THE SENATE OF CANADA
A Legislative and Historical Overview of the
Senate of Canada
Committees and Private Legislation Directorate
Revised May 2001
The purpose of this overview is to highlight the major features of the
Senate as a parliamentary institution and the events which influenced its evolution. The
Senate retains an important place in Canadian history: indeed, without an agreement to
include the Senate as it is presently constituted, there would have been no Confederation
in 1867. George Brown said it was the key to federation, "the very essence of our
compact". "Our Lower Canadian friends have agreed to give us representation by
population in the Lower House, on the express condition that they would have equality in
the Upper House. On no other condition could we have advanced a step".1 The Senate of Canada is a unique institution,
being the single second chamber within the Canadian federation, and the only one in the
western world whose members are all appointed.2
The Senate resembles very much the British House of Lords in many of its parliamentary
procedures, in its functions as a check on questionable legislation sent up from the House
of Commons and the fact that it is a non-elected House. However, the Senate differs from
the Lords in that its membership is fixed, and that it is not subject to such
constitutional provisions as the Parliament Acts of 1911 and 1949 which
severely restrict the power of the Lords regarding the length of time it can delay
legislation. The Senate is similar to the United States Senate in its federal character
inasmuch as in both chambers the basis of representation is geographical equality.
However, because representation is based on regional equality as opposed to individual
state or provincial equality and because Canadian Senators are not elected and do not
participate in ratifying executive decisions, the two chambers are quite dissimilar.
In order to better understand the work of the Senate and how it
evolved, this paper will briefly examine its origins, its constitutional foundation, its
functions and its composition. It will highlight its legislative work and will provide a
chronology of the major historical events in its evolution. A selected bibliography is
included for those who wish to undertake further reading about the institution.
2. Origins of the Senate
With the exception of British Columbia,3
all of the British North American colonies had bicameral or two chamber legislatures
before 1867. It was from these pre-Confederation Legislative Councils, particularly that
of the United Province of Canada (the union in 1840 of Upper Canada [Ontario] and Lower
Canada [Quebec] ) that the model for the Senate was taken. Its formal origins emerged from
the Charlottetown and Quebec Conferences of 1864 which met to consider proposals for a
union of the British North American colonies. Much of the Quebec Conference was devoted to
creating an upper house. Professor Robert MacKay writes "the importance of this
question in the minds of the statesmen at Quebec may be gleaned from the fact that
practically the whole of six days out of a total of fourteen spent in discussing the
details of the [union] scheme were given over to the problems of constituting the second
chamber".4 Various proposals for its
method of selection were considered, including direct election. The Legislative Council of
Prince Edward Island had been elective since 1862 and that of the Province of Canada since
1857. However, there was not a great deal of enthusiasm for an elected second chamber.
Professor MacKay writes that the elected councils "tended to be a second edition of
the assembly, and because small in numbers and composed for the most part of citizens who
had already made their mark in life, it might in the end have overshadowed the assembly,
just as the Senate of the United States has overshadowed the House of
Representatives".5 In the subsequent
debate on the Quebec Conference Resolutions, John A. MacDonald, who had supported an
elected Council in 1856, admitted the elective system "did not so fully succeed in
Canada as we had expected". Another Father of Confederation, Sir Hector Langevin,
stated that "in Lower Canada we have become tired of the system". George Brown
told the House "I have lived to see a vast majority of those who did the deed, wish
it had not been done".6
A. Text of the Quebec Resolutions as they pertained to the
The following are the resolutions adopted at Quebec City on October 10,
1864 which relate to the Senate. They formed part of a set of resolutions adopted by the
Fathers of Confederation which were eventually forwarded to the Imperial Parliament for
their legislative enactment to unite the British North American colonies.
6. There shall be a General Legislature or Parliament for the
Federated Provinces, composed of a Legislative Council and a House of Commons.
7. For the purpose of forming the Legislative Council, the
Federated Provinces shall be considered as composed of three Divisions: (1) Upper
Canada, (2) Lower Canada, (3) Nova Scotia, New Brunswick, and Prince Edward
Island; each Division with an equal representation in the Legislative Council.
8. Upper Canada shall be represented in the Legislative Council
by twenty-four (24) Members, Lower Canada by twenty-four (24) Members, and the three
Maritime Provinces by twenty-four (24) Members, of which Nova Scotia shall have ten (10),
New Brunswick ten (10) and Prince Edward Island four (4) Members.
9. The Colony of Newfoundland shall be entitled to enter the
proposed Union with a representation in the Legislative Council of four (4) Members.
10. The North Western Territory, British Columbia and Vancouver,
shall be admitted into the Union on such terms and conditions as the Parliament of the
Federated Provinces shall deem equitable, and as shall receive the assent of Her Majesty,
and in the case of the Province of British Columbia or Vancouver, as shall be agreed to by
the Legislatures of such Provinces.
11. The Members of the Legislative Council shall be appointed by
the Crown under the Great Seal of the General Government, and shall hold office during
life. But that if any Legislative Councillor shall, for two consecutive Sessions of
Parliament, fail to give his attendance in the State Council, his seat shall thereby
12. The Members of the Legislative Council shall be British
subjects by birth or naturalization, of the full age of thirty years, shall possess a
continuous real property qualification of four thousand dollars ($4,000.00), over and
above all encumbrances, and shall be worth that sum, over and above their debts and
liabilities, and in the case of Newfoundland or Prince Edward Island the property may be
either real or personal.
13. If any question shall arise as to the qualifications of a
Legislative Councillor, the same shall be determined by the Council.
14. The first election of the Members of the Legislative Council
shall be made, except as regards Prince Edward Island, from the Legislative Councillors of
the various Provinces, so long as a sufficient number be found qualified and willing to
serve. Such Members shall be appointed by the Crown at the recommendation of the General
Executive Government, upon the nomination of their respective Local Governments, and in
such nomination due regard shall be had to the claims of the Members of the Legislative
Council of the Opposition in each Province, so that all Political Parties may as nearly as
possible be equally represented.
15. The Speaker of the Legislative Council (unless otherwise
provided by Parliament) shall be appointed by the Crown from among the Members of the
Legislative Council, and shall hold office during pleasure, and shall only be entitled to
a casting vote on an equality of votes.
16. Each of the twenty-four (24) Legislative Councillors
representing Lower Canada on the Legislative Council of the General Legislature, shall be
appointed to represent one of the twenty-four (24) Electoral Divisions mentioned in
Schedule (1) of Chapter I of the Consolidated Statutes of Canada, and each Councillor
shall reside or possess his qualification in the Division he is appointed to represent.7
B. Excerpts from the Confederation Debates of the United Province of
The following excerpts from the Confederation Debates on
the Quebec Resolutions show the vision which the Canadian legislators had of a future
Senate and their views on the decision to choose an appointed chamber over an elected one.
Mr. Alexander Campbell, (Legislative Councillor):
"Who that looks to the future will say that with an elective Upper House the
Constitution will last? It was the apprehension of danger to its permanency that decided
the Conference to adopt the principle of nomination to the superior branch, and it was the
only way which suggested itself for averting it ... He felt that the principle of election
kept alive a germ of doubt as to the security of the Lower Provinces, and he was glad that
a way was found of removing it altogether".8
Mr. Belleau, (Legislative Councillor): "
... the elective principle, as applied to the Legislative Council, becomes unnecessary in
view of the numerical strength of Lower Canada in the federal Parliament, for the House of
Commons is the body that will make and unmake ministers. Why have the elective principle
for the Legislative Council, since we shall have it for the House of Commons, since we
shall have a Responsible Government, composed of Members elected by the people?"9
Sir E.P. Taché, (Legislative Councillor): "When
the gentlemen who composed the (Quebec) Conference met, they had to lay down on a broad
basis, as it were, for the foundation of the superstructure. Well, it so happened that the
cornerstone was that which concerned the representation in both Houses. It was agreed on
the one hand that in the House of Commons of the Confederate government representation
should be according to numbers, and in the other branch of the Legislature it should be
fixed that this representation should be equal for all the provinces - that is to say
Upper Canada, Lower Canada and the Maritime Provinces, grouped into one, should each be
allowed to send the same number of representatives, so as to secure to each province its
rights, its privileges, and its liberties."10
John A. MacDonald, (Member of the Legislative Assembly and
Attorney General): "In order to protect local interests, and to prevent
sectional jealousies, it was found requisite that the three great divisions into which
British North America is separated, should be represented in the Upper House on the
principle of equality. There are three great sections, in this proposed Confederation. We
have Western Canada, an agricultural country far from the sea, and having the largest
population who have agricultural interests principally to guard. We have Lower Canada,
with other and separate interests, and especially with institutions and laws which she
jealously guards against absorption by any larger, more numerous or stronger power. And we
have the Maritime Provinces, having also different sectional interests of their own,
having from their position, classes and interests which we do not know in Western Canada.
Accordingly, in the Upper House, - the controlling and regulating, but not the initiating,
branch (for we know that here as in England, to the Lower House will practically belong
the initiation of matters of great public interest), in the House which has the sober
second-thought in legislation -it is provided that each of those great sections shall be
represented equally by twenty-four (24) members. The only exception to that condition of
equality is in the case of Newfoundland, which has an interest of its own, lying, as it
does, at the mouth of the great river St. Lawrence, and more connected, perhaps with
Canada than with the Lower Provinces ... It, therefore, has been dealt with separately,
and is to have a separate representation in the Upper House, thus varying from the
equality established between the other sections.
As may be well conceived, great difference of opinion at first existed
as to the constitution of the Legislative Council. In Canada the elective principle
prevailed; in the Lower Provinces, with the exception of Prince Edward Island, the
nominative principle was the rule. We found a general disinclination on the part of the
Lower provinces to adopt the elective principle; indeed, I do not think there was a
dissenting voice in the Conference against the adoption of the nominative principle,
except from Prince Edward Island. The delegates from New Brunswick, Nova Scotia and
Newfoundland, as one man, were in favour of nomination by the Crown. And nomination by the
Crown is most in accordance with the British Constitution ...
The arguments for an elective Council are numerous and strong; ... I
hold that this principle has not been a failure in Canada; but there were causes - which
we did not take into consideration at the time - why it did not so fully succeed in Canada
as we had expected. One great cause was the enormous extent of the constituencies and the
immense labour which consequently devolved on those who sought the suffrage of the people
for election to the Council. For the same reason ... the legitimate expense was so
enormous that men of standing in the country, eminently fitted for such a position, were
prevented from coming forward ...
There would be no use of an Upper House, if it did not exercise, when
it thought proper, the right of opposing or amending or postponing the legislation of the
Lower House. It would be of no value whatever were it a mere chamber for registering the
decrees of the Lower House. It must be an independent House, having a free action of its
own, for it is only valuable as being a regulating body, calmly considering the
legislation initiated by the popular branch, but it will never set itself in opposition
against the deliberate and understood wishes of the people".11
H.L. Langevin, (Member of the Legislative Assembly and
Solicitor General): " ... the elective principle in our existing Legislative
Council was merely an experiment and that in Lower Canada we have become tired of the
system, not because the councillors who have been elected by the people are unworthy of
the position which they occupy, or because their selection was an unfortunate selection,
but because the very nature of the system prevents a large number of men of talent, of men
qualified in every respect and worthy to sit in the Legislative Council, from presenting
themselves for the suffrages of the electors, in consequence of the trouble, the fatigue
and enormous expense resulting from these electoral contests in enormous divisions. We
know that the system has wearied Lower Canada ..."12
George Brown, (Member of the Legislative Assembly):
" ... It has been said that members of the Upper House ought not to be appointed by
the Crown, but should continue to be elected by the people at large. On that question my
views have been often expressed. I have always been opposed to a second elective chamber
and I am so still, from the conviction that the two elective Houses are inconsistent with
the right working of the British parliamentary system ... [W]hen the elective element
becomes supreme, who will venture to affirm that the Council would not claim that power
over money bills which this House claims as of right belonging to itself? Could they not
justly say that they represent the people as well as we do, and that the control of the
purse strings ought, therefore, to belong to them as much as to us. It is said they have
not the power. But what is to prevent them from enforcing it?"13
3. The Constitutional Foundation of the Senate
A) Powers and Selection Process
The Parliament of Canada is composed of the Sovereign, the Senate and
the House of Commons and the consent of all three is necessary for the passage of
legislation. The formal powers of the Senate are co-equal to those of the House of Commons
with two exceptions: (a) Section 53 of the Constitution Act, 1867
directs that money bills are to originate in the House of Commons and (b) section
47(1) of the Constitution Act, 1982 provides that amendments to the
constitution can be made without the consent of the Senate.
The constitutional foundation defines a selection process whereby
Senators are appointed by the central governments executive (specifically by the
Governor General, acting on the advice of the Prime Minister) and whereby the legislature
is limited to a fixed size, based upon an equality of regional divisions. Senators are to
be at least thirty years old, citizens by birth or naturalization and hold property of at
least $4,000 in the province for which they were appointed. Previous to 1965, Senators
were appointed for life. In 1965, in what was the first significant step towards Senate
reform, The Constitution Act, 1867 was amended so that all Senators
appointed after that date were to retire at age 75. Originally, the Senate was composed of
72 members, but increased as the country geographically and demographically grew in size.
In the first forty (40) years of Confederation, a series of arrangements to provide
representation to Manitoba, British Columbia, Prince Edward Island, Alberta and
Saskatchewan brought a total number of Senate seats to eighty-seven (87). In 1915 the
number of Senators increased to 96, in 1949 to 102, in 1974 to 104 and in 1999 to 105.
Today, the number of seats per province is as follows: Ontario 24, Quebec 24, Nova Scotia
10, New Brunswick 10, Prince Edward Island 4, Manitoba, British Columbia, Saskatchewan,
Alberta and Newfoundland 6 each, and the Northwest Territories, Nunavut and the Yukon
Territories 1 each. Pursuant to sections 26, 27 and 28 of the Constitution Act, 1867,
four or eight additional Senators may be appointed, upon the direction of the Queen.14 The total number of Senators cannot
exceed 113, but the normal compliment is set at 105.
Four points may be emphasized with regard to the selection process: (i)
The Senate is the only non-elected legislature in Canada. ii) As a Senators
writ of summons states, he or she has been appointed "for the purpose of obtaining
your advice and assistance in all weighty and arduous affairs which may be the State and
Defence of Canada concern". In theory then, Senators are given a different function
than that of popularly elected members. iii) Since there is maximum number of
appointments, the Senate, unlike the House of Lords, cannot be unlimitedly
swamped if a government finds it obstinate. This constitutional provision has
bestowed a certain amount of independence on the Senate which governments have always had
to consider when planning parliamentary work. iv) Because their property is to be
possessed within the province for which they are appointed, constitutionally Senators are
given a regional, representative role.
B) Parliamentary Privilege
The parliamentary privileges of the Senate as a body and of its members
as individuals are given with those of the House of Commons. R. MacGregor Dawson gives the
following background note regarding privilege in Canada:
The inherent privileges of the Dominion Parliament were of the same
moderate proportions as those allowed to other colonial legislative bodies. The British
North America Act, however, made explicit provision for the immediate addition of
statutory powers and privileges on a substantial scale. Section 18 read as follows:
"The privileges, immunities, and powers to be held, enjoyed, and exercised by the
Senate and by the House of Commons and by the members thereof respectively shall be such
as are from time to time defined by Act of the Parliament of Canada, but so that the same
shall never exceed those at the passing of this Act held, enjoyed and exercised by the
Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the
In 1868 the Canadian Parliament enacted a law which gave to each of the
houses, in almost the identical words used above, the powers, immunities, and privileges
enjoyed by the British House of Commons at the time of passing the British North America
Act, "so far as the same are consistent with and not repugnant to the said Act."
A further section stated that these were part of the general and public law of Canada and
"it shall not be necessary to plead the same, but the same shall in all Courts in
Canada and by and before all judges be taken notice of judicially". The act also
protected the publication of any proceedings against civil or criminal suit if these were
published under the order or authority of the Senate or House of Commons.
This was followed in the same year by an act professing to give to the
Senate or to any select committee on private bills of the Senate or of the House the power
to examine witnesses on oath. In 1873 the power to examine witnesses on oath was extended
to any committee of either house. This latter act was disallowed by the British government
on the ground that it was ultra vires, in that it tried to give powers to the
Canadian houses which were not possessed in 1867 by the British House of Commons. The
earlier act had been, in fact, ultra vires also, although it had been allowed to
stand. The sequel came in 1875 with an amendment to the British North America Act, which
repealed the original section 18 and substituted another to the effect that the
privileges, immunities, and powers of the Canadian Parliament and its members were never
to exceed those enjoyed from time to time by the British House of Commons. Another section
confirmed the earlier Canadian act of 1868 noted above. Inasmuch as the British House of
Commons in 1871 had given to its committees the power to examine witnesses on oath, the
Canadian Parliament was able in 1876 legally to endow its committees with the same power.
The privileges, immunities, and powers of the Houses of the Parliament
of Canada are thus potentially those of the British House of Commons, although their
primary base is statutory and not established custom and inherent right. They can, of
course, be increased beyond those of the British House by constitutional amendment, which
under the British North America Act of 1949 (No. 2) would presumably be an ordinary act of
The privileges, immunities, and powers of the Canadian Parliament fall
into two chief categories: (a) those of individual members of either house; (b)
those of the Senate or of the House of Commons as a body. They are virtually but not quite
the same for each house. The privilege of the Commons to settle controverted election
cases, for example, could clearly not be a privilege of the Senate.15
C) Exclusion of Senate from Originating Money Bills
Section 53 of the Constitution Act, 1867 states that
"Bills for appropriating any Part of the Public Revenue, or for Imposing any Tax or
Impost shall originate in the House of Commons". The wording of this provision
followed that of Section 57 of the Union Act, 1840 which had
constitutionally united Upper and Lower Canada into the United Province. Section 57 of the
Union Act removed any doubt as to where money bills were to originate:
"57. All Bills for appropriating any Part of the Surplus of
the said Consolidated Revenue Fund, or for imposing any new Tax or Impost, shall originate
in the Legislative Assembly of the Province of Canada."
Professor Elmer Driedger, in his article "Money Bills and the
Senate", gives three possible reasons for excluding the Upper House from introducing
" ... it is arguable that the words of section 53 embody the
entire privilege of the House of Commons in England. This is the form in which the
privilege was originally asserted and ... any interference, whether by way of amendment or
otherwise, with a money bill was always regarded by the Commons in England as a breach of
the privilege. The language of section 53 was first written into our constitutional
documents in 1840, and at that time the Lords in England had for several centuries
submitted to the privilege asserted by the Commons, with all its implications. It may well
be that it was thought that these words were enough to place the House of Commons of the
Confederated Canada of 1867, in the same position as the House of Commons in England with
respect to financial matters and to subject the Upper House to the same disabilities.
A second argument can be made that, apart from history and precedent
and considering only the language of section 53, there is a necessary implication that the
Senate cannot in any way amend a bill that by that section is required to originate in the
House of Commons. If a bill is introduced in the House of Commons to levy a tax or grant a
sum of money, and the tax or appropriation is reduced by an amendment in the Senate, it is
arguable that the bill as amended did not originate in the House of Commons. Can it
not be said that section 53 requires that the whole of the bill on which the ultimate law
is founded must originate in the Commons? And that when a bill is amended in the Senate,
it becomes a different bill and is not the same bill that originated in the Commons -even
though it may be written on the same piece of paper?
But perhaps the strongest argument in favour of the Commons can be
founded on the theory that under our Constitution (similar in principle to that of the
United Kingdom), representation and consent form the basis of the power of the Commons to
grant money and impose taxes. As early as the twelfth century, when the Saladin Tithe was
imposed, taxation and representation were connected; the tithe was assessed by a jury in
some sense representative of the taxpayer and of the parish in which he lived, and the
towns sent representative burgesses to Westminster to bargain with the Crown. Through the
centuries, the principle was maintained that taxation required representation and consent.
The only body in Canada that meets this test is the Commons. The elected representatives
of the people sit in the Commons, and not in the Senate, and, consistently with history
and tradition, they may well insist that they alone have the right to decide to the last
cent what money is to be granted and what taxes are to be imposed."16
It must be noted that the Senate has historically taken the position
that it has the constitutional right to amend (but not increase) money bills sent up from
the House of Commons. The Report of the Special Committee Appointed to Determine the
Rights of the Senate in Matters of Financial Legislation (the Ross Report) tabled
in the Senate on May 9, 1918, made the following observations:
1. That the Senate of Canada has and always had since it was
created, the power to amend Bills originating in the Commons appropriating any part of the
revenue or imposing a tax by reducing the amount therein, but has not the right to
increase the same without the consent of the Crown.
2. That this power was given as an essential part of the
3. That the practice of the Imperial Houses of Parliament in
respect of Money Bills is no part of the Constitution of the Dominion of Canada.
4. That the Senate in the past has repeatedly amended so-called
Money Bills, in some cases without protest from the Commons, while in other cases the
bills were allowed to pass, the Commons protesting or claiming that the Senate could not
amend a Money Bill.
5. That Rule 78 of the House of Commons of Canada claiming for
that body powers and privileges in connection with Money Bills identical with those of the
Imperial House of Commons is unwarranted under the provisions of The British North
America Act, 1867.
6. That the Senate as shown by the British North America
Act as well as by the discussion in the Canadian Legislature on the Quebec Resolutions
in addition to its general powers and duties is specially empowered to safeguard the
rights of the provincial organizations.
7. That besides general legislation, there are questions such as
provincial subsidies, public lands in the western provinces and the rights of the
provinces in connection with pending railway legislation and the adjustment of the rights
of the provinces thereunder likely to arise at any time and it is important that the
powers of the Senate relating thereto be thoroughly understood.
4. Functions of the Senate
The great English constitutional theorist, Walter Bagehot, once
remarked with regard to the British parliamentary system that "if we had an ideal
House of Commons ... it is certain we should not need a higher Chamber".17 This observation is key to any discussion about
the Senate as it is presently structured and proposals for future reform. Bagehot was
merely one of many constitutional experts who throughout the history of political thought
favoured the mixed regime as opposed to a single unicameral system. Bicameral
theorists believed that popular, elected houses were deficient: in particular,
they had a potential of succumbing to special interests and the majority will
which they claimed needed to be supplemented by minority opinion, equally integral to the
well-being of the state. In 1980, the Legal and Constitutional Affairs Committees Report
on Certain Aspects of the Canadian Constitution listed four roles of the Senate,
all of which were complimentary to the functions of the House of Commons. They were: a
revising legislative role; an investigative role; a regional representative role and a
protector of linguistic and other minorities role. These are roles that the Senate has
The Senate has always played an active role in scrutinizing
legislation. Most of the legislation studied by the Senate originates in the House of
Commons, since most bills contain some financial provisions and, pursuant to section 53 of
the Constitution Act, 1867, money bills are to originate in the House of
Government legislation may also be introduced in the Senate. The number
of government bills introduced in the Senate has varied over the years. Between 1924 and
1945 only 36 government bills originated in the Senate but between 1946 and 1953 there
were 138. Professor F.A. Kunz has written:
"Governments have invariably found the Senate a well-suited place
for first consideration of voluminous, complex, and highly technical pieces of
legislation, such as consolidating measures, requiring great legislative experience as
well as legal and financial talent and leisurely procedure. The services rendered by the
Senate in such instances have been more than simple time-saving for the House of Commons;
the Senate has turned out reliable and enduring pieces of legislation, which are amongst
the best framed and most competently constructed Acts on the Statute Book of Canada."18
Senators may introduce private members public bills. Regarding these
measures, Kunz observes: "Because of the more leisurely timetable and general
procedural flexibility of the Senate a Senator appears to be better placed for introducing
legislation than a member of the House of Commons, his chance of getting his measure
enacted, however, is very slim indeed, except for agreed proposals ... Indeed, since the
end of the war only one private members Senate bill has reached the Commons, that
which was subsequently placed on the Statute Book".19
Since 1965, 4 of the 112 private bills introduced in the Senate have received royal
Virtually all private legislation, that is, bills which deal with
private interests such as incorporating a company, extending a railway line, or providing
legal status to religious or charitable bodies, originate in the Senate, namely because it
is less expensive. Petitioners for private bills must pay all legal, printing and
translation costs. While the minimum fee for the introduction of a private bill in the
Senate is $200, the fee in the House of Commons has been, since 1934, $500. Up until 1967,
the Senate was very active in divorce legislation, passing an average since the Second
World War, three hundred and forty (340) divorce bills a year.20
Since 1968, the authority for granting divorces rests with all provincial courts.
With regard to the rejection of legislation sent from the House of
Commons, James R. Robertson of the Library of Parliament notes the following:
"Without a detailed review of the debates and records of the Canadian Senate, it is
not possible to give a definitive list of bills received from the House of Commons that
have been rejected by the Senate. Even MacKay and Kunz differ in their interpretation of
what constitutes a rejection. It is in part, a definitional question ... The Senate can
reject bills outright at second or third reading, but it can also engage in other actions
that amount to rejection. Similarly, Senate leaders can threaten to defeat proposed
legislation, in an effort to affect or forestall government action".21
Robertson cites the following as some of the major pieces of government
legislation rejected by the Senate since Confederation:
i) In 1875, the upper chamber rejected a bill for the
construction of a railway from Esquimalt to Nanaimo in British Columbia on the ground it
was an unwarranted public expenditure.
ii) In 1879, the Senate turned down a bill to provide for two
additional judges in British Columbia on the ground that the provincial government was in
the midst of an election and had, under the circumstances, no right to ask for the
iii) In 1899 and 1900, the Senate rejected a bill to re-adjust
representation in Ontario on the alleged ground that it was inexpedient to proceed with
the bill until after the 1901 census, when re-adjustment of representation would be
required under the British North America Act.
iv) In 1909, a bill which allowed appeals in claims from the
Exchequer Court to provincial Supreme Courts in certain cases was rejected on the ground
that it would lead to unnecessary litigation and confusion.
v) In 1913, the Senate defeated the Naval Assistance Bill and
adopted the following resolution: "This House is not justified in giving its assent
to the bill until it is submitted to the judgement of the country".
vi) In 1919, a bill bringing the Biological Board of Canada
under the jurisdiction of the Minister of Marine and Fisheries was thrown out on the
ground that the Board should be independent and protected from political interference.
vii) In 1924, the Senate rejected seven bills sent from the
Commons and drastically amended three others relating to the construction of the branch
lines for the newly organized Canadian National Railway.
viii) In 1926, the Senate rejected the Old Age Pension Bill on
the grounds that there was no general public demand, that the provinces had not indicated
approval, and on the ground of social undesirability.
ix) From 1930 to 1940, thirteen bills from the Commons failed to
pass the Senate, including one private bill relating to patents, two private members
public bills, a bill relating to pensions for Judges, and a bill which provided for the
extension of Farmers Creditors Arrangement Act.
x) In 1961, the Senate Banking Committee recommended that a Bill
declaring vacant the post of Governor of the Bank of Canada be dropped after the former
Governor, Mr. James E. Coyne, resigned.
xi) In 1961, the Senate insisted on an amendment it made to a
Government Bill to amend the Customs Act.
During the 1970s, Senate impact on Commons legislation was
principally to be found in recommendations emanating from pre-study committee reports made
to bills in advance of their coming before the Senate. Such pre-study of the 1975
Bankruptcy Bill led to almost 140 amendments being proposed.
During the latter 1980s and the 1990s, the Senate became
more active in formally opposing and amending Commons legislation. Among the more
controversial bills which led to confrontation between the Senate and House of Commons
were the following: (i) in 1985, Bill C-11, the Borrowing Authority Bill; (ii)
in 1986, Bill C-67, the "gating" amendments proposed to the Penitentiary Act; (iii)
in 1987, Bill C-22, the Drug Patent Bill and Bill C-84, the Immigration Bill; (iv)
in 1988, Bill C-60, the Copyright Bill, Bill C-103, the Atlantic Canada Opportunities
Agency Bill and Bill C-130, the Free Trade Bill; (v) in 1989, Bill C-21, the
Unemployment Insurance Act amendments; (vi) in 1990, Bill C-28, the
"clawback" Income Tax Bill and Bill C-62, the Goods and Services Tax; (vii)
in 1991, Bill C-43, the Abortion Bill, which was defeated at third reading; (viii)
in 1996, Bill C-28, the Lester B. Pearson International Airport Bill, which was also
defeated at third reading; and, (ix) in 1998, Bill C-220, the profit from
authorship respecting a crime Bill, which was defeated at report stage.
Professor Kunz writes that "a considerable part of the
Senates functions is performed in Committee and ... in many cases what happens in
the Chamber is only a preparation for, or a consummation of, what is accomplished in the
Committee room".22 The role of Senate
Committees is to study legislation, to scrutinize government spending proposals (the
estimates) and to inquire into problem areas of concern. A select committee may refer to a
standing Committee, which is permanently established by the Senate Rules, or a special
committee which is appointed to study a specific order of reference and disappears upon
completion of its work. Pursuant to the Rules, Committees may appoint Sub-Committees. The
Senate may also join with the House of Commons in the creation of Standing Joint
Committees or Special Joint Committees.
A number of major investigations into social and economic issues have
been undertaken by Senate Committees in recent years, prompting some commentators to
observe that "its initiatives in this area have sometimes made unnecessary the
appointing of royal commissions".23 Among
the studies conducted in recent years, mention may be made of Science Policy (1970), The
Mass Media (1970), Poverty in Canada (1971), the Agricultural Potential of Eastern New
Brunswick (1976), Children (1980), Veterans (1981), Soil Erosion (1984), Canadian
Financial Institutions (1990), the Canada-U.S. Free Trade Agreement (1990); the Goods and
Services Tax (1990); Program Evaluation in the Government of Canada (1991); Truro-Sydney,
N.S. Railway Line (1992); Peacekeeping (1993); Energy Emissions Crisis (1993); the Valour
and the Horror (1993); Of Life and Death (1995); Post-Secondary Education in Canada
(1997); Canadian Agricultures Priorities (1999); Social Cohesion (1999); Aboriginal
Governance (2000); and, Air Safety and Security (2000).
5. Composition of the Senate
The appointment system has permitted the entry into the Senate of many
distinguished Canadians. Among some of the best known Senators were George Brown,
Alexander Campbell, Oliver Mowat, Richard Cartwright, George Ross, George Foster, Allan
Aylesworth, Raoul Dandurand, James Lougheed, Arthur Meighen, Ross Macdonald, T.A. Crerar,
Leon Mercier Gouin, Chubby Power, Adrian Hugessen, Grattan OLeary, Maurice Bourget
and Eugene Forsey to name only a few. Historically, Senators have held important cabinet
positions within government. In the first Canadian cabinet, five of the thirteen ministers
were Senators, and two governments in the nineteenth century were led by Senators, Sir
John Abbott (1891-92) and Sir Mackenzie Bowell (1894-96). Nearly every major portfolio
except that of Finance has been held at one time or another by a Senator.24
In terms of party representation in the Senate, in 1867 the
Conservatives and Liberals each held approximately equal representation. When the Liberals
came into office in 1896, the Senate consisted of 63 Conservatives, 10 Liberals and 3
Independents. In 1911, when the Conservatives came to power, there were 57 Liberals and 17
Conservatives. When the Conservatives returned to power in 1957, there were 78 Liberals, 5
Conservatives and 2 Independents. In 1979, when Mr. Clark became Prime Minister (June
4, 1979), membership in the Senate was 72 Liberals, 18 Conservatives, 3 Independents
and 1 Social Credit. In 1984, when Mr. Mulroney became Prime Minister (September 17,
1984), the balance was 73 Liberals, 23 Conservatives and 4 Independents.25 A few weeks prior to leaving office, Mr.
Mulroney filled the fourteen vacancies in the Senate with 13 Conservatives and one
Independent. As a result, in 1993 Prime Minister Chrétiens Liberal caucus of 41
Liberals faced 58 Conservatives and 5 Independents. The present composition of the Senate
(March, 2001) is 54 Liberals, 33 Conservatives, one Alliance, 5 Independents and 12
The appointment system has produced a different kind of legislator than
the elective system of the House of Commons. Senators are generally older than Members of
the Commons and are the more senior legislators, in that they have had more parliamentary
experience before taking their seats. There have been proportionately more women in the
Senate than in the House. R. MacGregor Dawson writes, "the appointments to the
Senate are frequently used to give not only provincial representation, but also
representation to economic, racial, and religious groups in the provinces."26
A. Provincial Representation
The following provides a brief explanation of the history of the entry
of each province and territory into Confederation and the variations in the number of
Senators assigned to them. It must be noted, however, that the Senates composition
reflects both provincial and regional representation. As John A. MacDonald stated in the
Confederation Debates, the principle of equality in the Upper House was "to protect
local interests and to prevent sectional jealousies". MacDonald saw the British North
American colonies as three great sections - Ontario, Quebec and the Maritimes, each with
different economic interests. It was on the basis of regional equality and not provincial
equality that Senate representation was agreed to.
i) Quebec and Ontario - The only feasible scheme for the
union of the British North American colonies in 1867, Professor MacKay writes "was a
federal state in which Lower Canada (Quebec) should be protected in all its rights. Lower
Canada must be a willing partner to any scheme of union since geographically it held the
key to any union with the Maritime Colonies. And it could only be a willing partner by the
grant of absolute guaranties for the protection of its institutions, its language, its
religion, and its laws guarantees that must be clearly evident to all".27 Quebec was given equal representation in the
Senate with Ontario - twenty-four seats. Section 24 of the Constitution Act, 1867
provided for a special representation in the case of Quebec: "each of the twenty-four
Senators representing that Province shall be appointed for one of the twenty-four
electoral districts of Lower Canada ... ". These districts are specified in Schedule
A to Chapter One of the Consolidated Statutes of Canada (1859).
ii) Nova Scotia, New Brunswick and Prince Edward Island -
The original agreement adopted at Quebec City in 1864 by the Fathers of Confederation
stated that Nova Scotia would have ten Senators, New Brunswick ten and Prince Edward
Island four. The record of the discussions which took place at the Quebec Conference shows
that the Prince Edward Island delegates argued vigorously that the only safeguard the
smaller Provinces would possess was in the Senate and raised the demand for equal
representation for all the provinces in the Upper House. This position, MacKay writes
"was farther than other Maritime delegations were prepared to go".28 P.E.I. alone dissented from the Quebec
agreement and refused to come into the new federation. In order to retain the equality of
sectional representation, the twenty-four maritime members were divided equally between
New Brunswick and Nova Scotia. When Prince Edward Island entered Confederation pursuant to
the Prince Edward Island Terms of Union, 1873, it did so on the terms and
conditions of the Quebec resolutions. Senate representation was therefore readjusted to
ten Nova Scotia seats, ten New Brunswick seats and four from P.E.I.
iii) Newfoundland - The Fathers of Confederation regarded
Newfoundland as a distinct region and its representation in the Upper Chamber an exception
to the condition of equality. Sir John A. MacDonald felt the province "had an
interest of its own ... It, therefore, has been dealt with separately, and is to have a
separate representation in the Upper House, thus varying from the equality established
between the other sections". Newfoundland entered Confederation only in 1949,
pursuant to the Newfoundland Act, which confirmed the Terms of Union between
the province and Canada. The Terms of Union provided for representation in the Senate by
iv) Manitoba, Saskatchewan, Alberta and British Columbia
- The Quebec Resolutions stated that "the North Western Territory, British Columbia
and Vancouver shall be admitted into the Union on such terms and conditions as the
Parliament of the Federated Provinces shall deem equitable". The Manitoba Act,
1870 provided that it shall "be represented in the Senate of Canada by two
Members, until it shall have, according to decennial census, a population of fifty
thousand souls, and from thenceforth it shall be represented therein by three Members,
until it shall have, according to decennial census, a population of seventy-five thousand
souls, and from thenceforth it shall be represented therein by four Members". The British
Columbia Terms of Union, 1871 stipulated that the province would be represented in
the Senate by three members. The Alberta Act, 1905, and the Saskatchewan
Act, 1905 each provided for four Senators with a proviso added "that such
representation may, after the completion of the next decennial census, be from time to
time increased to six by the Parliament of Canada". By the Constitution Act,
1915, the West became recognized as a distinct section and was allotted a
representation of twenty-four members equally with the other sections, six Senators being
assigned to each of the four western provinces.
v) The Northwest Territories and the Yukon Territory -
Pursuant to the Constitution Act, 1975, the two territories were entitled to
be represented in the Senate by one member each. Like the Province of Newfoundland, they
were not added to an existing region but treated as an exception to the sectional
vi) The Nunavut Act of 1993 separated the new
Territory of Nunavut from the Northwest Territories and granted it representation in the
Senate by one member.
6. Significant Events in the Historical Evolution of the
Senate of Canada
1864 - In September 1864, the Charlottetown Conference is
held originally to discuss a Maritime Union and then to discuss a union of all the British
North American Colonies. In October 1864, the Quebec Conference is held. Six out of the
fourteen days of the Quebec Conference are devoted to discussing the powers and
composition of the Upper Chamber.
1867 - The first sitting of the Senate is held on November 16,
1867. The first Senate Speaker is Joseph Edouard Cauchon. During the session, three
Standing Committees are appointed: Banking, Commerce and Railways, Contingent Accounts,
and Standing Orders and Private Bills.
1870 - Entry of Manitoba. The Manitoba Act
provides for the addition of two Senators for that province.
1871 - Entry of British Columbia. The British Columbia
Terms of Union awards three Senate seats to B.C.
1873 - Entry of Prince Edward Island. P.E.I. is awarded four
seats, and the representation of each of the two other Atlantic provinces is reduced from
12 to 10 seats.
1874 - The British Government replies that it could not advise
Her Majesty to comply with the request of Prime Minister Alexander MacKenzie to appoint
extra Senators pursuant to Section 26 of the Constitution Act, 1867.
1875 - The first major legislative confrontation between the
Senate and House of Commons. The Senate rejects a bill for the construction of a railway
from Esquimalt to Nanaimo in British Columbia.
1879 - The "Northwest Territories" of the time were
given two seats in the Senate, a figure which was doubled in 1903.
1889 - Creation of the Standing Committee on Divorce.
1894 - Creation of the Standing Committee on Internal Economy
and Contingent Accounts.
1905 - Entry of Alberta and Saskatchewan. These newly-created
provinces each obtain four seats.
1909 - Creation of Agriculture and Forestry Standing Committee
and Immigration and Labour Standing Committee.
1913 - Senate defeats Naval Assistance Bill saying "This
House is not justified in giving its assent to the bill until it is submitted to the
judgement of the country."
1915 - Passage of the Constitution Act, 1915 which
reorganized and rationalized the basis of representation by creating a fourth division,
the Western division, composed of the provinces of Manitoba, Saskatchewan, Alberta and
British Columbia, each represented by six Senators. The same act provided for the awarding
of six seats in the Senate to Newfoundland when it entered Confederation, which it did in
1918 - Tabling of the Report of the Special Committee of the
Senate appointed to determine the rights of the Senate in Matters of financial Legislation
(the Ross Report) which upheld the right of the Senate to amend Commons money bills.
1919 - Creation of the Standing Senate Committee on Finance.
1926 - Senate rejects the Old Age Pension Bill.
1930 - "Persons Case" decision by the Judicial
Committee of the Privy Council in Edwards v. Attorney General for Canada ( A.C.
124) confirming the possibility of appointing women to the Senate. On February 14,
1930, Mrs. Cairine MacKay Wilson, daughter of the late Senator MacKay of Ontario, was
summoned to the Senate, becoming Canadas first woman Senator.
1930 - Parliament of Canada confers jurisdiction for divorce for
Ontario on the Supreme Court of Ontario, leaving only Quebec and Newfoundland whose courts
had no jurisdiction over divorces. Henceforth, divorce bills dealt with by the Senate
concerned divorces in these two provinces alone. Pursuant to the Divorce Act,
1967-1968, the authority for granting divorces was completely taken away from the Senate.
The Act replaced the then existing Dissolution and Amendment of Marriages Act, but
allowed any proceeding not finally disposed of to continue as if the Act had not been
repealed. The Senate disposed of its last divorce case on November 26, 1969.
1934 - At the instigation of the Government of the day, the
Commons raises its fee for the initiation of a private bill from $200 to $500, the
understanding being that the Senate fee would remain at $200. The result was to divert the
initiation of all private bills to the Senate.
1938 - Creation of the Standing Senate Committee on External
1946 - Restructuring of some Senate Committees. Natural
Resources (which terminated in 1969-70) replaces Agriculture and Forestry and Transport
and Communications replaces Railways, Telegraphs and Harbours.
1947 - Senate Rules changed to permit a Minister from the House
of Commons to take part in a Senate debate in Committee of the Whole when a bill relating
to his or her Department is considered in the Senate.
1961 - Appearance of Bank of Canada Governor James E. Coyne
before the Banking Committee on the Bill declaring vacant the post of Governor of the Bank
1965 - Reduction in the Senatorial term, pursuant to the Constitution
Act, 1965. Under the terms of this reform, which does not apply to Senators
appointed on or prior to June 2, 1965, Senators must retire at age 75.
1968-69 - Restructuring of Senate Committees. Foreign Affairs
replaces External Relations, and Health, Welfare and Science replaces Immigration and
Labour. Creation of the Standing Senate Committee on Legal and Constitutional Affairs.
Major revision undertaken to Senate Rules.
1970-71-72 - Creation of Standing Senate Committee on Internal
Economy, Budgets and Administration, replacing Internal Economy and Contingent Accounts.
Creation of the Standing Senate Committee on Agriculture in 1972.
1972 - Appointment of the first woman Speaker, Muriel McQueen
1975 - The Yukon and Northwest Territories are each awarded one
1979 - On December 21, 1979 in Re: Authority of Parliament
in Relation to the Upper House , 1 S.C.R. 54, the Supreme Court rules that
Parliament cannot fundamentally alter the Senate in virtue of section 91(1) of the B.N.A.
Act, 1867. In this Bill C-60 reference, the Supreme Court confirmed that the
consent of the provinces was necessary for the reform of the essential elements of the
Constitution and the powers of the Senate.
1982 - Passage of the Constitution Act, 1982.
Under the new amending formula, the Canadian Parliament is given exclusive authority to
amend the provisions of the Constitution of Canada in relation to the Senate. A more
demanding formula governs amendments affecting the Senates powers, selection of
Senators, the number of Senators by which a province is entitled, and the residency
conditions to be met by Senators. In these areas, amendments may be made by proclamation
of the Governor General authorized by resolutions of the Senate, the House of Commons and
the legislative assemblies of seven provinces representing 50% of the population of all of
the provinces. The Constitution Act, 1982 provides that for constitutional
amendments the Senate has only a suspensive veto of 180 days. In the absence of Senate
agreement, the House of Commons has only to wait 180 days and then adopt the
constitutional amendment a second time.
1983-84 - Creation of the Standing Senate Committee on Energy
and Natural Resources.
1987 - The 1987 Meech Lake Accord contains a provision regarding
vacancies in the accord. The proposed new procedure could guarantee that no person would
be appointed to the Senate who was not acceptable to both levels of Government. The
political accord accompanying the proposed Constitution Amendment, 1987
contains a commitment ensuring that the new nomination procedure for Senators is to take
effect forthwith upon signature of the accord and prior to the proclamation of the
amendments. The provisional procedure is to apply until there are constitutional
amendments regarding the Senate generally or until the Accord fails to be ratified. Six
Senators are appointed pursuant to this accord. In 1990, time expires for the ratification
of the Accord.
1988 - Senate does not pass Bill C-130, the Free Trade Agreement
Bill. A general election is called. With the Mulroney Government returned, the bill is
speedily passed in the first session following the election.
1989 - Creation of the Standing Senate Committee on Aboriginal
1990 - Elected in the Alberta province-wide election, Senator
Stan Waters is summoned to the Senate on June 16, 1990.
1990 - On September 25, 1990, the Banking, Trade and Commerce
Committee reports to the Senate that Bill C-62, the Goods and Services Tax be not
proceeded with. The recommendation is defeated and following a lengthy and turbulent
debate, the bill is passed and given Royal Assent on December 13, 1990.
1990 - On September 27, 1990, eight additional Senators are
appointed pursuant to section 26 of the Constitution Act, 1867. It is the
first time the section has been used.
1991 - On June 18, 1991, the Senate adopts major changes to its
procedural rules and practices. It is the most important revision since 1906.
1992 - Defeat of the Charlottetown Accord in the October 26,
1992 referendum. The Accord had proposed that each province would be assigned six Senators
and each territory one. Additional seats would be added to represent the Aboriginal
peoples of Canada. Elections would take place under federal jurisdiction at the same time
as elections to the House of Commons. Elections could be by the people or by their
provincial or territorial legislatures. There would be scope for the provinces and
territories to provide for gender equality or to designate seats for specific purposes.
The Senate would be able to block key appointments, including the heads of key regulatory
agencies and cultural institutions. It would also be able to veto bills that result in
fundamental tax policy changes directly related to natural resources. In addition, it
would have the power to act within 30 calendar days to force the House of Commons to
repass supply bills. Defeat or amendment or ordinary legislation would lead to a joint
sitting process with the House of Commons. At a joint sitting, a simple majority would
decide the matter. Bills materially effecting the French language or French culture would
require approval by a double majority - a majority of all Senators voting and a majority
of all Francophone Senators voting. Senators would initiate bills, except for money bills,
and the House of Commons would be required to deal with them within a reasonable time
limit. Senators would not be eligible for Cabinet posts.
1993 - The Northwest Territories is divided and the new Territory of
Nunavut is granted a seat in the Senate, bringing the maximum normal membership of the
Senate up to 105.
1996 - Bill C-28, the Lester B. Pearson International Airport Bill, is
defeated at third reading.
1998 - Bill C-220, the profit from authorship respecting a crime Bill,
is defeated at report stage.
2001 - Creation of the Standing Senate Committee on Human Rights and
of the Standing Senate Committee on Defence and Security.
7. Selected Bibliography of Books and Articles Relating to the
Beck, J. Murray, "The Canadian Parliament and Divorce", Canadian
Journal of Economics and Political Science, (August, 1957), pp. 297-312.
Bourinot, Sir J.G., Bourinots Parliamentary Procedure, ed.
T.B. Flint (Toronto: Canada Law Book Company, 1916).
Canada. Parliamentary Debates on the Subject of the Confederation of
the British North American Provinces, (Quebec: Hunter, Rose, 1865).
Dawson, R. MacGregor, The Government of Canada, revised by
Norman Ward (Toronto: University of Toronto Press, Fifth edition, 1970).
Driedger, E.A. "Money Bills and the Senate", Ottawa Law
Review, vol. 3:25, Fall, 1968.
Dunsmuir, Mollie, "The Senate: Appointments Under Section 26 of
the Constitution Act, 1867", Library of Parliament Research Paper, August,
Franks, C.E.S., The Parliament of Canada, (Toronto: University
of Toronto Press, 1987).
Forsey, Eugene A. "Appointment of Extra Senators under Section 26
of the British North America Act", Canadian Journal of Economics and Political
Science, xii, No. 2, May, 1946.
Heard, Andrew, Canadian Constitutional Conventions, (Toronto:
Oxford University Press, 1991).
Jackson, Robert J. And Doreen Jackson, Politics in Canada: Culture,
Institutions, Behaviour and Public Policy, (Scarborough: Prentice-Hall, 1990, Second
Kunz, F.A., The Modern Senate of Canada, (Toronto: University of
Toronto Press, 1965).
__________. "The Senate As A Parliamentary Institution".
Address of Professor F.A. Kunz (McGill University) to the Training and Development Seminar
for Senate Committee Clerks and Legislative Clerks, Ottawa, September 9, 1991.
MacKay, R.A. The Unreformed Senate of Canada, (revised and
reprinted, Toronto: McClelland and Stewart, 1963)
Massicotte, Louis and Françoise Coulombe, "Senate Reform", Library
of Parliament Research Paper, April, 1988.
Robertson, James R. "Rejection of bills by the Canadian
Senate". Library of Parliament Research Paper, November 5, 1990.
Senate of Canada, Report of the Special Committee appointed to
determine the Rights of the Senate in Matters of Financial Legislation, (Ross Report),
__________. Report on Certain Aspects of the Canadian Constitution,
__________. Major Legislative and Special Study Reports by Senate
Stilborn, Jack, "Senate Reform in the Post-Meech Lake Era - A
Backgrounder", Library of Parliament Research Paper, 1990.
1. Quoted in Robert A. MacKay, The Unreformed Senate of Canada,
revised and reprinted (Toronto: McClelland and Stewart, 1963), p. 38.
2. Robert Jackson and Doreen Jackson, Politics in Canada:
Culture, Institutions, Behaviour and Public Policy, Second Edition (Scarborough:
Prentice Hall, 1990), p. 365.
3. Kitchen, G. William, "The Abolition of Second
Chambers" in D.C. Rowat, Provincial Government and Politics, (Ottawa: Carleton
University, 1973), p. 61.
4. MacKay, op.cit., p. 36.
5. Ibid., p. 31.
6. Ibid., p. 31.
7. Quoted in Ross, Sir George, The Senate of Canada: Its
Constitution, Powers and Duties Historically Considered (Toronto: Copp, Clark, 1914),
8. Parliamentary Debates on the Subject of the Confederation
of the British North American Provinces, (Quebec: Hunter, Rose, 1865), p. 22.
9. Ibid., p. 186.
10. Ibid., p. 234.
11. Ibid., pp. 35-36.
12. Ibid., p. 373.
13. Ibid., pp. 88-89.
14. Regarding Section 26, Mollie Dunsmuir writes that when the Constitution
Act, 1867 was drafted, "there was considerable debate as to whether to
include a "deadlock provision" that would allow the government of the day to
appoint additional senators in case the Commons and the Senate should ever irreconcilably
differ. Sir John A. Macdonald, opposing the concept, argued that such a
"swamping" provision could destroy the independence and utility of the Senate.
At the London Conference of 1866, where the actual drafting took place, however, the other
delegates were divided on the issue.
The British government was adamant that a deadlock provision be
included, and so section 26 was eventually drafted and approved. The colonial delegates
insisted, however, that the additional appointments be regionally apportioned, that they
be strictly limited in number, and that the final decision rest with the Crown rather than
the government of the day. The British government accepted these restrictions, although it
expressed some concern about the last two". See "The Senate: Appointments under
Section 26 of the Constitution Act, 1867", Library of Parliament Research Paper,
August, 1990, p. 1.
15. Dawson, R. MacGregor, The Government of Canada, revised
by Norman Ward (Toronto: University of Toronto Press, Fifth edition), 1970, pp. 339-401.
For a review of the questions of privilege which have been raised in the Senate since
1867, see W.F. Dawson "Privilege in the Senate of Canada" (Library of Parliament
16. Driedger, Elmer A. "Money Bills and the Senate", Ottawa
Law Review, Vol. 3, No. 1 (Fall, 1968), pp. 40-41.
17. Quoted in S.D. Bailey, The Future of the House of Lords,
(London: 1954), p. 21.
18. Kunz, F.A., The Modern Senate of Canada (Toronto:
University of Toronto Press, 1965), p. 198. See also Coulombe, Françoise, "The
Value of a Bicameral Legislature: The Contribution of the Canadian Senate", Library
of Parliament Research Paper, Revised, February, 1979.
19. Kunz, op.cit., pp. 225-226.
20. Ibid., p. 214.
21. Robertson, James R., "Rejection of Bills by the Canadian
Senate", Library of Parliament Research Paper, November 5, 1990, pp. 3-4.
22. Kunz, op.cit., p. 233.
23. Coulombe, op.cit., p. 13.
24. Ibid., p. 3.
25. See MacKay, op.cit., p. 58 and Kunz, op.cit., pp.
26. MacGregor Dawson, op.cit., p. 286.
27. MacKay, op.cit., p. 34.
28. Ibid., p. 37.