Peter Van Loan, Leader of the Government in the House of Commons and Minister for Democratic Reform, accompanied by Marjory LeBreton, Leader of the Government in the Senate and Secretary of State for Seniors, announced the introduction in the House of Commons of the Senate Appointment Consultations Act and the Constitution Act, 2007 (Senate Tenure). The legislation will make Canada’s institutions more democratic and accountable.
“Our government is re-introducing two Bills to create a modern, accountable Senate that is consistent with 21st century democratic values, principles and traditions,” said Minister Van Loan. “Under our legislation, the Senate will have to be accountable for the decisions it makes, the work it does, and the money it spends. Accountability – the basis of democracy – will finally come to the Senate.”
The first Bill, the Senate Appointment Consultations Act, creates a popular consultations process to allow Canadians to have a direct say in who represents them in the Senate.
The second Bill, the Constitution Act, 2007 (Senate Tenure), will limit the terms of new Senators to 8 years.
“For over 140 years the Senate has resisted change. It remains the same institution that was created by the fathers of Confederation in 1867. This is not healthy for the Senate and it is not healthy for democracy in Canada,” said Minister LeBreton. “Our legislation, once adopted, will finally bring democracy to the Senate.”
The government has indicated that it wants to work with the opposition to create a modern, democratic, and accountable Senate. That is why the Senate Appointment Consultations Act will be sent to committee before 2nd reading to allow for the broadest possible input from the opposition parties.
“We are open to different approaches on the details of Senate reform, but we will not compromise on one fundamental aspect: the Senate must change. And, if that change cannot happen through reform, then we believe that the Senate should be abolished,” said Minister Van Loan. “This is not our preferred route. We prefer to try to reform the Senate before resolving to abolish it. However, if our legislation is blocked, it is a route Canadians will want to see us travel.”
Term Limits for Senators
Currently, under section 23 of the Constitution Act, 1867 , Senators “shall be of the full age of Thirty Years”, and according to section 29 (2), a Senator shall “hold his place in the Senate until he attains the age of seventy-five years”. Thus, a Senator could serve a term as long as 45 years.
Originally Senators were appointed to the Senate “for Life”. In 1965, that was changed when the Pearson government introduced an amendment to section 29 of the Constitution Act, 1867 to create the mandatory retirement age of 75 years for Senators. This amendment was unilaterally passed by Parliament as it did not require the consent of the provinces.
Pursuant to section 44 of the Constitution Act, 1982, Parliament alone may make laws amending the Constitution of Canada in relation to the executive government of Canada, or the Senate and the House of Commons. The Senate tenure bill uses section 44 to amend section 29 to provide that, “… a person summoned to the Senate shall hold a place in that House for one term of eight years.” This new eight year term would only apply to new Senators appointed after the bill becomes law and therefore all current Senators’ terms would continue until they reach the age of 75 years.
Section 42 of the Constitution Act, 1867 sets out the amendments to the Senate which require provincial consent. They are amendments which change:
- the powers of the Senate;
- the method of selecting Senators;
- the number of members by which a province is entitled to be represented in the Senate; and
- the residence qualifications of Senators.
These amendments are subject to the general amending formula, which requires the consent of Parliament and the legislative assemblies of seven provinces having 50 per cent of the population. Since the terms of Senators is not one of the amendments specified in section 42, which would require provincial consent, it can therefore be accomplished by Parliament acting alone, as was the case with the 1965 amendment which also limited (albeit modestly) Senate terms.
Senate Appointment Consultations Act
In the October 2007 Speech from the Throne, the Government committed to reintroduce its Senate reform bills from the previous session. Accordingly, the Government has reintroduced the Senate Appointment Consultations Act in the House of Commons. The Act would establish a national process through which Canadians could be consulted on their choice of candidates for appointment to the Senate.
The Senate Appointment Consultations Act would permit the federal Cabinet to provide that the electors of a province or territory be consulted about potential Senate appointments for that province or territory. For reasons of efficiency and convenience, consultations will coincide with a federal or provincial general election thereby allowing electors to vote for nominees for Senate appointment from their province at the same time they vote to elect Members for the House of Commons (or provincial legislature).
The choices expressed by voters would inform the Prime Minister in recommending appointments to the Senate. The federal Cabinet would determine in which provinces or territories a consultation would be held, and how many places in the Senate would be subject to consultation (which could be more than the number of vacant Senate seats at the time at provide for future vacancies).
The bill proposes no constitutional changes and does not provide for the direct election of senators. The appointment process and method of selection established in the Constitution Act, 1867 are unchanged by this legislation. Appointments would continue to be made by the Governor General, on the recommendation of the Prime Minister, and the constitutionally-defined qualifications for senators would continue to apply at the time of appointment, as they do now.
In addition to creating the consultation mechanism, the bill proposes strict rules of accountability for Senate nominees, creates a framework for the actions of political parties and spending by third parties, establishes rules for voting and counting votes using the single transferable vote, and defines the roles and responsibilities of the Chief Electoral Officer of Canada, who will be responsible for administering the consultation.
Nominees would have to be Canadian citizens and be 30 years of age, consistent with constitutional qualifications for Senators. A successful nominee would still need to meet all other requirements set out in the Constitution (e.g., residence and property qualifications) before being summoned to the Senate by the Governor General.
Prospective nominees would register with the Chief Electoral Officer. They would need to submit nomination papers, including 100 signatures of electors resident in the province for which the person is submitting a nomination, a deposit of $1000, and the endorsement of their party, if they wish to participate as a party-endorsed nominee.
Once a nomination is confirmed by the Chief Electoral Officer, nominees would be able to accept contributions and incur expenses related to their campaign, within the accountability rules established under the Act, which are consistent with the new accountability regime established by the Federal Accountability Act.
Only individuals would be able to make contributions to Senate nominees, and there would be a maximum of $1000 per year (indexed for inflation); this limit will apply to both party-endorsed and independent nominees. Unions and corporations would not be eligible as contributors. Because nominees will need to finance province-wide campaigns, no overall spending limit would apply to campaigns. There would be no per-vote allowance or reimbursement of campaign expenses from public funds. The same reporting rules would apply to Senate nominees as those that apply to candidates for election to the House of Commons under the Canada Elections Act.
In accordance with the traditional independent nature of the Senate, political parties would have a limited role in financing Senate nominees. Parties would not be allowed to transfer funds to their endorsed candidates, although they would be permitted to share some goods and services, such as common office space or membership lists. To conduct advertising in relation to a Senate consultation, a party would have to register as a third party would be subject to province-wide limits similar to those that exist for third parties in a House of Commons election.
The Act would not create a new party regime for the Senate. Only registered parties under the Canada Elections Act would be able to endorse nominees, that is, parties who contest seats for the House of Commons. A person could be a nominee in only one province or territory at a time.