In 1971, Liberal Senator David Croll chaired a Senate Committee on Poverty that made waves we can still feel today.

Croll’s passionate and powerful report — it said famously that “the poor do not choose poverty” –moved the Trudeau government to triple the family allowances and bring in the Child Tax Credit.

Senator Croll had been the Mayor of Windsor, Ontario, and, for a number of years following World War Two, the only Liberal Member of Parliament from what was then “Tory Toronto.”

Croll was also a Jew and Prime Minister Louis St. Laurent apparently believed that the prevailing anti-Semitism of the time would make it hard to name a Jew to the Cabinet. Instead he put Croll in the Senate, where the former mayor did sterling, non-partisan work.

In the current Senate, Nova Scotian Kelvin Ogilvie, a noted chemist, is chairing a study of the question of pharmaceutical drug trials in Canada. Ogilvie was a rare appointment by Stephen Harper. Unlike too many Harper Senators, Ogilvie says he is not a down-the-line Conservative partisan.

In his previous life, Ogilvie invented a life-saving anti-herpes drug. And as did Senator Croll, Senator Ogilvie puts his expertise and experience to work on matters that are beyond the hurly-burly of politics.

Both Senators prove that the Senate can do good work.

Senate’s fundamental flaw: its design

 Croll and Ogilvie, and others like them, prodded the Senate to be less the chamber of “sober second thought” and more the house of “innovative and brave forethought.”

There are other Senators, past and present, who have done, or do, honest and good work, and for whom the Senate is not merely a convenient perch from which they can carry on their private business affairs or exclusively partisan activities.

Grattan O’Leary, Michael Kirby, Florence Bird, Hugh Segal, Eugene Forsey, Sharon Carstairs and Thérèse Casgrain all come to mind in that category.

But for Canada, as a federal democracy, there is something fundamentally dysfunctional in the very design of the Senate. 

We think of Canada as a new country, born, as it were, a mere 145 years ago, as opposed to the old countries of Europe, such as Britain and France.

But as a federation — a country with more than one constitutionally and democratically legitimate “order” of government — Canada is one of the oldest.

In 1867 there were only two other democratic federal countries, the United States and Switzerland. Both had bicameral federal legislatures in which the upper house — the Senate — was designed to represent the interests of the states or (in Switzerland) the cantons.

In the United States, Senators were elected by the state legislatures not the people until 1913, when the constitution was amended to provide for popular elections.

More recent federal constitutions have all followed some version of this model.

In Germany the upper house is the Bundesrat, whose members are selected by the “Land” (state) governments.

India has its Rajya Sabha (House of States) most of whose members are elected by the state legislatures.

The large Latin American federations, such as Brazil and Mexico, have popularly elected Senates, serving for fixed terms, more or less on the USA model.

Enamoured with the Lords 

When those fathers of Confederation designed the Canadian system they could have created a Senate as an institution of federalism, a legislative body that would act as an interface between the provinces and the federal government.

But those Victorian fathers had something else in mind.

While they were designing a federal system, with constitutionally divided sovereignty, they also wanted to reproduce the institutions of the mother country, Great Britain.

Britain was not then a federation (though with the devolution of powers to Scotland, Wales and Northern Ireland it has become more like one recently) but it did have an upper house, the House of Lords.

Although the power of the purse — the keystone of political power — had resided in the House of Commons since 1688, the Lords continued to represent the deeply embedded notion of inherited class and privilege. It is a notion that still holds fascination for a great many. The rapt and devoted audiences for “Downton Abbey” attest to that.

Canada’s fathers wanted their own version of the Lords and thought that objective much more important that designing an institution that would help weave together federal and provincial interests. 

That’s why they designed a body to be appointed by the Governor-in-Council, with no participation of provincial legislatures or the citizens, and added that members of the upper house must be part of the propertied class. 

The 1867 British North America Act requires that Senators must own at least $4,000 worth of property in the provinces they notionally represent, and must have a net worth, in addition, of $4,000, less any debts.

That does not sound like a lot of money now — way less than a single Justin Trudeau speaker’s fee — but it was a princely sum 145 years ago.

As for rules governing the conduct of Senators, and the possibility of removing them from office — the BNA Act says a Senator may be removed if “he is attainted of Treason or convicted of Felony or of any infamous Crime.” 

In other words, not every criminal conviction will get you kicked out — only the most egregious.

But on another matter — related to property and a Senator’s status as a member of the monied class — the rules are much less clement.

The BNA Act provides that Senator will be summarily shown the door “if he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter…”

That tells a good part of the story.

Other proposals for a democratic, federal Senate 

 The Senate is quite clearly not a place for folks who have trouble meeting their mortgage payments.

The Canadian upper house, rather, is this country’s almost pitiful effort at creating an ersatz aristocracy.

And who needs ersatz anything — let along ersatz aristocrats?

In 1980, during the run-up to the first Quebec sovereignty referendum, then-Quebec Liberal Leader Claude Ryan issued his own program for constitutional reform. He called it the Beige Paper.

One of the Beige Paper’s proposals was to replace the Senate with what it called a “House of the Provinces.” 

That idea went over, for the most part, like a lead balloon.

Prime Minister Trudeau did not evince the slightest interest in it, and when, post referendum, he proposed his own constitutional reform (which included a Charter of Rights and a new amending formula) the Senate was conspicuously absent. 

The Reform Party, which brought Stephen Harper to Parliament for the first time, was enthusiastic about what it called the “Triple-E” Senate — elected, effective and equal.

Reformers railed like old-time evangelists against the actual Senate as an appointed house of patronage. In fact, the Reformers made almost a fetish out of their disdain for old-style politicians’ penchant for entitlements and privileges.

Harper quickly discovered the charms of patronage 

When he became Prime Minister, Harper approached the question of the Senate gingerly, at first, continuing to notionally favour some form of election at the provincial level. 

But it didn’t take long for him to discover the seductive charms of all those Senate patronage plums. 

Harper could fairly argue that he would like to reform the Senate but, given the constitution, he has limited options. 

However, when it comes to his appointments to the “Red Chamber” the Prime Minister has had lots of options.

For instance, he could have chosen to systematically appoint quality people, on a non-partisan basis. When he sought First Nations representation, to cite one possibility, he could have invited respected figures such as Roberta Jamieson or George Erasmus to sit as independent Senators.

Instead, Harper turned to Patrick Brazeau, not because of the onetime Aboriginal leader’s eminent career or reputation, but because Brazeau would obediently and enthusiastically parrot the Conservative Party line on First Nations issues.

To some extent the brouhaha over Senators’ expenses is all about not very much, in the large scheme of things. It is, as a friend who was raised in another political culture once said, typical of a Canadian tendency to “sweat the small stuff.”

But it is Harper’s Reformers who swept into Ottawa twenty years ago as the squeaky clean guys who would put an end to old-style patronage.

And it is Harper’s Conservatives who beat the once-mighty Liberals, in 2006, on a campaign based on accountability and cleaning up government.

What happened? 

As Lord Acton once so memorably said ….well, you can look it up…!


Karl Nerenberg

Karl Nerenberg joined rabble in 2011 to cover Canadian politics. He has worked as a journalist and filmmaker for many decades, including two and a half decades at CBC/Radio-Canada. Among his career highlights...