How to build on the Senate’s renewal process

What some see as the Senate’s new-found independence is reflected in a greater tendency to press for amendments to legislation. Between the start of the present parliamentary session in December 2015 and the end of June 2018, the Senate proposed amendments to 14 bills that originated in the House of Commons. During the entire 2011-15 Parliament, the Senate attempted to amend only two such bills.

Some of the bills the Senate amended (successfully or not) were adopted after extensive interactions involving the Senate, the House of Commons, government departments and stakeholders. The most high-profile example is Bill C-45, the marijuana legalization bill. It was expected that the Senate would review this legislation particularly attentively and probably call for amendments. Before Bill C-45 arrived in the Senate, Senator Peter Harder, the Government Representative in the Senate, published a detailed report about the Senate’s complementary constitutional role. It discussed the Salisbury Convention on the relationship between the British House of Lords and House of Commons. The convention provides that the Lords do not oppose the second or third reading of bills that are based on commitments the governing party made in its election platform.

The Senate returned Bill C-45 to the House of Commons with 46 amendments (some of which originated with the government). The House of Commons rejected 13 of the proposed changes, including a provision that would have allowed the provinces to ban home cultivation of marijuana. Quebec and Manitoba wanted to forbid their residents from growing recreational marijuana at home. When the bill was returned from the Commons, senators did not insist on that amendment or any of the others the government had rejected. Judging from various comments in Senate debates, acceptance of at least the spirit of the Salisbury Convention was probably a factor in this outcome.

In a number of cases, following debate in the Senate and its committees, the government has offered concessions that do not appear in legislation. For instance, on Bill C-45, Indigenous Services Minister Jane Philpott and Health Minister Ginette Petitpas Taylor promised (in a letter) that the government would report to the Standing Senate Committee on Aboriginal Peoples within 12 months of legalization on steps it has taken to address concerns from Indigenous communities. This is one example of how the Senate is making greater use of what some have labelled “soft power.” In this regard, the senior political scientist Paul Thomas suggested at the IRPP round table that the Senate should seek influence through scrutiny, advice, publicity and persuasion rather than by relying on the “hard power” of attempting to defeat, amend in fundamental ways or prolong unduly the passage of government bills already approved by the Commons.

David Smith, one of Canada’s leading constitutional scholars, stated in his round table presentation that there is no doubt that the Senate is improving legislation. It is fair to say that, in doing so, it has become somewhat more independent. However, there is relatively broad agreement that its constitutional role can be accurately described as complementary to that of the House of Commons. Put another way, there has not been a marked departure from what was envisaged during the pre-Confederation debates and from the way the Senate has usually carried out its legislative review function.

As for the Senate’s representativeness, there has been a notable improvement on two dimensions. As of October 31, 2018, 56 percent of the senators appointed under Trudeau were women and 16 percent were Indigenous. As a result, 44 percent of the 105 Senate seats are filled by women and 11 percent by Indigenous people. In both cases, the proportion is considerably higher than in the House of Commons (see table 2). (Indigenous people accounted for 5 percent of the Canadian population in 2016.) As Senator Ratna Omidvar observed at the round table, the Trudeau Senate appointments are leading to “a more inclusive and complete picture of this country.”

Read the full article on the Policy Options website.