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THE SENATE (i). 21. The Senate shall, subject to the provisions of this Act (ii), consist of seventy-two members, who shall be styled
Senators. (i) “ The Senate.”-Strange as it may appear, a perusal of the debates on the Confederation Resolutions discloses that no question was raised as to the usefulness or uselessness of an Upper House. The bi-cameral system would seem to have been at that time universally favored, so far at least as the constitution of the Dominion government was concerned. To the delegates to the Quebec Conference of 1864, two examples of an Upper House presented themselves—the English House of Lords, and the United States Senate. The position of the former in the English constitutional system is very clearly defined by Bagehot:
“Since the Reform Act, the House of Lords has become a revising and suspending House.
Their veto is a sort of hypothetical veto. They say, we reject your bill this once, or these twice, or even these thrice, but if you keep on sending it up, at last we won't reject it."
The House of Lords, too, is possessed of judicial functions of a certain sort, but it is manifest that, both historically and in actual practice, the House of Lords is in no sense a federal element in the Imperial scheme of government, that in no way does it stand out as the guardian of colonial rights. The U. S. Senate on the other hand was instituted as a part of the federal scheme, for the very purpose of protecting “state rights," and to that end, each state, large or small, is entitled to two senators and no more. Fathers of our Confederation, the Senate of Canada was announced as answering both purposes ; as affording a check on hasty or ill-digested legislation, and also as protecting local interests and the autonomy of the provinces. The attainment of the former purpose was supposed to be
inade secure by the mode of appointment, the life tenure of the senators being held out as a guarantee for independence in the exercise of their legislative duties; while the equal representation, in the Senate, of each of the distinctly differentiated portions of the Dominion would make that body the guardian of “ provincial rights,” or at least of local, as distinct from general, interests.
• 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, having different interests, in this proposed Confederation. We have Western Canada, an agricultural country far away 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 wliichi slie 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 members.
The provision that each of the great sections shall appoint twenty-four members and no more, will prevent the Upper House from being swamped from time to time by the ministry of the day, for the purpose of carrying out their own schemes or pleasing their partizans. The fact of the government being prevented from exceeding a limited number, will preserve the independence of the Upper House, and make it, in reality, a separate and distinct chamber, having a legitimate and controlling interest in the legislation of the country. There is this additional advantage to be expected from the limitation. To the Upper House is to be confided the protection of sectional interests ; therefore it is that the three great divisions
are there equally represented for the purpose of defending such interests against the combination of majorities in the Assembly. It will, therefore, become the interest of each section to be represented by its very best men, and the members of the administration who belong to each section will see that such men are chosen, in case of a vacancy in their section. For the same reason, each State of the American Union sends its two best men to represent its interests in the Senate.”—Per Sir John A. Macdonald, in Confed. Deb. p. 35, et seq.
The Senate of Canada exercises no judicial functions akin to those exercised by the House of Lords and, to a smaller extent, by the U.S. Senate; nor has it any executive functions like those exercised by the U.S. Senate in “ executive session,” in relation to treaties and appointments to office. Its functions are purely legislative.
In the light of subsequent developments, the criticism of Mr. Dunkin, upon this part of the scheme of Confederation, reads like a prophecy. Wanting in the characteristics which, to some extent, uphold the exercise of authority by the House of Lords as a “dignified” part of the constitution (q), the revising and suspending functions of our Senate are a myth and, in practice, are limited to rejecting bills which the government desire to see defeated but do not like to oppose in the popular chamber; and, wanting as its members are in any distinctly different character, aims, and interests from those of the members of the popular chamber, and appointed, too, as they are, not by the provincial legislatures, but by the Dominion government, they are as strongly and continuously party men as are the members of the House of Commons, and they divide on party, not on provincial or sectional, lines. Such federal element as exists at all in the constitution of the Dominion government, is in the distribution of portfolios in the cabinet, as Mr. Dunkin predicted it would be. With the entry of Manitoba, British Columbia and the North West Territories into
(9) See Bagehot, p. 89, et seq.
the Dominion, all attempt to continue the principle of equal representation was abandoned in favor, practically, of representation by population, so far at all events as the new territories were concerned. Upon the passage of an Act forming a new province, such Act at once passes beyond the competence of the Dominion parliament, and the representation allowed such new province in the Senate is thereafter incapable of increase or decrease except by Imperial legislation (r). The representation of the province of Manitoba in the Senate is now three, with a maximum limit of four. Upon the admission of Prince Edward Island, the provisions of section 147, post, took effect; and that province is now represented by four Senators. Upon the admission of British Columbia, the representation of that province in the Senate was fixed at three. By the B. N. A. Act, 1886, the Dominion parliament is empowered to make provision for the representation, in the Senate, of any territories which for the time being form part of the Dominion and are not included in any province thereof; and, pursuant to the power granted by that statute, the North West Territories have been given two Senators. There is this peculiarity about the position of the North West Territories—that the number of Senators, who may be appointed to represent that district, is a matter entirely for the Dominion parliament, so that it is in the power of the Dominion government to swamp the Senate, so long as the additional members are appointed to represent the North West Territories. The original design has, however, left this mark upon our system, namely, that Ontario, Quebec, and the Maritime Provinces are still tied down to equality of representation in the Senate, irrespective of differences in population, and any alteration of our constitution in this particular must be by Imperial Act. But it only requires an enumeration of the number of Senators to which each province is entitled, to show that the position of the Senate as a guardian of local interests has entirely vanished.
(1) B. N. A. Act, 1871, sec. 6; see post, Part IV.
tion of Pro
(ii) “Subject to the provisions of this Act.”—See sections 26 and 27, post, and notes thereto. This Act must now be construed as one with the B. N. A. Acts, 1871 and 1886. See section 3 of the latter statute. We have referred in the last note to the provisions of these statutes, both of which will be found printed in full and further discussed in Part IV. of this work. Representa
22. In relation to the constitution of vinces in
the Senate, Canada shall be deemed to
1. Ontario ;
3. The Maritime Provinces, Nova Scotia and New Brunswick; which three divisions shall (subject to the provisions of this Act) be equally represented in the Senate as follows : Ontario by twentyfour Senators; Quebec by twenty-four Senators; and the Maritime Provinces by twenty-four Senators, twelve thereof representing Nova Scotia, and twelve thereof representing New Brunswick.
In the case of Quebec (ii) each of the twenty-four Senators representating that Province shall be appointed for one of the twenty-four Electoral Divisions of Lower Canada specified in Schedule A. to chapter one of the Consolidated Statutes of
Canada. (i) “ Three livisions.”—See note (i) to section 21 ante, p. 269 et seq.
(ii) “ In the case of Quebec.”—This sub-section reveals a federal scheme within a federal scheme. See also section