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The Effect of Trudeau's New Senate Selection Process in Perspective: The Senate's Review of Commons Bills, 1997-2019

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Abstract

This paper examines the Senate's record in reviewing legislation sent to it from the House of Commons, to see how the Senate has exercised its role as a chamber of legislative revision in the period 1997 to 2019. Several broader insights into the Senate's legislative review role emerge from the analysis, including the relatively short period of time most Commons bills spend in the Senate and the very different treatment of government bills and private members bills. The main findings of this analysis reveal a dramatic rise in amendments to government bills since the Trudeau government moved from overtly partisan Senate appointments to one favouring more independent candidates starting in 2016. Independent Senators appear to be considerably activist, with the rate of amendment doubling those seen in any prior session from 1997 to 2015. However, this activism has not led to deadlocks between MPs and Senators. Research in this paper also reveals that over a third of the Senators chosen by Trudeau had either been Liberal candidates or financial donors, which may explain a hesitancy to confront the Liberal government over amendments proposed by the Senate. Résumé. Cet article analyse le bilan du Sénat dans l'examen des lois qui lui ont été envoyées par la Chambre des communes, afin d'identifier comment le Sénat a exercé son rôle de chambre de révision législative au cours des années 1997 à 2019. De cette analyse ressortent plusieurs résultats généraux quant au rôle d'examen législatif du sénat; notamment pendant la période relativement brève que la plupart des projets de loi des Communes passent au Sénat ainsi que le traitement très différent des projets de loi du gouvernement et des projets de loi d'initiative parlementaire. Les conclusions principales de cette analyse concernent l'augmentation spectaculaire des amendements aux projets de loi émanant du gouvernement depuis la mise en oeuvre du nouveau processus de nomination sénatoriale lancé en 2016; le gouvernement Trudeau est passé des nominations ouvertement partisanes à un processus censé favoriser davantage de candidats indépendants. Les sénateurs indépendants semblent être considérablement activistes; de 2016 à 2019 le taux d'amendements a doublé par rapport au taux observé pendant les sessions de 1997 à 2015. Cependant, cette activité plus élevée, n'a pas abouti à une impasse entre les députés et les sénateurs jusqu'à présent. Les recherches dans cet article révèlent également que plus du tiers des sénateurs choisis par Trudeau étaient soit des candidats libéraux soit des donateurs financiers, ce qui pourrait expliquer une hésitation à affronter le gouvernement libéral au sujet des amendements proposés par le Sénat.
Canadian Political Science Review Vol. 13, No. 1, 2019-20, 108-145
ISBN (online) 1911-4125 Journal homepage: https://ojs.unbc.ca/index.php/cpsr
Article
The Effect of Trudeau’s New Senate Selection Process in
Perspective: The Senate’s Review of Commons Bills, 1997-2019
Andrew Heard
Department of Political Science, Simon Fraser University Email address: aheard@sfu.ca
Abstract
This paper examines the Senate’s record in reviewing legislation sent to it from the House of Commons, to see
how the Senate has exercised its role as a chamber of legislative revision in the period 1997 to 2019. Several
broader insights into the Senate’s legislative review role emerge from the analysis, including the relatively
short period of time most Commons bills spend in the Senate and the very different treatment of government
bills and private members bills. The main findings of this analysis reveal a dramatic rise in amendments to
government bills since the Trudeau government moved from overtly partisan Senate appointments to one
favouring more independent candidates starting in 2016. Independent Senators appear to be considerably
activist, with the rate of amendment doubling those seen in any prior session from 1997 to 2015. However,
this activism has not led to deadlocks between MPs and Senators. Research in this paper also reveals that
over a third of the Senators chosen by Trudeau had either been Liberal candidates or financial donors, which
may explain a hesitancy to confront the Liberal government over amendments proposed by the Senate.
Résumé
Cet article analyse le bilan du Sénat dans l’examen des lois qui lui ont été envoyées par la Chambre des
communes, afin d’identifier comment le Sénat a exercé son rôle de chambre de révision législative au cours
des années 1997 à 2019. De cette analyse ressortent plusieurs résultats généraux quant au rôle d'examen
législatif du sénat; notamment pendant la période relativement brève que la plupart des projets de loi des
Communes passent au Sénat ainsi que le traitement très différent des projets de loi du gouvernement et des
projets de loi d'initiative parlementaire. Les conclusions principales de cette analyse concernent
l'augmentation spectaculaire des amendements aux projets de loi émanant du gouvernement depuis la mise
en œuvre du nouveau processus de nomination sénatoriale lancé en 2016; le gouvernement Trudeau est
passé des nominations ouvertement partisanes à un processus censé favoriser davantage de candidats
indépendants. Les sénateurs indépendants semblent être considérablement activistes; de 2016 à 2019 le
taux d'amendements a doublé par rapport au taux observé pendant les sessions de 1997 à 2015. Cependant,
cette activité plus élevée, n’a pas abouti à une impasse entre les députés et les sénateurs jusqu'à présent. Les
recherches dans cet article révèlent également que plus du tiers des sénateurs choisis par Trudeau étaient
soit des candidats libéraux soit des donateurs financiers, ce qui pourrait expliquer une hésitation à affronter
le gouvernement libéral au sujet des amendements proposés par le Sénat.
Keywords: Canadian Senate, independent Senators, nonpartisan appointment, legislative review, Senate
reform, Trudeau reforms, Canadian political history
Mots-clés: Sénat canadien, sénateurs indépendants, nomination non partisane, examen législatif, réforme du
Sénat, réformes Trudeau, histoire politique canadienne.
Introduction
Andrew Heard 108
While the Senate has a number of valuable roles to play in our system of government, the
one most often singled out is acting as a chamber of sober second thought for measures
already approved by the House of Commons. This paper will examine the Senate’s record
in reviewing legislation sent to it from the Commons, to see just how Commons bills have
been treated in recent years. The foundation for these discussions is provided by a
statistical breakdown of the handling of Commons bills in the Senate during the last seven
Parliaments, covering the period from 1997 to 2019. This period encompasses a useful
range of changing political circumstances and a shifting balance of power between parties
in both the Senate and House of Commons.
1
In the discussion that follows, I hope to reveal
just what the Senate has or has not done with the government and private members’ bills
sent to it by the House of Commons. One justification for an appointed Senate lies in it
having a substantial role to play in improving the laws which emerge from Parliament. As
the Supreme Court of Canada described the Senate, it is meant to be a complement to the
House of Commons rather than a rival (Supreme Court, 2014; para 58). So, it is important
to know just what the Senate has been doing to fulfil this role as a complementary chamber
of legislative revision. This period of study allows a contextual assessment of changes to
the Senate’s work as a revising chamber following the influx of ‘non-partisan’ Senators
appointed since Justin Trudeau assumed office in 2015.
This study’s objective is two-fold: first to assess how active the Senate has been in its
legislative review function over the last seven parliaments, spanning the period 1997-
1
From 1997 to 2004, the Liberal party controlled a majority in both Houses. From 2004 to 2006, the Liberals
formed a minority government in the Commons with a majority in the Senate. From 2006 to 2009, the
Conservatives formed a minority government in the Commons, while the Liberals held a majority in the
Senate. From 2010 to 2011, the Conservatives continued with a minority government while gaining control of
the Senate. From 2011 to 2015, the Conservatives held a majority of seats in both Houses.
109 Canadian Political Science Review
2019; and, second, to determine how differently the Senate has treated Commons
legislation since the introduction of a new ‘non-partisan’ selection process to fill Senate
vacancies. Of the 733 Commons bills introduced into the Senate in the period 1997-2019,
629 gained royal assent (85.8%) and 74 were amended (10.1%).
2
As one will see, however,
significantly different treatment was given to these bills over time, and government
sponsored bills consistently received favourable treatment compared to private members’
bills. The major finding of this data analysis is that since the independent Senators have
taken control, the Senate has been significantly more active in reviewing and amending
legislation already passed by the Commons. However, this activism has so far not led to
deadlock between the two houses. A secondary finding is that disparities in the Senate’s
treatment of government and private members bills have grown even wider.
After a brief discussion of the rationale for the Senate’s role in reviewing Commons
legislation, as well as the nature of the changes made by Prime Minister Trudeau, this paper
will discuss in detail the Senate’s treatment given to both government and private
members’ bills sent up from the Commons. These findings permit a firmer foundation from
which to examine any transformation identifiable since the appointment process was
instituted in 2016.
Rationale for the Senate’s Role in Legislative Review
2
All data on the Senate’s treatment of legislation sent from the House of Commons are compiled from the
material in the “Progress of Legislation” reports issued by the Senate and the detailed information on each bill
at the Parliament of Canada’s LEGISinfo site. The data was compiled from the reports for each session of the
36th through 42nd Parliaments.
Andrew Heard 110
Canada’s Parliament was deliberately modelled on the bicameral British Parliament when
participants in the confederation debates came to discuss national institutions. The intent
was to combine increased regional representation with a legislative review function in the
upper house.
3
While an increasing number of Canadians reject a role for an appointed
house in a modern democracy, it is worth reviewing the reasons for its existence and the
potential contributions the Senate may still legitimately make in the legislative process.
The Senate was originally intended to act as a brake on the impulses of the elected lower
house. Janet Ajzenstat has argued that the Senate was meant be a foil against the ruling
party’s ability to limit debate in the Commons and push measures through regardless of the
opposition’s views (Azjenstat, 2009). No doubt, too, the Senate was also originally viewed
as a bastion of propertied interests, with a requirement in the Constitution Act, 1867 for
Senate nominees to hold real property that did not apply to members of the House of
Commons.
4
Although Colin Campbell has argued that the Senate has operated as a house of
lobbyists, with the close corporate links of many senators, most modern observers credit
the Senate with a useful role based on other virtues.
5
Principally, it is argued that the Senate is a less partisan chamber with an impressive array
of talent; most new members join the body after notable careers in the professions,
business, the arts, or public service. The longer-term membership of the Senate and its
committees provide a shared expertise and familiarity with public policy that is too often
3
For a review of the role of second chambers, see: Watts, 2003.
4
Section 23 of the Constitution Act, 1867 stipulates a number of qualifications for someone to be appointed to
the Senate, including property worth at least $4,000 in the province which they are appointed to represent.
5
For general discussions of the role of the Senate and the positive attributes it may bring to legislative review,
see: Docherty, 2005: 41-44; Franks, 1987: ch.9; Franks, 2003; Lynch-Staunton, 2000; O’Brien, 2005; O’Brien,
2019; Sharman, 2008; Smith, 2003: ch.6; Thomas, 2003. There are, of course, a number of authors who have
also been critical of the work of the Senate; for example, see: Boyer, 2014; Campbell, 1978; Hoy, 1999.
111 Canadian Political Science Review
lacking in the more transient world of the House of Commons; in comparison, Commons
committees have suffered from higher turnover in membership.
As well, the Senate is viewed as usually having a less partisan atmosphere than the
Commons, allowing for more substantive debates and committee discussions. Until the
Harper government imposed stringent discipline in the Senate Conservative caucus, as
well, individual senators had traditionally charted a more independent line from their
party whips than would ever be allowed in the Commons. As a result, even a party with a
majority in both houses was historically not ensured of having its way in the Senate.
6
That
said, there have been a few periods when the Senate has been so effectively controlled by
the ruling party that no government legislation was amended without the government’s
blessing.
7
As a separate partner in the legislative process, even an appointed upper house can at
times provide a useful counterweight to the cabinet’s control over the Commons. The key,
though, is that the senators have some degree of autonomy and should not use it to impose
their choice of public policies on elected MPs. The traditional formulation of the Senate’s
role, that it provides sober, second thought, encapsulates the notion that it adds an extra
stage in the legislative process that allows for further public hearings and time in which
public support for changes to proposed legislation can consolidate. The Senate’s task is to
identify occasions when the elected MPs should reconsider measures they have passed. In
6
In the period 1958-1988, the Senate’s tendency to amend Commons bills was positively correlated with the
size of the governing party’s majority in the House (Heard, 2014; 148).
7
Stephen Harper’s government drew fire for the fact that only one Commons bill was amended by the Senate
in the 2011-15 Parliament. Only one bill was also amended during 1980-84 when the Liberal government had
a majority in both Houses.
Andrew Heard 112
taking a second look at matters referred back to it by the senators, MPs have the
opportunity to agree to amendments they realize on further reflection actually improve
their bills or they can decide the original form was optimal and insist the Senate agrees.
Given stringent party discipline, narrow windows for committee hearings, and the
increasing use of time allocation to limit debate, there is no doubt that some bills passed by
the House of Commons have not had sufficiently detailed consideration or accommodated
public reaction adequately. As will be shown below, the Senate has been more active in the
study period with bills subjected to time allocation in the House of Commons than with
other bills.
With this discussion in mind, one can better assess the Senate’s actual performance in
reviewing bills sent to it from the House of Commons. In the sections that follow, this paper
will examine data showing the length of time the Senate has spent considering Commons
bills and the rate at which these bills have been amended. Particular attention will be paid
to the different treatment given government bills and private members’ bills. As well, the
legislative record can reveal whether the Senate has taken its role as a counterweight
seriously, by acting proportionately more often on bills which have been the subject of time
allocation in the Commons.
The New Senate Appointment Era
While still in opposition, Liberal Leader Justin Trudeau announced that, if elected, his party
would expel all Senators from its caucus and commit to appointing non-partisan Senators.
Despite his attempt to expel Liberal Senators, however, most of those Senators vowed their
loyalty to the party and continued to sit as a Liberal group in the Senate (although, they
113 Canadian Political Science Review
decided not to enforce a whip on votes) (Cowan, 2015). Very soon after winning office in
the 2015 election, Trudeau announced that Senators would be selected from a list of five
candidates identified by an Independent Advisory Board for Senate Appointments from
among those who had actively applied to be considered. The message sent out at the time
was that prospective candidates should “have the ability to bring a perspective and
contribution to the work of the Senate that is independent and non-partisan.”
8
Trudeau’s
opportunity to act on his pledge was leveraged by the fact his predecessor in office,
Stephen Harper, had deliberately refused to fill vacancies on the grounds that he believed
only elected individuals should become Senators. At the time Trudeau assumed office, 23
Senate seats were vacant. Over the course of the next four years, resignations and
retirements added a further 29 positions to be filled. All told, the Trudeau government
appointed 50 Senators by the dissolution of parliament in 2019, the most during any single
parliament since Confederation.
9
The shift to appointing nominally non-partisan Senators
cannot be emphasized enough for its rejection of past practices; from 1867 to 2013, only 11
of 928 Senators were appointed to sit as independents (Heard, 2014: 142). Virtually all
these newly appointed Senators sat as independents, but they formally organized as the
Independent Senate Group after 2017. The ISG is in some ways like a caucus, with regular
group meetings, substantial financial resources assigned to the group, centrally assigned
committee memberships, and shared research resources. But the ISG does not ‘whip’ its
8
For more information on the new appointment process, see the website of the Independent Advisory Board
for Senate Appointments: https://www.canada.ca/en/campaign/independent-advisory-board-for-senate-
appointments.html.
9
There were 2 vacancies in the Senate at the time parliament was dissolved in 2019.
Andrew Heard 114
members, as it does not take a collective position on specific policy matters and leaves
voting decisions to individual members.
10
This rapid influx of a large number of non-partisan Senators fundamentally recast the
traditional dynamics in the Senate. On top of the newly appointed Senators who were
appointed on the understanding that they would not overtly support any political party, the
growing critical mass of non-partisan Senators encouraged a surprising number of
incumbent Senators to leave their partisan groups to sit as independents; nine
Conservatives, seven Liberals, and the remaining Progressive Conservatives all abandoned
their party affiliations to sit as independents (Library of Parliament, “Parliamentarians”).
Figure One shows the dramatic nature of the shift in partisan and independent affiliations
from 1997 to 2019. The cultural impact of these changes continued to reverberate in the
Senate after the study period of this paper, with 11 Senators announcing in November
2019 election that they would form a new Canadian Senators Group dedicated to
representing regional interests in a non-partisan setting. A further four Senators left the
Conservative caucus to join those forming this new group (Dickson, 2019). Within days, the
nine remaining Liberal Senators announced they would be abandoning their Liberal label
to call themselves the Progressive Senate Group, in the hopes of attracting left-leaning
members of the ISG to join them (Tasker, 2019).
10
Peter Harder was appointed by Trudeau to the Senate in order to serve as the Government Representative,
and as such he formally identified himself as not affiliated with any group; his justification was that his
participation in the ISG would undermine that group’s portrayal of its members as thoroughly independent of
the government. However, as the person responsible for facilitating the passage of government legislation
through the Senate in a form as acceptable to the government as possible, Harder is quite clearly allied with
the Liberal government as a consequence; in addition, Harder attends a range of cabinet meetings, although
he is not a member of cabinet. Senator Harder is assisted by Senators Bellemare and Mitchell who also sit
nominally as non-affiliated Senators.
115 Canadian Political Science Review
Source: (Library of Parliament, “Parliamentarians”)
Initial scholarly assessments of the Trudeau appointees suggested that, while they had a
major impact on the internal functioning of the Senate, they had not made a remarkable
difference to the Senate’s level of legislative activity (Macfarlane, 2019; Stos, 2017; Thomas,
2018). These studies were based only on the first half of the parliament following the 2015
election, however, while this paper examines the whole of the 2015-19 period; as will be
seen later, the Senate became far more active in the second half, once the ISG came to
dominate the chamber (See Table Four).
Treatment of Government Bills
A core measure for the Senate’s effectiveness in the legislative process is how it treats
government legislation already approved by the House of Commons. There is a tension
Andrew Heard 116
between respecting the expressed will of a majority of elected MPs and giving some
autonomous assessment of the government’s bills. In its creation, the Senate was intended
to provide a second consideration of measures passed by the Commons and to recommend
that MPs consider changes when appropriate. In the almost 150 years since Confederation,
Canada’s political system has changed dramatically, with the tight party discipline of MPs
being a key feature of the modern era. In addition, government ministers now have at their
disposal procedural rules which allow them to shut down debate in the House of Commons
and force votes. So long as the government is able to command a majority of MPs through
party discipline, the cabinet can control which, if any, amendments are made to its bills and
use time allocation to squeeze bills through the House in short order. With the prospect of
entrenched cabinet control of the House of Commons, the Senate’s role in reviewing
legislation becomes even more salient, and it is especially important to determine just how
effectively the Senate reviewed government bills.
The period of study from 1997 to 2019 was chosen for several reasons. This time frame
allows the study of the Senate in all traditional configurations of partisan control of both
the Senate and House of Commons as a comparison to the current control of the Senate by
independent Senators. The period begins in 1997-2004 with a Liberal majority government
in the House of Commons and a Liberal majority in the Senate as well. Then a two-year
period of Liberal minority rule follows in the Commons, while the Liberals continued to
control the Senate. The Conservatives formed minority governments in 2006 through 2011,
a period in which majority control of the Senate transitioned from the Liberals (until
October 2009) to the Conservatives by late 2010. A Conservative majority government was
in place from 2011 to 2015 at a time when the Conservatives also enjoyed a majority in the
117 Canadian Political Science Review
Senate. In the 2015-19 parliament, a Liberal majority government initially faced a majority
of Conservatives in the Senate, after which no one group dominated the Senate until the
Independent Senators Group formed a majority in October 2018. This complete range of
partisan permutations allows a breadth of data on the Senate’s review of bills from the
Commons, especially when broken down by session rather than the life of whole
parliaments. With it, one can put into better perspective the work of the Senate in the new
era of non-partisan Senators dominating the upper house.
A total of 588 government bills from the Commons were introduced in the Senate between
1997 and 2019. Of this group, 551 gained royal assent (93.7%) and 63 were amended
(10.7%). Thirty-seven died on the order paper; three of these had passed third reading
with amendments that were unresolved with the Commons prior to prorogation or
dissolution. Sixteen of the bills that died on the order paper had not received second
reading. The late transmission of bills from the Commons to the Senate does explain some
of the lack of success in completing review of legislation in the Senate. For example, 19 bills
left on the order paper had been introduced into the Senate within 90 days of the end of a
session. Many of the bills that expired on the order paper were introduced within a month
of the summer break, with prorogation or dissolution coming either in the late summer or
September. However, several bills did not complete three readings in the Senate despite
spending long periods of time there.
Table One: Treatment in the Senate of Government Bills from the Commons by
Session, 1997-2019
11
11
Data calculated from Senate of Canada. n.d.
Andrew Heard 118
Session
Bills
Introduced
Bills
Amended
3rd
Reading
Royal
Assent
1997-9
69
7
68
68
1999-2000
30
2
29
29
2001-2
50
5
47
47
2002-3
41
5
30
28
2004
23
1
21
21
2005
46
3
46
46
2006-7
43
5
36
36
2007-8
31
2
29
29
2009
36
3
33
31
2010-11
29
0
28
28
2011-13
51
1
50
50
2013-15
55
0
55
55
2015-19
84
29
83
83
In the modern era, the Canadian Senate has not been very active in amending government
bills from the Commons. In the period from 1962 to 1997, for example, the Senate’s rate of
amending bills from the House never achieved double digits (Heard, 2014: 146). The Senate’s
reticence to amend Commons legislation is not shared by the United Kingdom’s upper house.
For example, in contrast to the 11 government bills amended by the Senate in the period of
2006-15, the House of Lords amended 70 government bills sent from the Commons in
roughly the same period (2005-15) (The Constitution Unit, n.d.). Prior to the change in
appointment practices for the Senate in 2016, the Senate’s overall sessional rate of
amendment of government bills from the Commons ranged from a low of zero in 2010-11,
and again in 2013-15, to 14.6 per cent in 2002-3. However, the period 2015-19 stands out
with a significant jump in the Senate’s rate of amendment of Commons bills to 34.9%. The
significance of this increase can be seen even more clearly when one restricts the analysis to
exclude bills which were considered unamendable by the Senate.
119 Canadian Political Science Review
In each session, the Senate considers a number of Appropriations Acts that supply large
amounts of money for the operation of the government, and these are handled quite
differently from other legislation. For one thing, the House now routinely deals with all
stages of an Appropriation Act in one day. And it is widely thought that the appointed Senate
cannot properly amend them, since control of the public purse is said to be the purview of
the elected chamber of parliament. Table Two shows that when one eliminates
appropriation bills from consideration, the effective rate of amendment by the Senate is
noticeably higher in most sessions than Table One would suggest. For example, in 2002-3,
five Appropriation Acts were included in the 41 government bills sent from the Commons.
As a result, the effective rate of amendment is 6 out of 36 amendable bills, or 16.7 per cent,
in that session. In 2015-19, 18 of the 84 government Commons bills introduced into the
Senate were Appropriation Acts. As a result, the 29 bills amended by the Senate represent
44.6% of the total.
Table Two: Treatment in the Senate of Government Bills from the Commons by Session, 1997-
201912
Session
# Bills
Introduced
Bills with
3rd
Reading
# Bills
Amended
% of All
Bills
Amended
Appropriation
Bills
Amendable
Bills with
3rd Reading
%
Amendable
Bills
Amended
1997-9
69
68
7
10.3
9
59
11.9
1999-00
30
29
2
6.9
4
25
8.0
2001-2
50
47
5
10.6
7
40
12.5
2002-3
41
30
5
16.7
5
25
20.0
12
Data calculated from House of Commons, n.d. and Senate of Canada, n.d.
Andrew Heard 120
2004
23
21
1
4.8
2
19
5.3
2004-5
46
46
3
6.5
5
41
7.3
2006-7
43
36
5
13.9
6
30
16.7
2007-8
31
29
2
6.9
5
24
8.3
2009
36
33
3
9.1
6
27
11.1
2010-11
29
28
0
0.0
5
23
0.0
2011-13
51
50
1
2.0
12
38
2.6
2013-15
55
55
0
0.0
10
45
0.0
2015-19
84
83
29
34.9
18
65
44.6
A casual review of the Senate’s treatment of government bills would show that 96 of those
that progressed beyond second reading were given no detailed examination in Senate
committees, potentially undermining the detailed foundation upon which the Senate can
provide sober second thought. However, all but three of those bills were Appropriation
Acts, and Senate committees usually study the Estimates of those bills prior to their
introduction in the Senate. Overall, 473 government bills were formally considered by a
committee (80.4%), including in pre-study; a further 2 Common bills were given pre-study,
but were not subsequently introduced into the Senate prior to prorogation/dissolution.
Perhaps the biggest surprise is the short period of time that many bills were formally
before the Senate, considering its reputation for detailed scrutiny. For the 471 government
bills that completed third reading in the Senate between 1997 and 2015, an average of only
42 calendar days were spent in to reach that point; fifty-seven per cent were in and out of
the Senate in 30 days or less. In the period 2015-19, however, the average time it took for
government bills to receive third reading in the Senate more than doubled, to 95.6 days.
Even so, 45.7% still completed third reading in 30 days or less in 2015-19, and 88% were
given third reading within six months. Only three bills took more than a year to pass third
121 Canadian Political Science Review
reading during the entire period of study, all in 2015-19: Bill C-55 on designating marine
protected areas (372 days), C-48 on oil tanker legislation (401 days), and C-58 on access to
information and privacy (517 days).
One concern that has been expressed about the Senate’s unlimited legislative powers is
that it can effectively kill Commons legislation through a subtle and sometimes unseen
“indirect veto,” by simply failing to proceed with bills before the end of a parliamentary
session. However, the data revealed very few examples of the indirect veto of government
legislation in the period studied. The clearest example of an indirect veto of a government
bill is well known, Bill C-10 which was introduced in October 2007. This bill to amend the
Income Tax Act did not progress beyond first reading, even though 313 days remained in
the session. However, the Senate may also have delayed another bill, Bill C-26, introduced
in 2009, to tackle auto theft. The Senate took six months before the Legal and
Constitutional Affairs Committee held its first hearing on the bill, in which law enforcement
officials expressed mixed views on the effectiveness of the measures (Senate, 2009). In
2015-19, just one government bill, C-101 on the RCMP, did not emerge from the Senate, but
it was only introduced on the second to last sitting day of the session. As will be seen below,
however, several private members’ bills were clearly shelved in various sessions.
Resolving differences between the Senate and House of Commons
Particular constitutional and practical considerations arise in the case of Commons bills
amended by the Senate. Since no bill may receive royal assent unless both houses approve
it in identical form, the House of Commons must decide what to do with amendments made
in the Senate to bills already approved in the Commons. In practice, the government of the
Andrew Heard 122
day reviews Senate amendments and proposes a motion in the House as to how to dispose
of them. Essentially the Commons has three choices: to accept the Senate amendments, to
amend the Senate’s amendments and send them back to the upper house, or to reject the
Senate’s amendments. If the House accepts Senate amendments, then a bill can be sent for
royal assent. However, the Senate must reconsider any bill if the House either amends or
rejects the changes made by the Senate. The Senate sometimes debates the issue in the full
chamber, but it may also refer the bill back to committee to provide a recommendation. In
most instances, the Senate acquiesces to the position taken by the House, in which case the
bill is ready for assent; in such situations, the Senate passes a motion that it “does not
insist” on its amendments.
13
But the Senate may also pass a motion to insist on their
original amendments, or it can make further amendments in order to find a compromise
the House might support; in both instances, the House of Commons must consider yet again
how to react to the Senate’s position.
The length of time spent in resolving differences between the two houses can vary
tremendously, depending on how supportive the government is of making changes to its
legislation and how intransigent the Senators are. Whether Senate amendments are
resolved in just one round of reconsideration by each chamber or turn into a ‘ping pong’ of
repeated rounds between the two houses, will have a big impact on the delays involved in
passing legislation.
13
The logic for Senate acquiescence is that it has fulfilled its role of providing ‘sober second thought.’ This
second thought occurs in two ways: a bill gets a second consideration in the Senate after the House has
already debated and approved it, and if the Senate does make amendments, then the Commons is itself forced
to consider the matter a second time.
123 Canadian Political Science Review
On most occasions, where these amendments occur with the support or acquiescence of the
government, the Commons approves the Senate changes very quickly. Interestingly,
resolution can occur when the Commons simply rejects outright all changes made by the
Senate; in those cases, the Senate usually acquiesces in short order. More time is required
to resolve differences when the government has a mixed reaction to the changes made by
the Senate. The longest periods of resolution occur when some amendments are accepted
while others are either amended by the House or rejected.
In the period of review for this study, the Commons and Senate have settled matters within
3 weeks in the majority of cases. However, the more contentious Senate amendments took
longer to resolve. The House and Senate took more than 60 days to resolve Senate
amendments on two occasions in 1997-2015, and five bills required over 60 days to settle
in 2015-19.
14
The resolution of Bill C-7 on public service labour relations stretched almost
a full year (350 days) between third reading in the Senate in June 2016 until its final
approval in June 2017; it is worth noting that the Senate took only 22 days to originally
consider the bill and grant third reading, while the Commons took 330 days to consider the
Senate amendments.
In the 2002-3 Session, two bills died on the order paper before Senate amendments were
resolved with the Commons. The fate of C-34 is easily explained, as it received third
reading in the Senate only 5 days before prorogation, but C-10B (Criminal Code, Animal
Cruelty) was a special case and was one of the most visible clashes between the two houses
14
The bills in 2015-19 were: Bill C-4 (labour relations) took 63 days, C64 (marine wrecks) 71 days, C-57
sustainable development) took 91, C-65 (workplace harassment) required 128 days, and C-7 (public service
labour relations) saw 350 days of consideration before the Senate and House of Commons came to an
agreement.
Andrew Heard 124
in the entire period of study. C-10B was one of two bills split from original C-10, with the
Commons agreeing to the split. The Senate passed C-10A (dealing with firearms) without
amendments after a total of 55 days. However, C-10B had 232 days in Senate before third
reading was given with 5 amendments included. The Commons then agreed to two of these
amendments, disagreed with another two, and amended the remaining Senate alteration.
The Senate referred this matter back to committee and adopted its report, insisting on one
amendment the Commons had disagreed with, replacing another, and amending the third.
The Commons replied with disagreement to all the new changes. By this time, four months
had passed. The Senate took another 37 days before referring the matter back to
committee. Parliament prorogued 6 days later without resolution. The bill spent 167 days
in unresolved disagreement between the two houses, and a total of 399 days since C-10
was originally introduced in the Senate.
Interestingly, disagreements between the two houses were resolved in a comparatively
short 54 days over the only bill in 2015-19 where the Senate insisted on its amendments;
Bill C-49 dealt with a range of air and rail transportation issues. The House of Commons
initially accepted three of the Senate amendments, amended a further three, and rejected
six others. The Senate accepted the Commons amendments, acquiesced to the Commons’
rejection of most of its original amendments, but voted to insist on two of its amendments.
Nevertheless, the Senate did back down once the Commons rejected the outstanding Senate
amendments a second time.
There is one example of the Commons agreeing to Senate amendments on its second round
of re-consideration. This occurred with Bill C-2 on accountability in 2006, where the Senate
125 Canadian Political Science Review
insisted on some amendments to which the Commons had initially not agreed; however,
background deliberations led to the Commons to agree with the Senate amendments after
they had been sent back.
Two extended rounds of exchange between the Senate and House of Commons were rare in
the 1997-2019 period, with the Senate sending only 3 bills back to the Commons after MPs
had initially rejected Senate amendments.
15
But it is not clear why they occurred at all. If
the Senate’s principal task in legislative review is to provide sober second thought, then
that role appears to have been fulfilled with the Commons’ initial response to Senate
amendments. The Senate should consider limiting itself to obliging the Commons to
reassess legislation just once and accede to the wishes of the elected House once they are
made clear in response to the Senate’s amendment. The alternative is to pit unnecessarily
the wishes of elected MPs against appointed senators, with the Senate appearing to be an
obstacle rather than a complement to the elected chamber. To avoid protracted disputes
with the Commons, it may be necessary to more fully explain the need for specific
amendments in the message to the Commons.
The Senate as a Brake on Government Control of the Commons
This period of study provides an interesting insight into the role of the Senate in acting as a
brake on excessive government control of the legislative process. One measure we can use
to assess this role is to compare the degree of Senate activism in dealing with bills that
were and were not subject to time allocation by the government in the House of Commons.
15
C-10B in 2003, C-2 in 2006, and C-49 in 2018.
Andrew Heard 126
In recent decades, the increasing use of time allocation is generally viewed as evidence of
the cabinet’s control over the legislative process. In theory, time allocation limits the ability
of MPs to debate and amend legislation, which may require the Senate to reflect and
accommodate public reaction to a bill. The majority governments, headed by Chrétien and
Martin between 1997 2004, invoked time allocation in the House of Commons for 27 of the
213 government bills sent to the Senate. The Senate, controlled by the Liberals at the time,
was twice as likely to amend legislation that had been subject to time allocation than it was
for other bills (18.5% of bills with time allocation were amended versus 8.5% of other
bills). Even looking at the 2011-15 period of Conservative majorities in both chambers,
there is similar evidence of increased scrutiny of bills forced through the Commons. The
Harper government made widespread use of time allocation when it enjoyed a majority
government, invoking it 108 times for 50 of the 106 bills sent to the Senate. Excluding the
22 Appropriation Acts (for which time allocation is not used), a full 59.5% of government
legislation which made it to the Senate had been subject to time allocation.
Although Conservative senators were subject to such strong party discipline that they only
amended one bill in this period, they were almost twice as likely to attach “observations,”
pointing to improvements they believed could have been made, to bills that had been
subject to time allocation (18.0% of bills subject to time allocation, compared to 10.7% of
other bills).
In the 2015-19 period, the Trudeau government invoked time allocation in a higher
proportion of bills than did Harper’s majority government. A total of 94 times in 46
(54.8%) of the 84 government bills sent to the Senate. Excluding the 18 appropriation bills,
127 Canadian Political Science Review
70% of other government legislation which made it to the Senate had been subject to time
allocation. As in the previous period of study, the Senate took a more activist approach to
bills which had been subject to time allocation in the House. Of the 46 bills for which time
allocation was used, 23 (50%) were amended by the Senate, compared to just 6 (30%) of
the 20 non-appropriation government bills in which time allocation had not been used in
the Commons. These data clearly indicate that Senators have been significantly more likely
to amend legislation that was subject to government limitations on debate in the House of
Commons. Consequently, one can argue that the Senate functioned to some extent as a
brake on executive control of the legislative process in the 2015-19 parliament.
Treatment of Private Members’ Bills
The most problematic aspect of the Senate’s legislative record lies in its inefficient handling
of House of Commons private members’ bills. While these bills lack the authority of the
government behind them, they are nevertheless bearers of the democratic stamp of
approval given by the House of Commons. Changes in House procedures have created
greater opportunities for these bills to pass and to be concerned with more substantial
areas of public policy than was the case in previous decades. In the 36th Parliament, 1997-
2000, only 13 private members’ bills were sent to the Senate from the House of Commons.
But after reforms in the Commons, the number of private members bills rose in 2011-15 to
51 being introduced in the Senate after passage in the Commons; in 2015-19 the number of
private members’ bills from the Commons dropped to 25.
The general trend is for the Senate to pass significantly fewer private members’ bills than
government bills, and to take significantly more time to do so. Of 120 private members’
Andrew Heard 128
bills sent from the Commons in 1997-2015, 68 received royal assent (56.7%) and 6 were
amended (5.0%), while two had completed report stage but died before third reading (both
had been amended), and the rest languished almost untouched in the Senate. The disparity
between successful passage of government bills and private members bills grew even
wider in 2015-19. During this later parliamentary period, 25 private members bills were
sent from the Commons to the Senate, with only 10 (40%) receiving royal assent. Four
more bills made it through the committee report stage, without receiving third reading.
The Senate amended three (12%) private members bills, but only one of those received
third reading and royal assent (Bill C-224, exempting from criminal charges those who seek
treatment for a drug overdose).
In contrast to the 50 days that successful government bills spent on average in the Senate
between 1997 and 2019, private members’ bills averaged 163. It is important to note that
there was a noticeable slowing in the treatment of all bills over time, particularly for
private members’ bills. As Table Three shows, third reading was given in an average of 149
days for private members’ bills between 1997 and 2015, and this grew to 249 days in
2015-19. Between 1997 and 2015, those private members’ bills which did not pass had
spent an average of 231 days in the Senate prior to the end of the session. This figure grew
to 312 days in 2015-19.
Table Three: Senate Treatment of Government vs Private Members’ Bills
16
16
Data calculated from Senate, n.d.
129 Canadian Political Science Review
Type of Bill
& Period
#
Introduced
%
Amended
% with
Royal
Assent
Average
Days to 3rd
Reading
Government
1997-2015
504
7.2
92.9
42
2015-2019
84
34.9
98.8
96
Private
Member
1997-2015
120
5.0
56.7
149
2015-2019
25
12.0
40.0
249
The only direct defeat of Commons legislation in the entire study period involved two
private members’ bills. In 1998, the Senate adopted a committee report to not proceed
further with Bill C-220 dealing with profiting as an author from tales of one’s crimes. The
second defeat involved the controversial Bill C-311 introduced in 2010, which the
opposition parties in the Commons had succeeded in passing against the wishes of the
minority Conservative government. This measure would have required the government to
provide reports on action to counter climate change. In November 2010, C-311 was
defeated on second reading. In my view, an outright defeat of a measure passed by the
Commons steps beyond the bounds of the Senate’s accepted role to provide sober second
thought; a veto irreparably substitutes the Senate’s position in place of that of the
Commons. It should not matter whether it is a government bill or a private members bill,
measures that have received third reading in the Commons have the stamp of democratic
authority which the appointed senators should not usurp.
A number of private members’ bills have been victims of extremely lengthy delays, which
can amount to an indirect veto. It is instructive to consider, by way of example, the 7 bills
Andrew Heard 130
given first reading in the Senate on October 17, 2013. Four of these spent the remaining
654 days in the session without emerging from committee (one of which never completed
second reading). The other remaining three bills introduced on this day were eventually
enacted, although they required an average of 430 days between first and third reading.
The controversial Bill C-377, on reporting requirements for labour organizations, took 622
days to complete its journey through the Senate. Bill C-290, introduced in March 2012 was
another example of an indirect veto of a private member’s bill. Despite spending 556 days
in the Senate and completing the committee report stage unamended with 309 days left in
the session, it never received third reading. The most-delayed bill in the entire period of
study, however, was C-243. This bill, dealing with a national maternity leave strategy, was
introduced into the Senate on June 14, 2017 and spent 746 days there before dying on the
order paper; this two-year limbo occurred despite it having been approved at committee
report stage 204 days before dissolution. Senator Harder signaled the problems faced by
private members’ bills in his report on the 2015-19 parliament. He believes that bills which
die on the order paper “tend to be those that would have sufficient support to pass, but are
opposed by small but determined factions” (Harder, 2019: 10).
The main limitation that private members’ bills face in the Senate is competition with
government bills for time on the Senate floor and in committee. Private members’ bills
generally receive a much lower priority and are often squeezed in only as opportunities
occur; inevitably, it is easier to accommodate private members’ bills earlier in the life of a
parliament than later, when more government bills are sent up from the House. The 2015-
19 period provides a clear illustration of these time pressures. All 11 private members’ bills
which were introduced into the Senate by the end of 2017 progressed through committee
131 Canadian Political Science Review
hearings and report stage, and 9 of those 11 received royal assent. Of the 11 bills
introduced in 2018, however, only one bill was granted royal assent, while 3 died in
committee and 7 others never received second reading; none of the three bills introduced
in 2019 received second reading. In some respects, these trends are not surprising, given
that the time government bills spent in the Senate had jumped to an average of 96 days
from 42 in 1997-2015.
Clearly, the Senate needs to address its treatment of private members’ bills already
approved by the Commons. And it must remain sensitive to the autonomy inherent in the
concept of private members’ bills. It should not normally be a reason to shelve a bill simply
because the government of the day is opposed to a measure approved by a majority of
backbench MPs. One potential way for the Senate to handle more of the bills on its plate is
to extend the number of sitting days. Although the Senate has been sitting for more days of
the year than it used to, it still only sits for about two-thirds of the number of days as the
House of Commons (Library of Parliament, “Parliaments and Sessions”).
Discussion of the ‘Non-Partisan’ Senate in 2015-19
As has been shown in this paper, the way in which the Senate treats legislation from the
House of Commons has changed in the 2015-19 parliament compared to that of 1997-2015.
The most notable difference is a significant increase in the number of government bills that
the Senate amends. Once Appropriation Acts are excluded from the count, Senators
amended 45% of government bills already approved by the House. As Table Two reveals,
this is more than twice the rate of amendment of any other session in the prior 18 years.
While the Senate has often been criticized for not doing enough (such as during 2011-15),
Andrew Heard 132
this is the first time in modern history when Canadians might have to consider seriously
what level of activity might be too much. However, the higher rate of amending activity was
not accompanied by a more intransigent attitude in insisting that MPs accept those
amendments. Senators acquiesced in short order to MPs’ judgment on Senate amendments
in 28 of the 29 Commons government bills altered by the Senate. In this section of the
paper, attention will focus on the implications of changes made to the senatorial selection
process by the Trudeau government for the Senate’s role in legislative review.
One of the issues is how non-partisan the Senators appointed by the Trudeau government
really are. While each has chosen to sit as members of the Independent Senators Group, it is
clear that a number of those appointed did in fact have histories of supporting political
parties. Access to the chief electoral officers’ databases on political donations allows one to
identify individuals with party sympathies through their history of political donations
(Elections Canada, “Search for Contributions”). Of the 50 Senators appointed in the first
Trudeau government, 19 can be identified as having been candidates for or contributed to
political parties, either federally or provincially. The Trudeau government clearly favoured
individuals with a Liberal connection over those with known connections to other parties.
Of the 19 with records as party donors or candidates, 16 (32% of all Trudeau appointees)
had clear Liberal connections, while three had donated exclusively to parties other than the
Liberals. Two had held elected office under a party banner: Pat Duncan was the Liberal
premier of the Yukon, while Diane Francis was a cabinet minister in Bob Rae’s NDP
government in Ontario. A couple of the party donors only gave a few hundred dollars,
although most were for much more substantial sums. Two individuals stand out as major
Liberal supporters, given the large sums they had donated over the years. Quebec’s Marc
133 Canadian Political Science Review
Gold contributed $54,809.18 to the Liberal Party of Canada between 2004 and 2015 and a
further $25,770 to the Liberal Party of Quebec; it should be noted that he also gave much
smaller sums on occasion to other parties ($14,400 to the federal Conservatives, $3,650 to
the PQ, and $2,500 to the ADQ) (Elections Canada, “Search for Contributions”). These
Liberal connections are all the more relevant since Senator Gold was appointed to be the
new Government Representative in January 2020. Another strong financial backer of the
Liberal Party of Canada prior to his appointment to the Senate was Stan Kutcher of Nova
Scotia, a candidate for the Liberals in the 2011 federal election and donor of $32,693.26 to
the Liberal Party of Canada between 2004 and 2018 (Elections Canada, “Search for
Contributions”).
Even using this raw yardstick of a record of prior Liberal donations or candidature, one can
see a shift in appointment profiles over the four years of Trudeau’s first four years as prime
minister. Among the 30 Senators appointed in 2016 and 2017, there were eight individuals
(26.7%) with clear Liberal connections and three with links to opposition parties. In 2018-
19, however, 38.1% of Senate appointees had Liberal connections (eight of 21), while none
met the same criteria for opposition party support. Given the choice of five candidates
provided by the arms-length advisory committee, it appears that the Prime Minister’s
Office is showing some clear preference for those with Liberal connections. One can clearly
conclude that the Trudeau appointees are not, as a group, free of partisan sympathies.
Media coverage of the political leanings of Trudeau’s Senate appointees has raised a
question mark over just how non-partisan his choices have been. A Hill Times analysis of
recorded divisions (where each Senator’s vote on a motion is recorded) in the 2015-19
Andrew Heard 134
parliament found that members of the ISG appointed by Trudeau had voted with the
Government Representative, Senator Peter Harder, more often than any other group of
Senators at 85.8% of the time. In contrast, other ISG members who had been appointed
earlier to the Senate by other prime ministers had voted with the government
representative 73.6 % of the time. Even the remaining self-identified Liberal Senators had
been less staunch supporters than Trudeau appointees, siding with Senator Harder in
79.2% of their votes. Unsurprisingly, perhaps, Conservative Senators actively opposed
most government measures, voting with the Government Representative only 18.1% of the
time (Wright Allen, 2019).
17
Eric Germier conducted an earlier analysis for the CBC in 2017,
in which he claimed that Trudeau-appointed Senators had voted with Peter Harder 94.5%
of the time. He concluded that “just seven have voted differently from the government's
representative on multiple occasions” (Grenier, 2017).
18
Combining the evidence that at least 32% of all Trudeau-appointed Senators had Liberal
ties with the evidence that Trudeau-appointed Senators were more likely than others to
vote with the government’s representative in the Senate, one could hypothesize that this
core of Liberal supporters appointed as non-partisan Senators were more likely to
support government positions than other new appointees. However, an analysis of the data
only partially supports this supposition. Using a dummy variable for a prior record of
having donated or stood as a candidate for either the federal or provincial Liberals, one can
test whether this measure is correlated to the percentage of times they voted the same as
17
Also see a previous study of Senate votes through mid-2018: Evelyn and Wright Allen, 2018.
https://www.hilltimes.com/2018/07/25/independent-senator-voting-shifts-away-liberal-rep-isg-still-likely-
allies-152033-152033/152033.
18
At the time of this analysis, Trudeau had appointed 29 Senators.
135 Canadian Political Science Review
the Liberal government’s representative in the Senate, Peter Harder. The Pearson’s
correlation between these variables is 0.21441, which looks like a positive result, but it
fails the test for statistical significance.
19
On balance one can say that previous Liberal
supporters appointed to the Senate did have a higher propensity to vote with the
government on recorded votes, but not remarkably more than other Senators appointed by
the Liberal government. That said, one still needs to assess the impact of Trudeau’s
appointees, taken as a whole group, on the passage of government legislation through the
Senate.
If the thesis held, that Trudeau-appointed Senators have been stalwart supporters of
Liberal government measures, then one would have expected the rate of Senate
amendment of government bills to decline as the new Senators become the largest group in
the upper house. But instead, the rate of amendment accelerated during the 2015-19
parliament. Table Four shows that over half of amendable bills were altered by the Senate
in both 2018 and 2019, when the ISG formed the majority in the chamber. It would seem
improbable for Trudeau appointees to be voting over 85% of the time in favour of
government positions and yet have this high rate of amendment to government bills in
2018 and 2019.
Table Four: Amendments to Government Bills from the Commons by Year, 2015-19
20
19
The P-Value is .139055; the result is not significant at p < .10. One-way ANOVA also failed to find a
significant difference between voting patterns of new Senators with Liberal connections and those without f-
ratio value is 2.21654; the p-value is .143363 and not significant at p < .10. Data for donations came from
Elections Canada, “Search for contributions.” Data on individual voting records was drawn from Wright Allen,
2019.
20
Data calculated from House of Commons, “Status of House Business.”
Andrew Heard 136
Year of
3rd
Reading
# of
Bills
#
Amended
% of
Total
Amended
Appropriation
Bills
Amendable
Bills
% of
Amendable
Amended
2015
1
0
0.0
1
0
n.a.
2016
14
3
21.4
5
9
33.3
2017
20
4
20.0
5
15
26.7
2018
24
11
45.8
4
20
55.0
2019
24
11
45.8
3
21
52.4
The answer to this counter-intuitive contradiction may lie in flawed inferences drawn from
the available data on Senators’ voting patterns. Published examinations of Trudeau
appointees’ voting patterns are based entirely on the data from the recorded votes on
division in the Senate, where each Senator stands and declares their vote. But the nature of
this data gives a very incomplete and probably erroneous view of the full range of
measures supported or opposed by individual Senators.
An insurmountable analytical hurdle arises because the majority of business in the Senate
is conducted by voice votes, where no record is made of how each Senator voted. In a voice
vote, the Speaker first asks, “Is it your pleasure, honourable senators, to adopt the motion?”
A motion is declared adopted if there are no dissenting voices. If there is a mix of yes and
no shouts in response, then the Speaker calls all those in favour to say “Yeaat once, and
then those against to say “Nay.” The vote is decided on the basis of whether the Speaker
judges the Yea or Nay voices are loudest. Just over half (15 of 29) of the government bills
that were amended in the Senate had no recorded division of votes on any amendments. In
a number of cases, there are recorded votes only on proposed amendments that are
defeated, but no recorded division on amendments that are accepted.
137 Canadian Political Science Review
Most amendments made to bills in the Senate are proposed by the committee which
studied the bill in detail. Those amendments are proposed in a report to the full Senate,
which votes to accept, reject, or amend the committee report. And in most cases, reports
are simply adopted by a voice vote; indeed, in the entire 2015-19 parliament, there were
only 3 instances of recorded divisions on committee reports in the Senate (Senate of
Canada, “Votes”). Where records are taken of divisions on amendments, it is usually on
individual amendments proposed at third reading, but only 7 of the 29 government bills
altered by the Senate in 2015-19 had amendments passed at third reading (Senate of
Canada, “Progress of Legislation”).
Of the 29 bills that were amended, 10 proceeded through the Senate without a single
recorded vote on division, including those votes on whether to insist on amendments that
had been amended or rejected by the House of Commons. Five other bills had no recorded
vote on their amendments but did have a vote on division to accept the House of Commons
position on those amendments. Another six had recorded votes on amendments, but only
voice votes on accepting the House of Commons judgment on those amendments. Eight had
recorded votes both on some amendments and on dealing with the House response (Senate
of Canada, “Votes”).
21
Some recorded divisions votes were for third readings of bills, as
already amended, while other recorded votes were on whether the Senate should accept
the House of Commons position on Senate amendments; in those instances it would be
entirely appropriate for ISG Senators to vote with the government representative, as the
Senate’s job was done and the constitutionally appropriate course of action was to accede
21
Note that some recorded votes taken for amendments were defeats of those proposals.
Andrew Heard 138
to the judgment of the House. In short, the data on recorded votes is simply insufficient to
draw any reliable conclusions on overall voting on amendments to government bills by
Trudeau-appointed Senators.
As a consequence, it is very likely that many Trudeau appointees supported amendments
to government bills, but in voice votes that left no trace of how they actually voted;
alternatively, some may simply have been absent from the chamber when it came time for
a vote. As the Independent Senators Group grew in size and came to dominate committees,
their members could work on amendments and convince enough of their ISG colleagues in
caucus meetings to support the adoption of the committee report when it came to a voice
vote in the Senate. Indeed, this possibility appears to be the logical explanation of how an
increasing number of bills came to be amended as Trudeau-appointed Senators grew in
number, despite most of those Senators voting with the government representative most of
the time on recorded votes.
It should be noted that there are worrisome aspects to this trend of amending bills by voice
votes among loose schools of fish in the Senate, to borrow a phrase from Eugene Forsey.
One concern is that the process of legislative approval loses transparency when the public
cannot tell how specific parliamentarians voted in most of the key votes. This lack of
transparency is compounded by the other problem of lobbyist pressure on individual
Senators to support amendments in anonymous voice votes. The increased legislative
activity by the Senate has resulted in Senators becoming increasingly targeted by
professional lobbyists. Most Senators no longer answer to party whips who would have
139 Canadian Political Science Review
ensured whole groups of Senators normally voted according to their caucus position.
22
With the majority of Senators acting as free agents now, lobbyists can identify and try to
persuade independent Senators on committees, where most successful amendments are
first proposed and approved. Other Senators might be persuaded to support the
committee’s recommendation for amendments once it came to a voice vote in the full
Senate. In the period from 2011 to 2016, reported contacts by registered lobbyists were
less than 500 per year, but this grew steadily with Trudeau’s new appointment process. By
2018-19, reported contacts with Senators by registered lobbyists had more than tripled to
1503 (Harder, 2019: 6).
Conclusion
The Senate clearly has the potential to play a meaningful role as a chamber of legislative
review. The data from 1997 through 2019 reveal periods when Senators were quite
actively engaged in amending government legislation that had already been approved by
the House of Commons. The Senate was significantly more likely to amend bills that had
been subject to time allocation during their consideration in the Commons. This finding
supports the role of the Senate as a brake on executive dominance in the House of
Commons, by ensuring further debate on possible changes to controversial bills. On many
occasions the House of Commons accepted the Senate’s amendments, validating the
benefits of sober, second thought by the upper house. When MPs either rejected or
amended Senate changes, Senators almost always acquiesced to the judgment of the House;
22
The only whipped Senators are members of the Conservative caucus and the three Senators in the
Government Representative’s Office. While Peter Harder was the official Government Representative in 2016-
19, he was assisted by two other Senators, Diane Bellemare and Grant Mitchell; all three were obliged to vote
in favour of government-supported measures.
Andrew Heard 140
only on rare occasions did Senators either make further amendments or insist on their
original changes. At times, as well, the Senate has not lived up to its potential, with few to
no formal amendments proposed to Commons bills; these times have notably occurred
when one party has a majority in both houses of parliament. The record of Senate activity
in this period also reveals a very clear distinction between the attention given to
government bills and to private members’ bills from the Commons. A large portion of
private members’ bills risk dying on the order paper in the Senate, despite spending
lengthy periods there and having the stamp of approval from elected MPs.
The data from this period showed that the Senate has been dramatically more active since
the Trudeau government changed the process for selecting new Senators. The 2015-19
parliament saw the Senate amend Commons bills at more than twice the rate than the
busiest session between 1997 and 2015. Quite clearly the influx of over 50 new Senators,
charged with using their individual judgment rather than answering to caucus whips, has
radically reshaped the culture in the Senate. Despite the increased autonomy exhibited by
Senators, however, the upper house did not confront the House of Commons any more than
in the earlier periods. So far, independent Senators have maintained the Senate as a
complement rather than adversary to the Commons in the legislative process. However,
controversy has arisen with the new appointment process, with clear evidence that
promises to appoint ‘non-partisan’ Senators did not preclude the government from filling a
third of empty seats with individuals who had a history of Liberal support. Debates have
arisen because the record of votes in formal divisions reveals that the Trudeau appointees
have more consistently voted with the government representative than any other group in
the Senate. But other data discussed in this study, however, show that these recorded votes
141 Canadian Political Science Review
are only a subset of actual decisions in the Senate; most amendments to government bills
occur through voice votes in which individual Senator’s votes are not identifiable. In
practice, past sympathies do not appear to have kept many of the new Senators from
supporting amendments to Liberal government bills.
Two clouds appeared on the horizon from this brief look at the 2015-19 Senate. One worry
is the increased pressure on individual Senators by professional lobbyists, which is
concerning when most changes to legislation occur anonymously through voice votes;
there is little effective transparency in lobbying efforts when one cannot match targeted
Senators with their voting on specific measures. The other concern arises from the
increased propensity over the life of this parliament for the Trudeau government to
appoint new Senators with a record of Liberal support, while ignoring those with
connections to other parties. So far, at least the reforms to Senate appointments have had a
positive effect, with undoubted autonomy and independence of mind being exhibited
collectively by the upper house. This larger impact in the policy process has raised the
profile of the Senate and helped improve public opinion of the chamber (Nanos, 2019). But
that improvement is transitional for the moment, and much hinges on the choices made in
the next parliament as to whether true non-partisanship takes root in the Senate. The
collapse of formal party caucusing risks becoming a cover for informal domination of the
Senate by individuals with career profiles and personal values that broadly favour left of
centre policies. The true test of non-partisanship down the road will come if a Conservative
government faces a future Senate filled with progressive sympathizers, however they label
themselves. Will the Senate flex its muscles and become more confrontational in blocking
or amending legislation it opposes?
Andrew Heard 142
143 Canadian Political Science Review
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In the 2014 reference, the Supreme Court sought to discover the Senate's “essential nature” in order to determine what reforms parliament could legislate unilaterally. Making use of a classification model found in comparative and historical studies, the Court concluded that the Senate was a “complementary legislative body of sober second thought.” This article re-examines the Court's narrow definition of the Senate's perceived role and presents evidence that its essential characteristics are direct continuations of various pre-Confederation design principles. Limiting a description of its architecture to a single model that eclipses all other roles the Senate may play shifts the debate on Senate reform, which in the recent past has laid emphasis on resolving the conflict among the models embedded in the upper chamber's essential characteristics. The article concludes by reviewing previous constitutional initiatives that aimed at bringing those models more in tune with modern Canada and by making suggestions about how reform proposals could better succeed.
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I have a stake in our succeeding in finding a way forward for the Senate, and not because I expect to be there a long time — in fact, I have less than two years before I reach the constitutional age of retirement. I believe the Senate can still serve a useful, indeed important, purpose for Canadians. I have seen its potential “up close and personal,” as they say, but I don’t believe it is reaching anywhere near that potential now. In fact, it is very frustrating and sometimes even discouraging to witness what is going on. Boldness is indeed required for Senate reform, and I suspect that, for some, a good dose of courage may be needed as well.
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The Canadian Senate in Bicameral Perspective is the first scholarly study of the Senate in over a quarter century and the first analysis of the upper house as one chamber of a bicameral legislature. David E. Smith’s aim in this work is to demonstrate the interrelationship of the two chambers and the constraints this relationship poses for Senate reform. He analyses past literature on the Senate and current proposals for reform such as a Triple-E Senate and compares Canada’s upper chamber with those of Australia, the United States, Germany, and the United Kingdom, noting a revival of interest in Canada and abroad in upper chambers and bicameralism. Drawing on parliamentary debates and committee reports, as well as a range of broad secondary sources, The Canadian Senate in Bicameral Perspective examine the Canadian Senate within the international context, shedding light on its role as a political institution and arguing for a renewed investigation into its future.
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Drawing on perspectives from both law and political science, Canadian Constitutional Conventions surveys the rich landscape of the unwritten rules that affect the constitution and play a vital role in our political system. Thoroughly revised and up to date, the second edition is essential reading for students of Canadian democracy as well as professionals working in this country's legal and political realms.
Harmonizing Regional Representation with Parliamentary Government: The Original Plan
  • Janet Ajzenstat
Ajzenstat, Janet. 2009. "Harmonizing Regional Representation with Parliamentary Government: The Original Plan." In The Democratic Dilemma: Reforming the Canadian Senate, ed. Smith, Jennifer. Montreal & Kingston: McGill-Queen's University Press: 28-30.
Our Scandalous Senate
  • J Boyer
  • Patrick
Boyer, J. Patrick. 2014. Our Scandalous Senate. Toronto: Dundurn.