The Senate of Canada building and Senate Chamber in Ottawa on Feb. 18, 2019.Sean Kilpatrick/The Canadian Press
The increasing likelihood of a majority Conservative government following the next election has led to escalating speculation over how the Senate might respond.
Will the unelected Senate, stuffed to the rafters as it is with the current Prime Minister’s appointees, have the nerve to defeat bills passed by the elected House of Commons, or to use the threat of defeat to force amendments upon it? Are we headed for some sort of constitutional crisis?
Answer: if history is any guide, yes of course.
The Fathers of Confederation intended the Senate to be weak: that is, famously, why they made it an appointed body. Lacking a democratic mandate, Senators would be obliged to mind their place, averting the prospect of deadlock with the lower house.
While on paper the Senate had the power to defeat any bill, the expectation, as Sir John A. Macdonald himself put it, was that it would “never set itself in opposition against the deliberate and understood wishes of the people.”
It didn’t quite work out that way. Through the first 19 Parliaments of our history, covering the period from 1867 to 1945, the Senate killed a total of 119 bills sent up to it by the Commons, either directly or by amending them in ways the Commons found unacceptable. Another 85 bills died in the Senate, having failed to come to a final vote before Parliament was dissolved or prorogued. At least some of these deaths would have been deliberate, the bills stalled just long enough to ensure they never passed – the Senate’s “pocket veto,” commonly used to euthanize private members’ bills but also deployed from time to time against government bills.
Notably, the number of defeated bills spiked each time there was a change of government. The Conservative-dominated Senate greeted the election of Alexander Mackenzie’s Liberals in 1874 by defeating eight of their bills. Likewise after the election of the first Laurier government, in 1896: 19 bills were defeated in that Parliament. And in the 1921 Parliament, the first to be led by Mackenzie King: 14 bills rejected.
Only after the Second World War did the Senate settle back into the role the Fathers had designed for it. Since 1945, a mere handful of bills passed by the Commons have been defeated in the Senate: among them, a 1961 bill (ahem) declaring the office of the Governor of Bank of Canada vacant; the Kim Campbell abortion bill in 1991 (killed, infamously, by a tied vote); and a private member’s bill committing Canada to the provisions of Kyoto accord, passed over the Harper government’s objections in the minority Parliament of 2010.
Still, those are some pretty weighty issues to be decided in such a flagrantly undemocratic way: not by a vote of the people’s elected representatives, but by a clutch of partisan appointees of uncertain distinction. So far as it has declined to defeat bills outright, moreover, the Senate has found other ways to get up to no good – especially after the election of the Mulroney government in 1984, after decades of near-unbroken Liberal hegemony.
The Liberal Senate, for example, refused to vote on legislation enacting the GST, forcing Brian Mulroney, via a rarely invoked prime ministerial prerogative, to add another eight senators to the Senate’s capacity to see it through. A similar Liberal blockade of the free-trade bill was resolved only after the intervention of the 1988 election.
It was around that time, too, that the Senate began forcing amendments to legislation in greater numbers. Eighteen bills were successfully amended during that first Mulroney government, half as many as in the nine previous Parliaments combined.
The pocket veto, after a long period of relative disuse – from 1945 to 1984 just 12 bills met that fate – has also lately came back into vogue, especially after the election of the first Harper government in 2006.
So let’s just say that there is some precedent for an incoming government to face opposition in the Senate. Still, there is reason to think that this time might be worse – possibly much worse.
There is, first, the question of numbers. The combination of his own long tenure and the unusual number of vacancies bequeathed to him by Stephen Harper – 22, a fifth of the Senate – has allowed Justin Trudeau to stamp the Upper House in his own image, to a degree unmatched by any previous prime minister.
Fully 70 of the Senate’s current roster of 96 were appointed by Mr. Trudeau. Should he stay on until the next election, officially scheduled for October, 2025, he will have the opportunity to add 17 more names to that total – eight to replace previous prime ministers’ appointees as they retire, plus nine to fill current vacancies.
Add three holdovers from the Jean Chrétien era, and that would leave Prime Minister Pierre Poilievre facing a Senate of whom 90 senators out of 105 were appointed by a prime minister of another party.
Ah, but these are not partisan Liberals now, are they – not after Mr. Trudeau, shortly after becoming Liberal Leader, ostentatiously kicked the Liberal Senators out of his caucus, and not after the introduction of the current “independent, merit-based” process of selecting senators, replacing the prime ministerial finger with an arms-length advisory board, even if the final decision remains up to him.
Senators now sit, not as members of known political parties – but for the 13 remaining members of the Conservative Senate caucus – but as “non-affiliated” or as members of various non-party “groups”: the oxymoronic Independent Senators Group, the Canadian Senators Group, and the Progressive Senate Group.
But who’s kidding whom? The best guide to the ideological or partisan leanings of senators remains the prime minister that appointed them. The ISG and the PSG are almost entirely Liberal appointees; the CSG, a mix of Liberal and Conservative. Mr. Trudeau’s appointees, in particular, may not be partisan Liberals, but they are overwhelmingly from Liberal backgrounds, with reliably progressive views.
But still: they are all nominally non-partisan! As are the senators who left the Conservative and Liberal caucuses, either to sit as independents or as members of one of the other groups. We have already had a taste of what this means. In the aftermath of the Trudeau reforms, Senators became noticeably nervier about defeating government bills, or at least threatening to.
No longer Liberals or Conservatives, but appointed – so even those appointed under the previous system came to believe – solely on their personal merits, they began to act as if in answer to a higher calling than partisanship, a higher calling even than democracy. They may not have had a mandate from the people, but they had something else, something better: the mandate of virtue.
And so during the first Trudeau government, we saw a series of near-collisions between the Senate and the Commons – over Bill C-69, for example, revamping the approval process for natural resource projects (or as it is known in Alberta, the “no more pipelines” bill), along with Bill C-48, banning oil tankers along the B.C. coast, and Bill C-14, legalizing assisted suicide – along with the usual silent carnage meted out to private member’s bills.
Emboldened, the Senate began amending bills with abandon: 30 of them in just four years, a third of all bills introduced in the House. And those were just the bills that made it to the Senate floor. How many more were never introduced in the House, for fear of Senate opposition? Word had it that even federal budgets were being rewritten in anticipation of senators’ objections.
In time the rebellious fervour ceased, as the relentless onslaught of Trudeau appointments reduced the Conservatives to first a minority of the Senate and then a rump. But there is every prospect of its return, especially in view of the unique threat, as progressives will see it, posed by a Poilievre government.
Conservatives are right to wonder whether a Trudeau Senate would stand idly by while, for example, the planet was put at risk by a Conservative bill abolishing the carbon tax – especially when the Liberals need never have to answer for it at the polls, the bill having been euthanized, not by shameless Liberal partisans, but by the virtuocracy.
Their fears can hardly be lessened by assurances that newly-unbound Senators would never dream of obstructing a democratically elected government – except, of course, to prevent it from passing “blatantly unconstitutional bills” or “rights-violating laws.”
Well, no: that’s what the Supreme Court is for: a specialized, highly-trained body with a mandate limited to comparing one law with another, higher law, and pointing out any inconsistencies. Whereas the Senate is confined by no mandate whatsoever, but rather empowered by the boundless mandate of virtue.
There is simply no basis in a democratic society for a group of 53 or more senators to be substituting their views for that of elected MPs, and the millions of Canadians they represent. It’s wrong when Liberals do it to Conservative governments, and it’s wrong when Conservatives do it to Liberals. It may be legal, but it is not legitimate.
There are two ways to remedy this contradiction, between the Senate’s (immense) legal powers and its (total) lack of democratic legitimacy. One is to invest the Senate with the requisite democratic mandate, by electing senators instead of appointing them.
That dream, or nightmare, depending on your perspective, is well and truly dead, the Supreme Court having ruled in 2014 that even the mildest move in that direction, requiring the Prime Minister to appoint senators who had been elected, could not be implemented without the consent of the provinces.
The other is to trim its powers. We could think, for example, of passing legislation similar to the Parliament Act 1911, which the British House of Commons used to rein in the House of Lords after an especially ugly confrontation over a budget bill. The act limited the Lords to a suspensive, rather than an absolute, veto: two years (since reduced to a year) for most legislation; a month, in the case of money bills.
That’s similar to an existing provision in the Canadian Constitution, limiting the Senate to a six-month suspensive veto on constitutional amendments. If, that is, the Senate has not passed a resolution authorizing the amendment within six months of receiving it from the Commons, the Commons has only to pass it again to seal Parliament’s approval.
That would be a messy fight: a bald assertion of the Commons’ prerogatives, daring the Senate to reject them. But there is a way the Senate could avoid such a showdown. The Senate could trim its own powers, simply by passing changes to its own standing orders. It could, for example, adopt the process that now applies to constitutional amendments as general practice, as proposed by former senators Michael Kirby and the late Hugh Segal in a 2016 paper published by the Public Policy Forum.
More radically, it could adopt a resolution that any bill from the Commons that has not passed the Senate in six months – maybe a month, again, for money bills – “shall be deemed to have passed.”
That’s all that’s really required to solve the Senate riddle. Once it is defanged of its power to kill government bills, all of the other questions about the Senate that have so long divided us – how many senators should be appointed from each province, on what basis, etc. – fade into insignificance.
The current system might even prove to be the best. A Senate whose power resided, not in any formal authority to defeat a bill, but in its moral authority – a Senate that really was a repository of virtue – could make a useful contribution to the government of the country. At the worst, it would be ineffectual.
As it is, however, it is an accident waiting to happen: an accident, what is more, with the potential to do great harm.
Editor’s note: A previous version of this article incorrectly stated that the CSG is predominantly Conservative. The members are a mix of Liberal and Conservative appointees.