Hugh Segal is the principal of Massey College and a senior adviser at Aird and Berlis LLP. He sat in the Senate as an Ontario Conservative between 2005 and 2014.
Dire predictions that the creation of a more independent Canadian Senate would inevitably lead to a clash with the democratic will of the people have, so far, been largely exaggerated.
But a controversial bill that regulates oil tanker traffic on British Columbia’s northern coast threatens to test this assertion. Should senators go too far and kill Bill C-48 – a result for which some have lobbied – the fragile but growing credibility being built within the upper chamber could be put at risk.
Given the general mood of voters these days, I doubt Canadians will be happy with an unelected group of legislators scuttling a bill that was part of the duly elected government’s 2015 election campaign. The possibility that this bill could be voted down has already triggered criticisms of imperious behaviour and lack of accountability. Killing it will provide critics with the opportunity to utter a great big “I told you so.”
The proposed bill has been the subject of intense cross-country lobbying not seen in years. Many in the energy-producing provinces of Alberta and Saskatchewan despise the bill, and political leaders such as Premiers Jason Kenney of Alberta and Scott Moe of Saskatchewan have lobbied the Senate to make sure it dies. But the Senate as the agent of death weakens their cause. The Senate as the proponent of modifications makes far more sense. There was a reason Mr. Kenney was part of a government that campaigned for an elected Senate. Was he of one belief then and of another now?
This “kill the bill” effort took a step forward last week when the Senate’s committee on transport and communication voted to recommend that the Senate not proceed with the legislation.
This is a rare occurrence, and the committee’s decision can be overturned by the Senate itself. I hope it is. The mere fact that the Senate is threatening to kill a government bill passed by elected MPs skates too close to the capricious anti-democratic edge.
The Senate was set up as a chamber of sober second thought. Its role is to review legislation, point out flaws, listen to Canadians’ views, recommend changes, append observations and, if needed, provide amendments for consideration by the House of Commons, which can then accept or reject them. The Senate, as the unelected body, is expected to defer. This is underscored by a Supreme Court of Canada reference in 2014, when it stated that the appointed status of senators confines them mainly to conducting legislative review “rather than as a co-equal of the House of Commons.”
As Sir John A. Macdonald said, the appointed Senate must not put itself in opposition to the “deliberate and understood wishes of the people.” MPs are elected by the people. Should the people disagree with or disapprove of their MP, he or she will not survive the next election. Appointed senators suffer no such risk.
Senators must also keep in mind the deference owed to explicit campaign promises; the British principle known as the Salisbury Convention stipulates that the upper house will not defeat a specific campaign pledge decided on in a general election. For the record, the promise to regulate oil-tanker traffic was made June 29, 2015, when Justin Trudeau, then the leader of the third-party Liberals, unveiled his environmental policy in Vancouver.
Over generations, this respect for the desires of voters has led to considerable senatorial self-restraint. Since the Second World War, only four bills have been overturned by the Senate; three of them died on tie votes in the full Senate itself. Generally speaking, a bill should only be killed in the most egregious situations, such as the violation of the Charter rights of an identifiable group.
Since the day Mr. Trudeau gave up the right to direct senators how to vote, the upper chamber has become more assertive and active – and that’s a good thing. Twenty-five per cent of the bills that have arrived in the Senate have been amended, and many of those amendments have been accepted by the House. The Senate is doing its job and Canadians appear willing to give the upper house a second chance. But if the new Senate chooses to oppose the wishes of the people, as represented by the elected House of Commons, it threatens its credibility by overstating its role.
Killing a government bill that was part of an election platform that elected a majority government, and which was passed in the House with multiparty support, is simply not in the Senate’s job description – not as long as Canada is a parliamentary democracy, premised on the British model, as specified in our very Constitution.