How Quebec abolished its 'Senate' in one simple step

Quebec Justice Minister Bertrand St-Arnaud reacts to a Quebec Court of Appeal's decision to call a future senate reform unconstitutional, Thursday, October 24, 2013 at the legislature in Quebec City. (Jacques Boissinot / THE CANADIAN PRESS)

MONTREAL -- It was a case of political payola for the ages. A guaranteed salary for life, to two-dozen politicians, if they would perform the ultimate foolproof task: vote to stop working forever, and start collecting paycheques to stay at home.

That not-too-distant episode offers some relevant lessons today for Canada as the country wrestles with the future of its Senate.

History provides one recent precedent for the abolition of an upper chamber, with the 1968 bill that shut down Quebec's unelected Legislative Council.

Past attempts to kill it had failed. But the feat was finally achieved, 90 years after the first unsuccessful attempt. The key was a sweetening provision in the bill that offered councillors their $10,000 salary, every year, up until they ascended to that great trough in the sky.

"It was a high price," Rene Levesque, the future premier, later observed.

"But (it was) fully worth it."

Don't expect the Receiver General of Canada to whip out that chequebook and follow suit, just yet.

Canada's Senate is constitutionally much more difficult to reform, as will be made glaringly obvious this coming week when the Supreme Court hears arguments on the issue.

Unlike the Government of Canada, the Quebec legislature didn't need to worry about getting provinces' consent, or about maintaining regional balance within the federation, when it hatched its cash-for-life scheme.

So there are limits to drawing parallels with the payoff of 1968.

But the Quebec example is worth revisiting because it raises at least a pair of questions for anyone interested in Senate reform today: What does the upper chamber achieve? And do people miss it once it's gone?

As they designed the new country, the Fathers of Confederation envisioned the federal upper chamber as Parliament's brake pad, modelled on the British House of Lords. Blocking bad bills was just one of its key roles, with others including protecting minority and provincial rights.

In the provincial capitals, legislatures did without a second chamber or, in the case of Manitoba, New Brunswick and P.E.I., opted to dump them in the early days of Confederation. When Nova Scotia abolished its own upper body in 1928, the Quebec Legislative Council was left standing for four decades as the only remaining provincial upper house.

Quebec's 24-member council was seen as a vehicle for guaranteeing minority anglophone rights, with English-speakers traditionally overrepresented compared to their real demographic weight.

Which stirred some resentment. The old francophone newspaper Le Canadien once wrote of the institution: "It's a fortress placed on our territory in which an English garrison keeps our forces in check."

But according to a seminal study of the chamber, the deepest fault lines weren't actually linguistic. The late political scientist Edmond Orban wrote in a 1969 paper that Anglo-Protestants and Franco-Catholics in the council usually, if not always, protected each other's culture, voting for instance to support tax breaks for each other's religious institutions.

The real battles were economic.

In Orban's description, the upper house was dominated by the upper classes and was particularly forceful in its early days in blocking activist government -- especially of the pro-plebeian variety.

It blocked a 1906 bill to compensate the widows and orphans of workplace-accident victims. It blocked a tax on big-box stores. It helped topple the Liberal government in 1879. And in 1898 it shot down an attempt to create a department of education -- something Quebec would not achieve for another six-and-a-half decades.

"This contributed a lot, I believe, to the lamentable lag in public education in Quebec," said Universite Laval's Louis Massicotte, one of the few current political scientists to have closely studied the old chamber.

The chamber wielded clout in the early days.

Two early premiers emerged from that unelected body, as did nearly half the first cabinet, with three of Quebec's first eight ministers being plucked from its ranks.

It drafted more than one-fifth of the legislature's bills in the early years of Confederation and, depending on the year, it would block between seven and 15 per cent of the lower chamber's legislation, according to Orban's 1969 paper, "The End of Bicameralism In Quebec."

But the pendulum gradually swung the other way.

By 1916, it was drafting a mere three per cent of Quebec's legislation and it eventually allowed virtually all lower-chamber bills to pass. From a hostile, activist entity it came to be seen as something entirely different: useless.

So the Legislative Council died the death of 1,000 shrugs.

The government leader felt compelled to defend the chamber's legacy when it was abolished. Edouard Asselin decried the verbal abuse the chamber had taken from the elected politicians and the press, which he characterized as "low attacks and sarcasm."

He listed all the amendements to bills -- 1,074 of them, in total, from 1960 to 1967. He said the elected body had seen fit to reject only 12 of those amendments.

He also credited the chamber with one final, historical achievement in its later years: blocking the Fulton-Favreau plan which would have overhauled the constitutional amending formula long before Pierre Trudeau did.

"The services rendered to Quebec . . . were vital," Asselin said on the day the chamber was abolished. "For that alone, it seems to me that we might have expected a bit more appreciation and a bit less insults."

An editorial in Le Devoir newspaper opined in 1968 that the chamber could have eked out a longer existence for itself, by keeping its head low and avoiding involvement in the constitutional debate. The newspaper saluted its work to improve numerous bills over the years.

So do people miss an upper chamber, after it's gone?

A 2001 paper by Massicotte counted 17 jurisdictions that dumped their bicameral parliament, then brought it back, but he noticed one clear trendline: "No example has been found of a mature democratic country restoring a senate that had been abolished in normal circumstances following full debate."

New Zealand, Denmark, Sweden, the state of Nebraska, and some Canadian provinces might fit into that category.

Judging from the scant references to Quebec's old chamber on Google, any groundswell of nostalgia appears well-hidden from public view. In fact, Massicotte said that until The Canadian Press called him last week he couldn't recall ever being asked for an interview on the subject.

The physical chamber still exists today -- and it's lovely.

Known now as the national assembly's Red Room, it offers an appropriately ceremonial setting when cabinets are sworn in. It's where awards are handed out. Committees meet there. And it's where premiers might resign, the last one being Lucien Bouchard, who delivered his surprise departure address there on Jan. 11, 2001.

Visitors still marvel at the decor. But the institution it was built for has, in a relatively brief time, virtually vanished from the public memory.

"The type of Legislative Council we had -- nobody misses it," Massicotte said. "Minus the premiers perhaps who might have wanted to name their friends."

But going back to that original question, what would Canada lose without a Senate?

Has Quebec lost anything?

Without the benefit of a crystal ball, there's no certainty about what legislation it might have changed but two prominent possibilities spring to mind: Quebec's landmark language law and the current charter on religious values.

Given the vociferous Liberal opposition to the 1977 language law, Bill 101, it's entirely possible that the newly elected Parti Quebecois government would have been thwarted in a Liberal-dominated upper chamber. Public opinion be damned, the chamber might have scrapped Bill 101, diluted it or delayed it a few years until Levesque could stack the institution with fellow Pequistes.

Massicotte, for one, isn't pining for that parallel universe.

He points to three other, more effective mechanisms that already exist to block a politically popular law if it's deemed to violate the public interest: court challenges, referendums, and international sanctions.

It already happens at the federal level, where there is an upper chamber, and in Quebec, where there isn't. Even with different political systems, governments sometimes see judges shred their legislation.

Take Bill 101. Major parts of it were later struck down in successive court cases. English is now allowed on commercial signs, provided it's smaller than French. Canadian kids who arrive in the province are now treated like Quebec Anglos and allowed to enrol in English school.

And all bills must be published in both of Canada's official languages. So when the values charter was tabled last week as Bill 60 it was instantly published on the national assembly website, available to the public in English and French.

Each of those changes came from court decisions -- not from any activist, minority-protecting upper chamber.

"(The court system) can play the same role, at a lower cost," Massicotte said in an interview.

A glance at the media coverage from 1968 suggests that, even back then, few tears were spilled over the end of an era.

The opposition Liberals weren't especially exercised about the demise of the council. They were haggling over the price.

They were upset at the cost of the payoff, which amounted to $10,000 a year for regular councillors and $12,000 for ex-Speakers and caucus leaders in the Union Nationale-controlled chamber.

They wanted the buyout limited to regular pension rates of $3,400-$8,300, and calculated the cost of the Union Nationale plan at $1.25 million above the regular pension rate.

Liberal Leader Jean Lesage said: "This is an unjustified and unjustifiable gift. I can't vote for this."

But that's not even what most upset his troops about the bill.

Quebecers today might be surprised about what really angered the Liberals, and what arguably drew more media coverage -- another provision in the bill to rebrand the legislature with its current name, the Quebec "national assembly."

Only two-thirds of the elected legislature showed up for a key vote on Bill 90.

And while Quebec was undergoing its Quiet Revolution, other stories in that era's Montreal Gazette suggest that some changes have been coming more slowly.

Next to one story about the adoption of Bill 90 was the headline, "Beatle fined on dope rap." Marijuana still being illegal back then, John Lennon pleaded guilty to possession and was fined 150 pounds.

And just below the item on the upper-chamber abolition, on the Gazette cover for Friday, Nov. 29, 1968, was a separate piece on ideas to reform Canada's Senate.

A federal committee chaired by Sen. Hartland de Montarville Molson had recommended an end to appointments by party patronage; the cancellation of land-ownership requirements to sit in the Senate; and looser ties between senators and elected party caucuses.

That was 44 years, 11 months and a couple of weeks ago.

All these years later, Massicotte still wishes the Senate might be reformed. He points to the Australian upper chamber, elected by proportional representation, as an example that two democratic houses can co-exist productively in a bicameral parliament, aside from that country's constitutional crisis in 1975.

But he's not holding his breath for such reform in Canada.

"Let's just say that the years have made me a little doubtful," Massicotte said. Using a popular Quebecois expression, he added: "When you hear that something requires a constitutional amendment in Canada, that's a polite way of saying it's a week with four Thursdays."

He adds his own particular twist on the phrase "Triple-E" Senate -- the old idea that the chamber should be elected, effective and equal in representation for all provinces, an initiative that fell apart during the fruitless federal-provincial constitutional negotiations of the early 1990s:

"The (Canadian Senate) is Triple-I," Massicotte said in French.

"C'est inacceptable, irreformable et inabolissable."