THE SENATE: APPOINTMENTS UNDER
SECTION 26 OF THE CONSTITUTION ACT, 1867
Law and Government Division
TABLE OF CONTENTS
HISTORY OF SECTION 26
WHAT CIRCUMSTANCES CAN SECTION 26 BE INVOKED?
THE SENATE: APPOINTMENTS
UNDER SECTION 26
OF THE CONSTITUTION ACT, 1867
Section 26, 27
and 28 of the Constitution Act, 1867 provide for the appointment
of four or eight additional senators, upon the direction of the Queen.
Until September 1990, however, the power had never been exercised, and
questions have arisen as to when such additional appointments can be made
When the Constitution
Act, 1867 was drafted, there was considerable debate on 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
Prior to the recent
occurrence, there is only one documented case in which a prime minister
attempted to use section 26. In 1873, Alexander Mackenzie requested the
appointment of six extra senators, but the Colonial Secretary declined
to so advise Her Majesty. The Earl of Kimberley decided that section 26
was to be used only when there was a collision of opinion between the
two Houses of so serious and permanent a character that the government
was paralyzed or incapacitated. Additionally, it had to be at least possible,
and perhaps probable, that the extra appointments would resolve the problem.
Since section 26
was not used until 1990, the mechanics of the appointments are not entirely
clear. For example, none of the supplementary appointments can be from
Newfoundland or the Territories, as these are not included in the existing
divisions of the Senate. Appointments from Ontario would seem simple enough,
but appointments from the Maritime and Western Divisions are more problematic.
Assuming, for example, that new senators were to be appointed from New
Brunswick and Nova Scotia, what would happen if the next vacancy arose
in Prince Edward Island? Because of section 27, the Prince Edward Island
vacancy could not be filled until the Maritime Division had been reduced
to 24 members. Similarly, each Quebec senator represents one of 24 electoral
districts, and this could be difficult to reconcile with the appointment
of additional senators.
Finally, the issue
of additional senatorial appointments is complicated by the fact that,
at the insistence of the Canadian delegates to the London Conference in
1866, section 26 reserved the power of extra appointments specifically
to the Crown. Since the Statute of Westminster, 1931, however, the Queen
(or the Governor General acting in her stead) has been constitutionally
required to accept the advice of her Canadian Ministers. Consequently,
a power of appointment that was broadly phrased in the expectation that
the Queen would receive independent advice and act as the final arbiter
is now within the power of the prime minister of the day.
HISTORY OF SECTION 26
provisions surrounding the structure and powers of the Senate were not
taken lightly by the framers of Confederation. Indeed, one of the delegates
to the London Conference of 1866, at which the actual drafting of the
Constitution Act, 1867 took place, later stated that "this
question as to the constitution of the Senate occupied more time than
any other portion of the bill. [We] were fully a week in discussing it."(1)
Although the possibility
of a deadlock between the two Houses of Parliament was considered in the
negotiations between the colonies, no provision was made for the appointment
of extra members in the original Quebec Resolutions of 1864. These resolutions
were agreed to by representatives of five colonies -- Canada (Upper and
Lower), Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland
-- although only Canada followed through with legislative approval.
these original resolutions into the Legislative Assembly of Canada the
following year, John A. Macdonald, then Attorney General West, commented
at some length on the relationship between the two Houses:
in the Constitution, that the Legislative Council [Senate] shall consist
of a limited number of members, 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 partisans...
The objection has been taken that in consequence of the Crown being
deprived of the right of unlimited appointment, there is a chance
of a dead lock arising between the two branches of the legislature;
a chance that the Upper House being altogether independent of the
Sovereign, of the Lower House, and of the advisors of the Crown, may
act so independently as to produce a dead lock. I do not anticipate
any such result. In the first place we know that in England it does
not arise. 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,
and preventing any hasty or ill-considered legislation which may come
from that body, but it will never set itself in opposition against
the deliberate and understood wishes of the people(2)
rested his case on the unlikelihood of a deadlock, it is also possible
that the decision not to allow additional appointments under any circumstances
was influenced by the dangers of upsetting the delicate balance between
regional, linguistic, and sectarian interests in the proposed composition
The first reference
to a provision allowing for the appointment of extra senators in case
of deadlock seems to be in a letter to Governor General Monck, late in
1864, commenting on the Quebec Resolutions: "Her Majestys Government
are anxious to lose no time in conveying to you their general approval
of the proceedings of the Conference. There are, however, two provisions
of great importance that seem to require revision."(3)
One of these is the constitution of the Legislative Council: "if
the Members be appointed for life, and their number be fixed, [will there]
be any sufficient means of restoring harmony between the Legislative Council
and the Popular Assembly."(4)
appears to have been the British government that insisted on some mechanism
for breaking a possible deadlock between the two Houses. During a later
debate in the Senate, Mr. R.D. Wilmot, one of the New Brunswick delegates
to the London Conference in 1866, gave a detailed description of negotiations
surrounding section 26.(5)
The delegations from the colonies were narrowly divided upon whether a
deadlock provision should be added to the Constitution. Three times the
delegates adhering to the Quebec scheme prevailed, and three times the
Chairman of the Conference (Sir John A. Macdonald), so informed Lord Carnarvon.
Three times Lord Carnarvon, the Colonial Secretary, stated his preference
for a deadlock provision. Finally, amidst considerable debate, the delegates
adopted "the 26th clause as a safety-valve in the event of a deadlock."(6)
Aside from the
dispute over the principle involved, there was also discussion as to the
exact form the safety-valve should take. Nova Scotia and New Brunswick
in particular were concerned that additional appointments might allow
Upper Canada to swamp the other provinces. The solution was to provide
that additional appointments must be made equally from the three divisions:
Ontario, Quebec and the Maritimes. Even this did not allay Quebecs
concerns, however, since one senator was supposed to be appointed from
each of the 24 electoral divisions of Lower Canada:
If you give
power to swamp the Legislative Council then you destroy its utility.
Lower Canada insists that each of its present divisions shall have
a representative in the Council, that is the existing divisions. If
you give power to the Central Government to increase the number you
change the proportions. This has been settled to the satisfaction
of Roman Catholics and Protestants, British and French.(7)
In early January
1867, the delegates made a new proposal. Additional appointments to the
Senate could be made, provided that they were made equally from the three
sections of Canada, when the Senate rejected a money bill once, or any
other bill three times, provided that at third reading in the Commons
an absolute majority of members from two out of the three sections had
voted in favour of the bill.(8)
In a memo to the
British Cabinet, Lord Carnarvon noted two other conditions added by the
delegates: that the appointments should be made by the Crown, rather than
the Governor General; and that their number should not exceed six. He
added that "the intervention of the Crown is to my mind a doubtful
proposal: but it is designed to be a check upon popular feeling and the
action of the Local Government and I do not see that we can take exception
to it."(9) Accordingly,
the third draft of the British North America Bill reads as follows:
16. If any
Money Bill passed by the House of Commons is rejected by the Senate
for any one Session, or if any other Bill passed by the House of Commons
is rejected by the Senate on three consecutive occasions, and if in
such case or cases the Governor-General shall ascertain that such
Bill or Bills has or have been carried by the majority of voices from
two out of the three divisions of the Kingdom, then and in such case
it shall be lawful for Her Majesty to create additional Members of
the Senate, preserving the rule of equality between three Divisions
of Upper Canada, Lower Canada and the Maritimes.(10)
The next section
provided that, when the number of senators had been so increased, no further
apointments to any division would be made in the normal course of events
until that division had again dropped to 24 members.
The Fourth Draft
of the bill simplified the provisions for the appointment of additional
20. On the
application of the Government of Canada, Her Majesty in Council may
from time to time sanction an appointment of additional Senators,
so as that the whole number shall in no case exceed seventy-eight,
the proportion allotted to each of the three divisions being preserved.
In case of vacancies after any such increase above seventy-two; no
appointment shall be made without the sanction of the British Government
till the whole number is reduced below seventy-two.(11)
The final form
of the deadlock provisions in the Constitution Act, 1867 was as
26. If at any
Time on the Recommendation of the Governor-General the Queen thinks
fit to direct that Three or Six members be added to the Senate, the
Governor-General may by Summons to Three or Six qualified Persons
(as the Case may be), representing equally the Three Divisions of
Canada, add to the Senate accordingly.
27. In case
of such Addition being at any Time made the Government General shall
not summon any Person to the Senate except on a further like Direction
by the Queen on the like Recommendation, until each of the Three Divisions
of Canada is represented by Twenty-Four Senators and no more.
28. The Number
of Senators shall not at any Time exceed Seventy-Eight.
The British government
presumably remained less than happy, both with the involvement of the
Crown and with the limited number of extra appointments, but the compromise
appeared to be the best solution available. In introducing the British
North America Act in the British House of Lords, Lord Carnarvon
will be nominated by the Governor General in Council for life. But
as it is obvious that the principle of life nomination, combined with
a fixed number of members, might render a difference of opinion between
the two Houses a question almost insoluble under many years, and might
bring about what is popularly known as a legislative dead-lock, a
power is conferred upon the Crown -- a power, I need not say, that
would only be exercised under exceptional and very grave circumstances
-- to add six members to the Senate, subject to the restriction that
those six members shall be taken equally from the three sections,
so as in no way to disturb their relative strength, and that the next
vacancies shall not be filled up until the Senate is reduced to its
normal number. It may, perhaps, be said that the addition of six members
will be insufficient to obviate the legislative discord against which
we desire to provide. I am free to confess that I could have wished
that the margin had been broader.(12)
As Canada grew,
the carefully crafted compromise on the deadlock provision required amendment
to allow for the addition of new provinces. The original Act of 1867 had
made provision for the number of senators allocated to Newfoundland and
Prince Edward Island in the event of their later admission to the Union,(13)
but had not made provision for the western provinces. Prince Edward Island
was to have four senators and be included in the Maritime Division, with
Nova Scotia and New Brunswick each giving up two seats so that the total
representation of the Maritime division remained at 24. Newfoundland also
was to be allocated four senators but was not included in any division.
According to Sir John A. Macdonald:
It has, comparatively
speaking, no common interest with the other Maritime Provinces, but
has sectional interests and sectional claims of its own to be protected.
It, therefore, has been dealt with separately, and is to have a separate
representation in the Upper House, thus varying from the equality
established the other sections.(14)
When Manitoba was
formed in 1870, it was given two members in the Senate, with provision
for two additional senators as the population grew. British Columbia joined
Canada in 1871 with three senators. Alberta and Saskatchewan entered Confederation
in 1905 with four members each, and a provision for adding two more each
after the next census. Finally, in 1915, Parliament rationalized western
representation in the Senate by a constitutional amendment. Each of the
four western provinces was to have six members in the Senate, forming
a western division of 24 to parallel the Ontario, Quebec and Maritime
divisions.(15) The number
of existing senators was therefore increased from 72 to 96.
Because there were
now four divisions instead of three, the number of senators who could
be appointed under section 26 became four or eight, rather than three
or six. The wording of section 27 was also changed slightly to state that,
if additional senators were appointed, no new senators could be summoned
to represent a division until the size of that division had been reduced
The number of senators
to which Newfoundland was entitled upon admission to Confederation was
raised from four to six, so that the total number of senators provided
for by the Constitution Act, 1867, as amended, became 102. The
maximum number allowable if section 26 were used became 110.
In 1975, the Constitution
was again amended to provide for the appointment of one senator each to
represent the Yukon and Northwest Territories.(16)
There have been no further amendments affecting the constitution of the
Senate, and the limits on the number of senators remain as follows:
21. The Senate
shall, subject to the Provisions of this Act, consist of One Hundred
and four Members, who shall be styled Senators.
28. The Number
of Senators shall not at any time exceed One Hundred and Twelve.
There are four
divisions of the Senate: Ontario; Quebec; the Maritime provinces of Nova
Scotia, New Brunswick and Prince Edward Island; and the Western provinces
of Manitoba, British Columbia, Saskatchewan and Alberta. Section 26 allows
for one or two additional members to be appointed from each division if
the Queen, on the recommendation of the Governor General, thinks fit.
Once these appointments are made, no further appointments can be made
to any of the four divisions until that division has been reduced through
attrition to its normal complement of 24.(17)
WHAT CIRCUMSTANCES CAN SECTION 26 BE INVOKED?
In 1873, the Macdonald
government resigned over the Pacific Scandal and the Mackenzie government
took office on 2 November 1873. Mackenzie prorogued Parliament the same
day, and dissolved it on 2 January 1874. On 22 January 1874, the Mackenzie
Liberals were returned with a resounding majority.
Meanwhile, in late
December 1873, Mackenzie and his Cabinet advised the Governor General
to recommend to the Queen that six extra senators be appointed. The request
seems to have been accompanied by a memorandum from the Prime Minister
outlining the reasons for the request.(18)
Mackenzie described the purpose of section 26 as "a way to avoid
possible complications or inconveniences by giving some elasticity to
the system." He refers to the pre-Confederation agreement between
the leaders of the two political parties that each party should nominate
half of the original senators, and observes that 29 of the 31 senators
appointed since 1867 were on the Conservative side.
did not go so far as to argue that Senate appointments must maintain the
principle of equal representation between the parties, he felt it was
important to prevent an impression that the Senate was "too much
the creation of the Administration of the day." Because of the disparity
of the Macdonald appointments, "a sufficiently clear case [had] been
established to justify the application of the counterpoise provided by
the Constitution." Additionally, the extra appointments would ensure
that government measures were effectively advocated in the Senate.(19)
The Governor General,
Lord Dufferin, forwarded the request to Lord Kimberley, the Secretary
of State for the Colonies, on 26 January 1874, immediately after it became
clear Mackenzie had won the election. On 18 February 1874, Lord Kimberley
replied that he could not advise Her Majesty to direct the additional
appointments. He noted that the "question was of considerable importance,"
but felt that the intention of the framers of section 26 was that the
power of extra appointments should "be vested in Her Majesty in order
to provide a means of bringing the Senate into accord with the House of
Commons in the event of a collision of opinion between the two Houses."
Consequently, Her Majesty could be advised to use it only when "a
difference had arisen between the two Houses of so serious and permanent
a character, that the Government could not be carried on without Her intervention,
and when it could be shown that the limited creation of Senators allowed
by the Act would apply an adequate remedy."(20)
There the matter
apparently would have rested, since the correspondence was not public,
except for a chance remark by the Governor General in the summer of 1876.
On a visit to British Columbia, Lord Dufferin found considerable fault
with Canada. There had been delays in the construction of the Pacific
Railway, and a bill to provide for the Esquimault and Nanaimo Railway
in compensation had been defeated in the Senate. In an attempt to assure
British Columbians that the government had made every effort to have the
Esquimault and Nanaimo bill passed, Lord Dufferin made the following statement,
which was widely reported in the press:
I saw Mr. Mackenzie
the next day [after the defeat of the bill], and I have seldom seen
a man more annoyed or disconcerted than he was. Indeed he was driven
in that interview to protest with more warmth than he has ever used
against the decision of the English government which had refused,
on the opinion of the law officers of the Crown, to allow him to add
to the numbers of the Senate.(21)
were introduced in both the House and the Senate requesting the production
of all correspondence relating to this request for additional senators.
the documents in question, the Conservative majority in the Senate was
not prepared to let the matter lie. On 19 March 1877, the Senate passed
a resolution expressing "its high appreciation of the conduct of
Her Majestys Government in refusing to advise an Act for which no
Constitutional reason could be offered." In addition, the Senate
recorded its opinion on the appropriate use of section 26:
was only intended to be exercised upon the occurrence of some grave
political emergency, and with a view to the removal of serious differences
which should actually have arisen between the Senate and the other
House of Parliament, and are not susceptible of satisfactory adjustment
by any other means; and
to the Senate under the provisions of the 26th clause of the British
North America Act which is not absolutely necessary for the purpose
of bringing this House into accord with the House of Commons, in the
event of an actual collision of a serious and permanent character,
would be an infringement of the constitutional independence of the
Senate, and lead to a depreciation of its utility as a constituent
part of the Legislature.(22)
This appears to
be the last official documentation relating to the purpose and appropriate
use of section 26.(23)
agree that section 26 was intended to be used only in the event of a serious
deadlock between the Houses.(24)
In the event of such a collision of wills, it was to be for the Crown
to decide whether the circumstances involved justified invoking the deadlock
Mackenzie tried an alternative approach to section 26 in 1873, when he
asked the Queen to appoint six extra senators on the grounds that the
provision was designed only to "find a way to avoid possible complications
or inconveniences by giving some elasticity to the system." Lord
Kimberley, the Colonial Secretary, rejected the request, following the
narrower and more traditional interpretation.
However, at least
three factors make a modern interpretation of section 26 more difficult
than the legislative history would suggest. Foremost is the constitutional
evolution of Canada, whereby the Crown has been reduced to a constitutional
figurehead acting on the advice of Her Canadian Ministers. When section
26 was drafted, those delegates who did not want a deadlock provision
lest the government should swamp the Senate seemed to have compromised
with the idea of the Crown as an ongoing arbiter. With that arbiter removed,
the concept of an objective third party to mediate between the Commons
and Senate, as envisaged by the delegates to the London Conference, no
Second, the wording
of section 26 is very broad and, unlike an earlier draft, contains no
clear test of when the power of appointment can be invoked. Presumably,
the delegates felt that no clear test was necessary since the ultimate
power was in the hands of the Crown and, as Lord Kimberley stated in 1874,
the Queen would interfere only in the most serious circumstances. On the
face of the section, however, a prime minister can invoke the power at
section 26 is constitutional law, it comes very close to concepts more
usually associated with constitutional convention. Eugene Forsey, in what
remains the most extensive article on section 26, suggests that the power
to appoint additional senators involves principles and conventions that
"still have to be worked out, and they will have to be worked out
without much help either from our own or British history."(25)
He notes, for example,
that there are times when a Governor General would be entitled to reject
even a usual Senate appointment, for example, where a government defeated
at the polls tried to fill Senate vacancies before the new government
took office. He also suggests that there are times when a government would
clearly be entitled to make section 26 appointments in the absence of
any conflict with the Senate, such as where a government were elected
with no Senate representation.
Regardless of those
comments, it seems clear that the original intent of section 26 was to
provide a "deadlock" mechanism in the event of an irreconcilable
clash of wills between the two Chambers. The fact that no such clash occurred
in the first 120 years following Confederation invalidates neither the
purpose nor the use of section 26 in the appropriate circumstances.
Senate, Debates, 19 March 1877, p. 202 (Mr. Wilmot).
Canada, Legislature, Parliamentary Debates on the Subject of Confederation,
Hunter, Rose & Co., Quebec, 1865, p. 36.
G.P. Brown, ed., Documents on the Confederation of British North America,
The Carleton Library No. 40, McClelland and Stewart, Toronto, 1969, p.
171. The first problem mentioned concerns the Crowns prerogative
Senate, Debates, 19 March 1877, p. 203-204.
Ibid., p. 203.
Brown (1969), p. 212.
Ibid., p. 263.
Ibid., p. 264.
Ibid., p. 268.
Ibid., p. 283.
Quoted by Senator MacPherson in Senate, Debates, 19 March, 1877,
p. 215-216. Lord Carnarvon also notes, as did Sir John A. Macdonald in
the 1865 Debates, the potentially high turnover of senators, even with
lifetime appointments: in 1856 there were 42 nominated or life members
of the pre-Confederation Legislative Council of Canada who answered to
the call. By 1862, only 25 were left, and according to Sir John, by 1864
only 21. This suggestion that "six additional members... supplemented
by so large and so regular a change in the constitution of the Senate
[may be enough] to maintain the legislative harmony of the two Houses,"
does not seem to have been adopted with any enthusiasm by either side
in the Senate debates.
Constitution Act, 1867, s. 147.
Parliamentary Debates, 1865, p. 35.
Constitution Act, 1915, 5-6 Geo. V., c. 45 (U.K.) Act. Section
22 of the Constitution Act, 1867, as amended, creates the Divisions
of the Senate.
Constitution Act (No.2), 1975, S.C. 1974-75-76, c. 53.
Section 27 envisages the possible re-use of section 26 provided the number
of senators does not exceed 112. The circumstances under which this could
take place are, however, obscure.
The circumstances surrounding the request and the accompanying documents
are fully dealt with by Eugene Forsey in two articles: "Alexander
Mackenzies Memoranda on the Appointment of Extra Senators, 1873-4,"
27 Canadian Historical Review (1946), p. 189-194; and "Appointment
of Extra Senators under Section 26 of the British North America Act,"
12 Canadian Journal of Economics and Political Science (1946),
When the issue was later debated, the Conservatives argued that six or
seven of some 32 post-Confederation appointments had been Liberal (Senate,
Debates, 19 March 1877, p. 210).
Senate, Journals, 1877, p. 77.
House of Commons, Debates, 1 March 1877, p. 371.
Senate, Journals, 19 March 1877, p. 130; see also Senate, Debates,
19 March 1877, p. 194.
A.B. Keith suggests that Sir Wilfred Laurier may have informally inquired
whether he could make extra appointments, but does not give a source for
the information: "Sir Wilfred would have liked to have the deadlock
provisions put in force, but his tentative inquiry in England in 1900
satisfied him that he would not be accorded this favour." Responsible
Government in the Dominions, Clarendon Press, Oxford, 1928, Vol. I,
For example, W.R. Riddell, The Canadian Constitution in Form and Fact,
Columbia University Press, New York, 1923, p. 24; J.G. Bourinot, Parliamentary
Procedure and Practice, Dawson Brothers, Montreal, 1892, p. 141; A.B.
Keith, Imperial Unity and the Dominions, Clarendon Press, Oxford,
1916, p. 392; R. MacGregor Dawson, Democratic Government in Canada,
University of Toronto Press, Toronto, 1949, p. 63.
Forsey, "Appointment of Extra Senators under Section 26..."
(1946), p. 166.