Section 23 of the Constitution Act, 1867, sets out the qualifications for those “persons” who may be “summoned” to the Senate. Subsection (5) requires that they “be resident in” the province. The wording is important. It does not say “have a residence in” but rather “be resident in” the province. And any dictionary will define the adjective “resident” as “living in, dwelling in” and many will add “for a long period of time,” “permanently” and so forth.
In other words, Senators have to live “at home” in the province for which they are appointed.
The reason for this lies in the history of our Constitution. The Confederation “exercise” was promoted mainly to solve problems in what, from 1841 to 1867, was “The United Province of Canada,” (itself a “solution” to problems which provoked revolutions in Upper and Lower Canada in 1837). Following some of the recommendations of the Earl of Durham, (briefly Governor General in the wake of the rebellions) the British Government forced a shotgun wedding of what is now Ontario and Quebec into a legislative union.
It was not a happy marriage. The French viewed it as a way of forcing them to become English, and this fear of assimilation would define French behaviour throughout the 26-year history of the United Province — and beyond.
This fear was not unfounded, since Durham had recommended the legislative union as a means to force the French to become “British” subjects. But the Imperial Government was not prepared to go as far as Durham had recommended — the complete fusion of Upper and Lower Canada into a single entity. Shadowy outlines of the former provinces remained, even in the names, “Canada East,” “Canada West” for each section. Most important, there was an actual protection for the French in that each “half” was guaranteed the same number of seats in the new legislature. Representation did not track population growth. The most that could happen was a rise in the total number of seats if the population grew. Each “Canada” would continue
to have exactly half of that number, regardless of where the population increase occurred.
There were two effects of this. One was French control of the legislature. Very early on, the Quebecois learned that if they elected a large, cohesive bloc of members in “Canada East,” they could ally themselves with a “partner” in “Canada West”— even if this “partner” had a small number of seats — and control the legislature. Only when the “French bloc” began to fragment, in the latter years of the province, did this control fall apart — and with it any governing majority.
The second effect was a growing aversion in the “growing” western section to the equal division of seats. A small party called “The Clear Grits” had, as its marching anthem, the principle “Rep by Pop.” Now, this is exactly what we currently take for granted, namely, that representation in the legislature is based on population. If population grows in one area, there should be greater representation, and vice-versa.
But it was a relatively new idea in the 1850s.
George Brown, publisher of the Globe newspaper, took over the principle (and, effectively, the Clear Grit party). Brown was one of the prime movers of the push toward Confederation and one of the things he wanted out of the process was “Rep by Pop” in the Parliament which the Confederation exercise would create.
But as much as Brown wanted “Rep by Pop”, the Quebecois feared it, believing that it would accomplish Durham’s goal of assimilation. Their representatives at the Quebec and London Confederation Conferences knew that they were going to have to concede “Rep by Pop” in the Lower House of the new Parliament, so they focussed their efforts on the Upper House.
While the American principle of equality of individual “state” representation was rejected, the Quebec conference accepted a scheme of equal “regional” representation. And since Quebec was to be one of the three regions, it achieved a guarantee of significant representation in the Upper House.
However, simply achieving a guarantee of one-third of the Senate seats would not have provided the full protection the Quebecois desired if another Parliamentary “principle” had been allowed to function.
It had never been required that candidates for seats in the House of Commons actually live in the ridings they sought to represent. So, in addition to a guarantee of equality of representation, there had to be a guarantee that Senators could not be parachuted into Quebec from Ontario — or elsewhere.
For Quebec specifically, there were provisions in the Quebec Resolutions (article 16) and the London Resolutions (article 17), which required “Legislative Councillors” (the term “Senator” appeared in the final draft) to be appointed to represent one of 24 electoral divisions and “such Councillor shall reside or possess his qualification in the division he is appointed to represent.”
But even generally, the Founders had seen local residence as the qualifying characteristic for Councillors. In the Quebec resolutions, they had proposed that “The first selection of members of the Legislative Council shall be made . . . from the Legislative Councils of the various provinces” (article 14). By the time they met at London, however, they did not think this went far enough, so they provided that “The Members of the Legislative Council shall be appointed . . . from among residents of the Province for which they are severally appointed . . .” (article 12)
While this clear statement would have constituted the Founders last words on the subject, because this was a British Act of Parliament, their text was subjected to the revisions of Sir Francis Reilly, the Imperial Parliamentary draftsman, who managed to obscure their clarity in much of the final draft of the Constitution, and it was almost certainly he who produced “must be resident in the province.”
Needless to say, “be resident” means “be among the residents of the Province.” Or put in another way, the Constitution requires Senators to “live at home,” and the appointment of anyone who is not actually resident is unconstitutional.
By David Bulger
David M. Bulger, Adjunct Professor (Retired) of political science, UPEI