The Senate of Canada is up on its hind legs. Will it bite?

Independent senators now make up the majority in a newly relevant upper chamber—and, yes, they have the power to kill bills
Senate chamber in Ottawa. (Photograph by Blair Gable)

Talk about reforming the Senate, the den of what our first prime minister called “sober second thought,” even if that wasn’t a capacity he himself had, is as old as the body itself. Throughout its 151 years, there have been plenty of attempts to amend or modernize the body, some successful, some not, some from within, some from without: elect senators, ensure equal representation of the provinces, introduce terms, set age limits, let the provinces suggest appointees, adopt a code of ethics, and even “roll up the red carpet.”

Some of these reforms and others have seen the light of day, including mandatory retirement at age 75, a Conflict of Interest Code and public meetings of the chamber’s internal economy committee. In June 2016 during the debate on C-14, the assisted dying bill, and again in February 2018, with C-45, the cannabis bill, the Senate welcomed cameras and photographers as a special measure. In the New Year, when the upper house temporarily moves into the Government Conference Centre while its permanent home, Centre Block, undergoes renovations for the next decade, it will routinely broadcast its proceedings—and will continue to do so after returning to Parliament Hill.

Reforms have been mostly incremental and modest. Permanent, widespread Senate elections and term limits have been non-starters—and the Red Chamber isn’t going anywhere. Over the past three years, however, the place has been on the fast-track to next-level relevance—as its delay of back-to-work legislation for postal workers recently signalled. Ask any of the politicians, staffers, or government relations professionals around the Hill, and they’ll tell you things have changed. Especially one thing: lobbying. There’s a lot more of it. In January 2018, the National Post reported that lobbying in the Senate doubled in 2017 from the previous year—increasing to 1,250 monthly communications reports of meetings. That’s up sixfold since 2015.

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Last spring, the commissioner of lobbying released her latest report covering the fiscal year ending March 31. She noted that the Senate ranks fifth among government institutions listed in lobbyist registrations for last year—with 22,871. That’s compared to 23,784 for Finance Canada and 28,614 for the third-place Prime Minister’s Office. (The House of Commons tops the list with 35,155.)

You don’t need to go back far to find the origins of this growth. In January 2014, amid scandals in the Senate, Justin Trudeau, then the mere leader of the third party, stunned parliamentarians and the public when, without notice, he removed Liberal senators from his party’s caucus. Trudeau and his team maintained strict secrecy with the plan, signalling their intention to take reform seriously, if high-handedly. Liberal senators—who soon designated themselves “Senate Liberals,” were not amused. Then, in December 2015, Trudeau, now Prime Minister, went ever further. He introduced an arms-length, non-partisan, merit-based process to appoint senators who would henceforth enter the chamber as non-affiliated members. The hope was that over time the body would become “independent”—a place for experts doing expert work, overcoming the chamber’s legacy as a club for party hacks and expense fiddlers—a reward to loyalists known as “the taskless thanks.”

But some senators say Trudeau is pushing limits others began testing decades ago. “We were starting modernization way before 2015,” says Conservative Senator Raynell Andreychuk, who was appointed to the upper chamber in 1993 by Brian Mulroney. “I was part of a group in 1994 working on modernizing the Senate…it hasn’t been frozen in time.” But reform is complicated, Andreychuk says, for the same reason that the Senate is here to stay: “What has been frozen in time is the constitution. And that has limited how we can modernize and change.”

The thing about institutions is that when they change, they tend to do so slowly—and sometimes unpredictably. Greg MacEachern, senior vice president of government relations at Proof Strategies, says recent changes have made the Senate an “Island of Unintended Consequences,” adding that there isn’t necessarily anything wrong with that since the Senate does valuable work.

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His view is echoed by Senator Grant Mitchell, a non-affiliated member of the chamber and the body’s government liaison. Mitchell is one of Canada’s most lobbied senators—second to Terry Mercer last year and first this year. “I’m quite happy with that,” says Mitchell. “It demonstrates that I’ve been involved in two extremely big bills.” Mitchell sponsored C-49, on transportation, and C-69, on environmental impact assessment. Each bill is complex, multi-faceted, and draws the interest of individuals and groups from industry and civil society.

Some senators are reluctant to meet with lobbyists. They either feign a lack of availability (“see me in a few months”) or refuse to see them altogether. Mitchell has trouble with their reticence. “I think it’s naïve for somebody to say they would never meet with lobbyists,” he says, offering a different conception of the policymaking process. “It’s very hard to keep up if you don’t. What are you left with? If you’re not knocking on [voters’] doors, are you just reading newspapers?”

These dueling approaches reflect a Senate in transition, a body working through both the intended and unintended consequences of Trudeau’s reforms and its own internal changes. Jim Munson, a Senate Liberal appointed by Jean Chrétien in late 2003, says the growth in lobbying is unprecedented.

“It’s something I’ve never seen before,” he says, “and I attribute that to the creation of an independent body of senators…it’s not just a given that legislation will be passed in the manner the government would like it to be passed, and in the shape they would like it to be passed.” Munson concludes: “It’s open season in the Senate.”

Senate veteran Grant Mitchell, far right, now serves as government liaison for the body. He’s pictured here with Senator Paul Massicotte, left, Senator Richard Neufeld, centre, after the 2013 release of a report calling for a review of rail safety (Patrick Doyle/CP)

So, what does the season’s haul look like? The rise in lobbying correlates with a significant increase in successful Senate amendments to government bills. Senator Peter Harder, appointed by Trudeau in March 2016, a non-affiliated member who serves as government representative in the chamber, points out that the Senate has successfully amended a quarter of government bills in the current session—14 of 54. In comparison, he notes, only one bill was amended in the final session of Parliament under Stephen Harper, with a Conservative-dominated chamber—“and that was with Mr. Harper sanctioning it,” he says.

These interventions have gone far beyond collaboration between collegial parliamentarians in the Senate and House (though there is some of that). In 2017, the Senate and the Commons were locked in a standoff over S-3, a bill to amend status rules in the Indian Act in response to a court decision in Quebec that found parts of the act to be sexist and unconstitutional. After deadline delays and extensions, the Senate offered an amendment that went further than the government’s original bill in removing sexist rules that put conditions on transferring “Indian” status to offspring. The government, worried by estimates (believed by one of its own departments to be inflated) that the amendment would increase the number of people who could claim status by as much as 1.2 million, refused the change. The Senate bided its time. Eventually, the government compromised with its own House amendment promising consultations and a commitment to address sexism in the Indian Act. Still, the Senate vowed to act as a “watchdog,” ensuring the measures in the bill were implemented in a timely fashion. The message had been sent.

The Senate asserted itself more boldly still this year when it proposed 46 amendments to the Cannabis Act, which legalized recreational use of marijuana. In June, it looked as if the two chambers of Parliament were headed towards another showdown, as the House rejected key Senate amendments including prohibitions on distributing cannabis-company branded merchandise and allowing provinces to ban growing marijuana at home. Eventually, the upper house relented and passed the bill 52 to 29.

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There have been other tense moments between the House and Senate, including a bill on impaired driving (C-46), a labour relations bill (C-4), a RCMP labour relations bill (C-7), a transportation bill (C-49), and even (extraordinarily, since it was a money bill) the budget implementation bill in 2017 (C-44). Pressure on the government in these cases came from a variety of senators including Conservatives, Senate Liberals, and Independents.

More recently, as the holiday season began, the Senate passed C-89, the government’s hurried back-to-work legislation for Canada Post workers who had been on a rotating strike for weeks. The chamber passed the bill 53 to 25 (with four abstentions) despite some senators questioning the haste and constitutionality of the bill. While C-89 was a test of the Senate’s independence, the vote’s outcome reflects both the upper house’s judgment and commitment to defer to the elected House. Nonetheless, the ‘No’ votes came from across party lines, including Senate Liberals, Conservatives, and members of the Independent Senators Group.

So far, the Senate remains committed to passing government legislation, ultimately deferring to the will of the elected, confidence chamber. But the staredowns reflect a changing—and perhaps soul-searching—Senate, as a new parliamentary dynamic emerges. Senators and MPs are working out, day-by-day, bill-by-bill, the limits of what the Red Chamber can, will and must do—and just as importantly, what they can’t, won’t and mustn’t. Harder argues what we’re seeing is something he calls robust bicameralism. “Parliament has always been bicameral,” he says. “But it hasn’t been bicameral in the sense of having the Senate as part of the day-to-day system of governance.”

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Robust bicameralism has limits, though. According to Harder, the Senate is “an advising body, not a politically accountable body,” by which he means directly accountable to the electorate. He concludes, “We are here to advise, improve, amend. But we are not here to obstruct. The political accountability goes through the other chamber. We ping, but we don’t ping-pong.” (The Senate has, however, occasionally done some ping-ponging, as noted above.)

Amendments, speeches, meetings, and study are important. But would the Senate defeat a bill, as it has only a handful of times since the Second World War? Harder says he could imagine a theoretical case in which the Red Chamber would assert its right to do so. “I don’t want to predict but I would think that if the Government of Canada had to use the notwithstanding clause to implement something that was a campaign promise, there might be some resistance in the Senate,” he says. An extreme and unlikely scenario, that hard test is probably not going to arise any time soon, and Harder otherwise stands firm on his commitment to the Salisbury Doctrine, a constitutional convention devised in the United Kingdom, which stipulates that the upper house will not defeat a government bill that was campaigned on.

Senator Yuen Pau Woo, the facilitator of the Independent Senators Group, which now holds an absolute majority in the Senate, echoes Harder’s perspective. He also recognizes that the chamber is evolving. “We are still finding our way and there are many different paths the Senate could evolve towards, and it is within the Senate and senators themselves to shape that future,” he says. Still, he accepts limits, noting “government bills coming to the Senate demand our attention on a timely basis and ultimately they demand that we vote on them.”

Like Harder, Woo is careful not to press back too forcefully against the government. “Being independent doesn’t mean being a free electron,” he says. “Independence is not radical autonomy. Independence comes with responsibility and it comes with an institutional context that in some ways is more important than the mere recitation of independence.” It should come as no surprise, then, that a 2017 study by the CBC’s Éric Grenier found that Independent senators appointed by Trudeau voted with the government 94.5 percent of the time. And for good reason, claims Woo. “If we voted against the government most of the time, do you think the public would be saying, ‘Now that’s the sign of a successful Senate?’ Probably not. No, they’d be saying, ‘My god, what’s happening in Ottawa?’ ”

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Does that mean the independent senators can be counted on by the government? Mitchell says no. In previous years, his position—government liaison—was cast as the whip: a member of the leadership whose job it is to secure votes and ensure party discipline. That job is different now, since no senator caucuses with the governing party in the House of Commons and thus none is subject to their control or discipline. “I’m the one person who can tell you, because I have to count votes, I have to figure out who’s voting how. The [Independent Senators Group] isn’t whipped,” says Mitchell.

That presents a potential problem for getting bills passed. Mitchell notes that Conservative senators remain partisan and routinely vote against government legislation. What, then, are unelected independent senators to do? Join them and defeat government legislation? Hopefully not. “At the end of the day, [the independent senators] act responsibly. Not because they’re supporting government for the sake of supporting government or because they’re somehow Liberals—because they’re not. They do it because they have a responsibility to do it.”

So, despite the outlines of the new Senate coming into view, the chamber’s future remains blurry—and the 2019 election is less than a year away. Will it vote with government as often, or more so, as the House of Commons rushes to get as much done as they can before the writs are issued? What if the Conservatives under Andrew Scheer—who wishes to return to the old Senate model—form government? Will non-affiliated senators appointed by Trudeau pass Scheer’s legislation (at least) as fast and willingly as they have that of the PM who welcomed them to Ottawa? Will an increasingly emboldened Senate more frequently amend or even defeat government legislation?

We don’t know. That’s the risk that comes with institutional change and the emergence of new practice and norms. They ripple. They create waves. And sometimes, they create waves big enough that they crash back down on you. Still, big changes to the Senate have been a long time coming. Now that they’re here, and with more to come, Canadians should watch closely. For better or worse, the future of our democracy is bound up with what happens there.