powers of the Senate and the method of selecting Senators” and “the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators” (section 42).

In 1996, following a referendum in Quebec on inde- pendence, Parliament adopted An Act Respecting Constitutional Amendments, which prevents the federal government from placing any constitutional amendment under the 7/50 formula before Parliament unless the pro- posed amendment has been approved by the provincial legislatures representing the majority of the population in each of five regions of Canada.16 This gives British Columbia, Ontario and Quebec complete vetoes over con- stitutional changes in this class (and makes the legisla- tures of Nova Scotia and Alberta central to passage in their two regions). And two provinces (Alberta and British Columbia) have adopted legislation requiring that a referendum be held before legislative concurrence is given to any proposed constitutional amendment.

The most onerous amending formula is one that requires passage by all of the provincial legislatures, and this level of unanimity would likely be required to abolish the Senate (though this is not expressly stated). The least onerous amending formula requires only passage through Parliament (in this instance the Senate must agree and cannot have its vote overridden in 180 days) and includes matters “in relation to the executive government of Canada or the Senate and the House of Commons” (sec- tion 44). The fourth amending formula pertains to matters that affect only one or more provinces, but not all; these amendments would require only passage through Parliament (which includes the Senate) and the provincial legislature(s) in question. But the only matter concerning the Senate that could be construed as not affecting all provinces would be the requirement that Quebec senators’ property be held in a specific electoral division.

Another limitation on reform is the Supreme Court of Canada’s 1980 decision in a reference over the federal government’s desire to alter the upper house unilaterally, which is likely to have relevance.17 In this ruling the high court denied Parliament the right to make changes that might alter the “fundamental character” of the Senate; it defined the Senate as a “chamber of sober second thought,” which is a central consideration with respect to the length of senators’ terms; and it said the Senate’s representational structure was reflective of the Canadian federation. It was the Court’s opinion that for the gov- ernment to alter either of these principles, the provinces would need to agree.

The Harper government’s proposal

As already noted, the Harper government’s approach was unique in both proposing a mechanism for elec- tion and trying to make these changes without involving the provinces in a constitutional amend- ment. We turn now to the two bills that were before Parliament at the time of the 2008 election call.

The Senate Tenure Bill was itself a constitutional amendment that would have limited Senate tenure to an eight-year, nonrenewable term. The argument that Parliament has the authority to enact this constitu- tional amendment on its own, without the provinces, was based on the government’s claim that an eight- year term is sufficient to provide the experience and institutional memory necessary for this chamber to continue to exercise its review function as a chamber of sober second thought and to ensure regional, provincial and sectional representation.18

This bill was grandfathered so vacancies would arise as current senators reached age 75. As of September 2008 (table 4), there were 16 vacancies in the Senate; the total would go up to 29 by the end of 2009 and to 57 just five years later. Of course, any deaths or resignations could increase the total.19 It is worth noting that as part of the government’s demo- cratic reform agenda, Parliament has already adopted legislation to fix the date for House of Commons elec- tions. Had an election not been triggered early by Stephen Harper’s request on September 7, 2008, the Governor General dissolve Parliament, the next gener- al election would have been held on October 19, 2009. All future elections were to be held on the third Monday in October four calendar years after this one (although elections could be triggered earlier by a vote of nonconfidence by the House of Commons or by the dissolution of Parliament by the governor general). If both bills concerning the Senate had been adopted by Parliament before an election call in 2009, Canadians would have been voting in the 2009 general election to elect one-quarter of the Senate. Based on the dates contained in these pieces of legislation, it would appear that the intention is to make Senate elections coincide with Commons elections – with the entire House of Commons standing for election every four years and the Senate elections staggered, so half the seats are up for election in each general election. This is the approach to bicameralism that is employed in a number of countries, and it is the principle underlying the US Congress, though only one-third of their Senate is elected at every election for the House of Representatives. If these pieces of legislation are adopted during this coming Parliament, it is still pos- sible that as much as half of the Canadian Senate could be elected following the next federal election.

The Senate Appointment Consultations Act was the legislation that would have allowed the federal gov- ernment to conduct an election in any province or territory to canvass Canadians on who should fill Senate vacancies. The “consultative” elections would have been called by the federal government at the dis- cretion of cabinet and, in support of the government’s constitutionality claim, there was a great deal of flexi- bility as to when elections would be called.20 The gov- ernment would not have been obliged to fill every vacancy at the same time or within a set period of time, and it could even have held elections for posi- tions that were not yet vacant. Elections could have been held simultaneously with either a federal general election or a provincial general election, though six months notice would be required to hold a Senate consultative election during a provincial election.21

Elections would have been province-wide. The win- ners of these elections would have had their names submitted by the prime minister to the governor gen- eral for summons to the Senate to fill vacancies.

The constitutional requirements would still have applied, so that in addition to being 30 years of age and a Canadian citizen, a candidate would have had to acquire at least $4,000 of property in the province (or, in the case of Quebec, in one of the 24 divisions within the province) where there was a vacancy, clear of debt, before he or she could be appointed.

Candidates could have been endorsed by political parties but could not have received funds from parties by which to mount their campaigns; however, political parties would have been allowed to share office accommodation and provide professional services and lists of members and contributors to a nominee. Senate candidates would have been restricted to raising money through indexed $1,000 donations from indi- viduals and would have been allowed to give no more than twice that amount to their own campaigns. Third- party advertising, including any political party spend- ing, would have been capped at $3,000 per nominee to a maximum per province based on that province’s por- tion of a Canada-wide limit of $150,000. These were the same donation limits used for elections to the House of Commons, but in Commons elections these restrictions are tied to the public funding of candi- dates’ campaigns.22 Another contrast with Commons elections was that there would have been no spending limits for Senate candidates themselves.

A number of other administrative measures in the legislation mirrored clauses in the Canada Elections Act (the law that governs House of Commons elections), such as financial auditing, retention of documents, forms and notices, qualifications to vote, candidate access to buildings to campaign and place posters, and distribution of surveys.

The electoral system to be used for Senate elections under the Senate Appointment Consultations Act was to have been single transferable voting (STV).23 In STV, as described above, voters are asked to rank candidates in their order of preference by numbering the candi- dates on the ballot. The normal practice with ballots is to list the names in alphabetical order, with party affili- ation shown for those candidates who have won a reg- istered party’s nomination. To avoid the possibility that a person might gain an advantage simply by having their name listed first, the first name on the ballot is varied from one voting area to another. The ballots are then counted in a way that aims to ensure, first, that the candidates with the highest combined preferences are elected and, second, that there is diversity in repre- sentation. Candidates who obtain a certain quota of the votes (based on the votes cast and the number of posi- tions being contested) are elected.

Table 5 uses data from the 2006 federal general elec- tion to illustrate the sort of spending and the number of votes that might be involved in a Senate election in each of the provinces. The spending figures are simply the provinces-wide candidate spending limits set for House of Commons elections (notwithstanding the differences in rules for Senate and Commons elections outlined above). According to the government, the decision to set no spending limits for Senate candidates was in recognition of the high costs of running province-wide elections and of the $1,000 limit for private donations (Legislative Committee on Bill C-20 2008a, 1610). However, unlike candidates for the House of Commons, Senate candidates could have raised money in advance of the election being called.

As noted, a quota based on the number of ballots cast and the number of seats available determines the number of votes a candidate must receive in order to be elected under STV. As is evident from table 5, the number of votes needed would be lower when more Senate seats are being contested in a province at one time. For example, to fill the two Senate vacancies that currently exist in Ontario, the successful candidates would each need to receive over 1.8 million votes, and each would be allowed to spend in the neighbourhood of $8 million to campaign across this large province. However, if there were 12 positions being contested in Ontario, each can- didate would need only 435,000 votes to win, and pre- sumably the necessary expenditure would be less. (Campaign spending, however, would be entirely dependent on the scale of campaign a candidate wished to mount, because the size of the province does not change according to the number of seats being contest- ed.) The large amount of money that could be involved in Senate elections is a practical consideration that has not been widely discussed.

Practical implications

The question of numbers is central to understanding how this electoral system would work in Canada. The number of Senate seats constitutionally guaranteed ranges from the high of Ontario’s and Quebec’s 24 seats to the low of PEI’s 4 and the territories’ 1 each. Most provinces have 6 (the 4 western provinces and Newfoundland and Labrador) or 10 (New Brunswick and Nova Scotia). Under the Senate Appointment Consultations Act, the assumption was that roughly half the Senate seats would be up for election every four years. Therefore, STV could be expected to operate differently in different provinces.

To get a relatively proportional result, the ideal num- ber of seats that should be contested in a single election using STV is five, according to Taagepera and Shugart (1989, 23). Most provinces would be electing three to five senators at a time, which would ensure some degree of proportionality. However, in the small provinces and the territories and in the first few Senate elections (see table 4), only one or two Senate spots would be open for election, which means that the system would function more like the alternative vote, used in single-member constituencies. In the two largest provinces, there would be 12 seats available if half were elected each time, which would challenge the capacity of voters to identify with a sufficient number of individual candidates. (A solution in these two provinces would be to divide them specifically for the purposes of the Senate into three or four separate electoral divisions; see Hicks 2007.)

The arguments in favour of the STV system are made by McCormick, Manning and Gibson (1981), who suggest that the central criterion governing choices among possible electoral systems should be the extent to which a system contributes to the role of senators as members of a chamber devoted to regional representation. From that perspective, sys- tems emphasizing the role of political candidates as party representatives should be avoided at all cost. Further, the single transferable vote is advocated on the grounds that it permits voters to choose their rep- resentatives on the basis of individual characteristics.

This idea of regional voices is the reason that some Senate reform models (including Triple-E) recom- mend that Senate elections be held only concurrently with provincial elections. The Harper government stated that it would hold most elections in connection with federal general elections, though the Bill gave the prime minister the flexibility of both options (Legislative Committee on Bill C-20 2008a, 1535).

The experience of federal elections in Canada sug- gests that regionalism would manifest itself in an elected Senate regardless of the timing of elections, particularly under the STV system. In the House of Commons, the Bloc Québécois and the Reform Party, and before them Social Credit, have all been able to sustain themselves as strong regional parties under the single-member plurality system. STV is even more responsive to these regional forms of political action. The primary impact of election timing might be on the issues that have saliency: holding Senate elec- tions concurrently with provincial elections might mean senators would be elected at a time when vot- ers are focused on provincial election issues.

In the case of Quebec and Ontario, where 12 Senate seats would probably be contested at once, partisan loyalties might become more central to deci- sion-making, as it would be harder for voters to dis- tinguish among the many candidates. However, the Harper government departed from the Australian approach of offering voters a ballot choice among political parties, rather than ranking candidates directly. The proposed Canadian system would have reduced, though not eliminated, the use of party affil- iation as a shortcut.

The other departures from Australia’s STV system for Senate elections were the financial restrictions and the limits on party involvement in the campaigns of party candidates. The cost of a Senate campaign in Canada would run to hundreds of thousands and even millions of dollars (see table 5), yet because of the $1,000 donation limit, only those who have some capacity or machinery to raise a large number of donations could run. This suggests that the successful candidates under STV would be those with wide per- sonal appeal or an appeal to a particular, albeit size- able, segment of the province’s population.

Certainly, a Senate elected under the system advo- cated by the Harper government would be a chamber that is diverse in membership in terms of political parties represented. It would be very difficult for any one party to have a majority in this second chamber.

Constitutional implications

As the Supreme Court has said, “The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exer- cise of constitutional authority…including the princi- ples of federalism, democracy, constitutionalism and the rule of law, and respect for minorities.”24 So, not surprisingly, the House of Commons and Senate com- mittees that were asked to examine the two Senate reform bills during the last Parliament spent time on the question of constitutionality — or, more accurate- ly, on the question of which of the four amending for- mulas outlined above, if any, apply to the bills.

As noted, the government’s position was that the Senate Tenure Bill fell under section 44 of the Constitution Act, 1982, and that only the approval of Parliament was necessary to make this constitutional change; and that as the Senate Appointment Consultations Act did not alter the method of appoint- ment, but only permitted consultation in advance of that appointment, it was not a constitutional change at all.

This position is not universally supported. For example, Desserud (2008) makes the case that it is the general amending formula, and not section 44, that is the default mechanism for constitutional amend- ments. Although section 44 replaced section 91(1) of the old Constitution Act, 1867, and section 91(1) was the clause by which a previous change to tenure (in 1965, reducing appointment from life to age 75) was made, the new section is more restricted, coming as it does in the context of a comprehensive set of amend- ing formulas and after the Supreme Court’s 1980 deci- sion in Re: Upper House.25 It is his position that a change to the tenure of senators therefore requires the support of two-thirds of the provinces (Desserud 2008).

Heard makes a similar case with respect to the Senate Appointment Consultations Act, accusing the government of trying to do indirectly what it could not do directly. He is unconvinced by the flexibility accorded the prime minis- ter to ignore the outcome of consultative elections, noting that a referendum on Quebec independence is equally con- sultative and non-binding, and yet even the Supreme Court has acknowledged that it is now of such weight as to be an obligation on governments stemming from the dem- ocratic principle of Canada’s Constitution (Heard 2008).

Of course, there is no democratic principle that under- lies the Canadian Senate as it now stands — in fact, quite the opposite. Even in advance of the Confederation meetings, the delegates from Canada had agreed to a compromise Parliament hinged on the second chamber: they had experience with an elected second chamber and specifically opted for an unelected body so as to meet French-Canadian representational demands while at the same time ensuring that the House of Commons and the government would not be unduly restrained when it came to routine legislation (Moore 1997).

It is well established in both the comparative and the domestic literature that second chambers that are unelected do not have the legitimacy to exercise a leg- islative veto in the same way that elected chambers do. The very act of election would have a transformative effect on the chamber’s legitimacy and thus its powers.

While the introduction of one or two elected senators might not alter the institution fundamentally or irre- versibly, if the proposed reforms had passed, there would have been a critical mass of elected senators that would have transformed this chamber. As table 4 shows, there are currently 16 vacancies; by next year one- quarter of the Senate seats could have been up for elec- tion and by 2014 over half. It is reasonable to expect that at some point there would have been enough elect- ed senators to encourage the Senate to routinely oppose the government and the House of Commons; to create a constitutional convention that all future appointments to the Senate have to be made by election; and to put pressure on the remaining appointed senators to vacate their seats in favour of directly elected representatives.26

Quebec poses an additional constitutional challenge. The property qualifications for Quebec senators were designed to ensure that particular sectional interests within the province were represented, as well as to keep Quebec in balance with the other regions. This is a question of minority representation. Specifically, the 24 Senate divisions for Quebec ensure that senators who represent anglophone, Protestant and, more recently, other minority interests within that province are pres- ent in the Senate alongside the francophone-Catholic majority. Bonenfant has suggested that the founders of Canada also believed that the separate divisions for Quebec would ensure a greater independence of fran- cophone senators from the government (1966). While election through STV would not substantively alter the independence of Quebec senators, this electoral mecha- nism would eliminate the ethno-linguistic minority dimension of this province’s representation.

The same would likely be true for New Brunswick. While there are no property residency requirements to ensure both French and English senators are appointed to the Senate from this province, it has been the practice to respect this linguistic division. STV might continue to deliver duality among New Brunswick senators, given each community’s size and localized nature, but this would by no means be assured. Proportional representa- tion is designed to ensure diversity in political, not cul- tural, representation within a legislature.

It is therefore clear that the proposed changes, even though they were billed as modest, temporary and limited, had constitutional consequences. They would have fundamentally altered the second cham- ber of Parliament and would have had an impact on the principles of federalism, democracy and minority representation. Additionally, they would have altered the balance between the two legislative chambers. In short, they would have resulted in structural change.

Conclusion

The current Senate and several provinces, most notably Quebec, objected to the federal govern- ment proceeding with its reform legislation without first obtaining a ruling from the Supreme Court on whether it was constitutional. Quebec even threatened to go to the Quebec Court of Appeal on its own. A central issue for the Supreme Court’s consid- eration, if this or a similar initiative should be attempted in the next or future parliaments, would be in part whether these changes structurally alter the Senate, which the Court has previously found to be a fundamental aspect of the federal union.

Looked at in comparative perspective, the question of whether structural change can be achieved through electoral rules would point to a resounding yes. Elected upper chambers have the legitimacy to use their full range of constitutional powers. The more difference there is between the electoral mechanisms used in the upper and lower chambers, the more the upper chamber would be able to claim to represent a different dimension of society and therefore the more legitimacy it would enjoy. A chamber elected by the citizens, even through consultative elections, would have a different representational role than the one the Canadian Senate currently is predicated upon — shifting representation from community and minority interests toward political and issue interests.

The Australian experience in particular shows that an upper chamber elected using single transferable voting will return a number of smaller parties to the chamber. The current Canadian Senate numbers mean that STV would operate differently in each province; this outcome, combined with the financial restrictions and ballot design that are distinct from Australia’s, means that the Canadian Senate would be likely to be even more diverse than Australia’s. Also unique was the plan to hold some or all elections in connection with provincial elections, a feature that would intro- duce a random element into the equation. The fact that the Canadian House of Commons is itself a cham- ber that regularly elects a number of political parties and has not in recent years delivered a decisive majority to a government adds a layer.

That being said, comparative examination also shows that it is common for elected chambers to have coequal powers, that the usual representation config- uration for federal countries is to have the upper chamber based on the formal geographic administra- tive units (though not necessarily based on an equal distribution of seats), and that using a different sys- tem of election can strengthen the upper chamber’s capacity to represent different interests and perform legislative review. Looked at from this perspective, the specific structural changes advocated by the Harper government were defensible in light of other countries’ experience. But they are structural changes and should be identified and debated as such.

Therefore it is up to Canadians to consider the normative questions of what role they wish for their upper chamber, and what electoral system best repre- sents their core values. The answers to these ques- tions can be found only in an open and informed deliberation.

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