As Bill C-45, the marijuana legalization legislation, works its way through the Senate, a number of senators are faced with an perennial problem: how do they exercise their role of providing advice to the Crown and oppose a government Bill that has the support of the democratically elected House of Commons? By passing the Bill at second reading, the Senate has acted appropriately in moving it to committee for further study. If it had been defeated before committee, there would surely have been outrage across the country that may well have led to fundamental challenges to the institution. However, as the Bill now proceeds through the legislative process, Senators should continue to think carefully about their role and how they choose to express their dissent.

When a senator first enters the Chamber after her appointment and before she swears her oath, she stands next to the Clerk’s table, in front of her peers, and is forced to listen to a personal message that is delivered to her in the name of Her Majesty the Queen. This summons lays out why the senator is being appointed and the responsibilities she is to fulfil on behalf of the Crown. The senator is informed that Her Majesty has summoned her to the Chamber “for the purpose of obtaining your advice and assistance in all weighty and arduous affairs which may the State and Defence of Canada concern.”

Since Confederation, senators individually and collectively have struggled with how to provide their advice to the Crown. At the time of Confederation, they occasionally defeated legislation put to them by the government from the House of Commons. That is why there was a delay in Canada establishing the Criminal Code until 1892. But not long after Confederation, the Senate fell into a less confrontational pattern that has persisted through most of our history. This would have most certainly been influenced in part by the British Parliament Act of 1911 and senators wanting to avoid similar constraints to their own powers.

While the Senate still does have a role to play in reviewing legislation and providing its advice to the Crown, senators have been careful over time to find appropriate conventions to raise their concerns. For instance, the Senate has often insisted on review provisions in legislation as they did with the Jean Chrétien government’s antiterrorism Bill in the aftermath of 9/11. When they foresee problems, the Senate will often study legislation when it is still before the House of Commons as a way of flagging those concerns for the government in the hope those challenges will be addressed before the Bill arrives in the Senate. Senators can also attach reports to a Bill to outline any concerns they may have and demand a response from the government to that report. And on occasion, the Senate will amend legislation. However, senators are generally cautious to amend a Bill only to improve its function, without questioning the policy objective of the government of the day.

The common thread through all these legislative tactics is they allow senators to fulfil their responsibility of providing advice to the Crown, with the recognition that the Senate does not have a democratic mandate to override the objectives of the executive and the duly elected House of Commons.

The Senate has been tempted from time to time to overstep these norms and wield its unfettered legislative powers, but there have only been three periods in our history when the Senate regularly acted to contest government policy objectives. The first was that early post-Confederation period. The second was in the 1950s and 1960s. And the third, which should give today’s Senators pause, was the mid-1980s, when the Liberal majority in the Senate felt it was in their political interests to use the Senate to oppose the economic policies of the Mulroney government. The Senate at that time pushed back on changes to employment insurance, to a proposed reorganization of government departments and, most famously, they obstructed the Canada-United States Free Trade agreement. Of course, despite the fact Liberal Senators felt this obstruction was in their partisan interests, their colleagues in the House of Commons failed to reap the advantage in the 1988 election.

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This activism on the part of the Senate, combined with a number of scandals and the rise of the Reform Party, resulted in a hit to the institution’s reputation from which it has never fully recovered. Canadians have regularly questioned the relevance of the institution and those serving within it.

In the face of more recent scandals, senators would be wise to consider this history and whether it is in their interests to attempt to defeat the marijuana legislation, which is generally popular and for which the government has a clear democratic mandate. While previous confrontations between the Senate and government have been resolved through politics, politicians will bring the Constitution into play if the Senate crosses a line that cannot be tolerated by the public. Perhaps senators should find more appropriate means to provide their advice.

Photo: Minister of Public Safety and Emergency Preparedness Ralph Goodale, Minister of Health Ginette Petitpas Taylor, Minister of Justice and Attorney General of Canada Jody Wilson-Raybould and Parliamentary Secretary Bill Blair listen to a question about Bill C-45 during a Senate Committee of the Whole, on Feb. 6, 2018. THE CANADIAN PRESS/Justin Tang.

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Chris Montgomery
Chris Montgomery served as director of parliamentary affairs for the leader of the government in the Senate from 2007 to 2013. He now works for the Canadian Association of Petroleum Producers in Calgary.

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