Canada’s Senate has morphed into a body that’s pushing the bounds of its conventional role in Parliament and the legislative process. That was exemplified by Senate obstructionism on Bill C-11 and the government’s use of a time allocation motion in response. It’s a new normal for stakeholders and the government, making it harder to predict the course of legislation through the Upper House. For stakeholders wishing to engage with government legislation, this provides new opportunities for engagement as the Senate asserts its political independence.
A bit of History (stay with me)
Justin Trudeau kicked off his leadership with a bold move when he got rid of the Liberal Party’s Senate caucus in 2014. The future prime minister’s leadership team likely thought hard about the potential outcomes of overhauling the Senate’s structure but at the time, the reward outweighed the risk. It was politically pragmatic for a leader who was campaigning on doing things differently (and who wasn’t polling particularly well at the time). It can’t have come as a huge surprise then, that senators began asserting their own political will during the life of this government.
In the recent past, the Senate had little influence on the legislative process – with few exceptions – and was seen as a legislative body that would almost automatically acquiesce to the government of the day. A former Ontario MP and parliamentary secretary to Prime Minister Jean Chrétien called the pre-2014 Senate a “monolithic rubber stamp” in a 2016 interview with the Hill Times. He guessed that Trudeau’s reforms would lead to a situation where the government would have to pre-empt its legislation with consultations with senators when a policy was still at the conceptual level. He didn’t think, however, that the reforms would lead to unintended consequences for the Trudeau government. And, for a while, they didn’t.
But in what turned out to be a prophetic remark, Nelson Wiseman, a professor in the Department of Political Science at the University of Toronto said in 2016, “the government is going to be shocked on a lot of things and Trudeau’s ‘sunny ways’ are going to start getting a lot of clouds.”
The new normal
The time allocation motion moved by Senator Marc Gold on Bill C-11 is an indication of a changing Senate. It was the first time this government has used time allocation in the Senate to break a deadlock, and while setting a precedent itself, the move was in response to a similarly precedent-setting level of opposition obstructionism from the Conservatives.
“I think that the Opposition had made clear that this was going to be a bill they would never agree to,” said Conservative Senator Scott Tannis on C-11.
Traditionally, opposition members in the Senate would study a bill, suggest amendments, then get out of the way and allow the government to pass its bill in the form it deemed fit. In this case, senators were emboldened to dig in their heels and say no.
For the government, opposition obstructionism and Independent senators who don’t toe the traditional party lines mean continued headaches and a requirement to meaningfully engage with senators to whip votes.
“Our function is to study the bill, not to put a little whipped cream and a cherry on the top of it,” said Senator Paula Simons. Later, she emphasized, “the Senate is not in the business of rubber stamping bills,” which highlighted how some independent senators appointed under this government see their role. So, now not so much a “monolithic rubber stamp” legislature.
For stakeholders, the new normal for the Senate of Canada in 2023 means more avenues to seek amendments and real sober second thoughts on legislation. It demands an awareness of how Senate obstructionism of government legislation can upset expectations. It also means understanding what motivates senators. Stakeholders should work with independent senators individually to communicate real concerns over proposed government legislation and advocate for substantive amendments. We’ve been thinking deeply about how to make an impact through the Senate, and we’re ready to assist you with those strategies.
What’s next?
Maybe one of the consequences of a Senate that is slowly realizing its own independence is a stronger bargaining position with the government. Perhaps, going forward, the government and the House of Commons will be more open to accepting meaningful amendments and working with senators on their concerns, rather than treating the Upper House as an archaic formality in the legislative process.
