Canada’s upper house has undergone a facelift since the Independent Advisory Board for Senate Appointments was established in 2016. Whether these changes will mean genuine reform and have a lasting effect remains to be seen.

The Senate now features a growing number of independent senators, representing an emphasis on senators’ experience, expertise and conscience over explicitly partisan concerns. These changes, however, might simply be cosmetic in nature. Some senators still hesitate to push back on legislation and thus can fail to fulfill their role as voices for those whose interests are not represented in the majority-based House of Commons.

Sober second thought?

Given Canada’s vast geographical area and diverse nature, the Senate’s original purpose was to ensure that regional viewpoints were considered in Ottawa. Since Confederation, this role has expanded to represent minority voices and interests within an electoral system that was designed to serve the majority. The introduction of the independent appointment process was supposed to restore public trust in the Senate by allowing it to effectively play its role as the chamber of sober second thought. It was expected that senators would no longer feel compelled to take political orders from the government.

While the long-term results of the independent appointment process remain to be seen, it appears that the new process has allowed the Senate, at least to some degree, to act more as a balancing counterweight to the will of the majority. However, one need look no further than the way Bill C-83 progressed through this new Senate earlier this year to see that wrinkles may remain when it comes to senators taking a stand on their sober second thought.

In summer 2019, we had the opportunity to work as interns in the office of Senator Kim Pate and follow the debate on Bill C-83, which proposed changes to the Corrections and Conditional Release Act regarding the practice of segregation — also known as solitary confinement — in federal prisons. Bill C-83 should have been the perfect opportunity for an independent Senate to fulfill its role representing minority rights and interests: people in prison are a small minority of the population, they hold very little political weight, and they include a large overrepresentation of Indigenous and other racial minority groups.

Nearly every expert witness who testified before the Senate committee studying the Bill raised concerns that the measures would put prisoners’ lives and well-being in danger and risked violating their Charter of Rights and Freedoms protections and their human rights. The committee subsequently approved a number of amendments to protect these rights and ensure the Bill could better withstand constitutional scrutiny. The Senate as a whole agreed, with many senators speaking passionately to the issues at play as the amendments were passed.

Senate amendments rejected

Then things unravelled. The legislation, which had been sent back to the House of Commons, was returned with most of the amendments rejected. This occurred during the final week of the sitting, when the House had already risen. Senators knew that if they did not pass the legislation as it had been returned by the House, the Bill would likely die on the order paper. What was an independent Senate to do? Pass legislation senators clearly had thought was in need of significant change? That is, forget their earlier amendments and allow the government (which had appointed many of them) to move forward with its agenda unchecked? Or was it time for an independent Senate to truly embrace its role?

Spoiler alert: it was not. In a nail-biter of an evening, when it came time to stand up for a recorded vote, only 26 senators stood their ground.

So why the change of heart? A common refrain heard from senators was that although they had voted on the specifics of C-83 during committee meetings, many said they did not feel they had sufficient knowledge to make certain changes to the Bill. This raises a conundrum. If those making the decisions do not feel they have adequate knowledge to propose legislative changes, and those who have the knowledge are not the decision-makers, how is the best law going to be crafted?

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An essential part of committee decision-making is the process of hearing from witnesses: academics, experts and other stakeholders who help senators equip themselves with information to make their decisions. If, after that process, they still do not feel they are in a position to make an informed decision, it should be their responsibility to acquire that knowledge. There is no one else more informed who has the decision-making authority. It must be them. That is where the buck stops.

Voting against an amendment because one does not feel adequately informed is not a neutral act. It is making the active choice that the proposed option is better than the amendment. That is not the action of a cautious and responsible parliamentarian, but is instead a dangerous abdication of responsibility in one of the most important roles in this country. It could also reflect deference to the view that the government knows best. Maybe it is simply a question of following suit with one’s colleagues.

So much for an independent Senate.

A key underlying issue seems to be anxiety about the unelected nature of the Senate. The transformed, independent Senate is trying to figure out its proper mandate and establish the boundaries it needs to work within as an unelected chamber of Parliament. In fact, some senators find the issue sufficiently pressing that they insist that the future of the Senate should be an issue in this month’s federal election.

Yielding to a “government knows best” approach suggests that some senators may have felt unease at overruling their elected colleagues from the House of Commons. Yet that effectively casts doubt on the true role of the Senate as the chamber of sober second thought and defeats the purpose of the Senate as an institution, which is to reconsider legislation outside of the lens of the majority’s interest and speak for those without power in the majority-based House. It is not wrong, therefore, for senators to challenge the conclusions of the elected House.

The ideal vision of an independent Senate is a collection of free-thinking and critical individuals from all walks of life, with a deep appreciation for their weight in the legislative process. These lawmakers would recognize their duty to be informed on the issues before them and vote to the best of their ability, mindful of the regional and minority views they are there to represent. In that context, the upper house could serve an admirable and important role in Canadian democracy.

An independent Senate is worth working toward, but the road remains largely unpaved. However, with the right steps forward, the potential for an independent Senate could gradually become visible on the horizon.

Photo: Shutterstock by Gary A Corcoran Arts

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Maryn Marsland
Maryn Marsland is a third-year law student at the Schulich School of Law at Dalhousie University. She spent the summer doing an internship in the office of Senator Kim Pate.
Sarah Thomas
Sarah Thomas is a third-year economics major at McGill University. She spent the summer doing an internship at the office of Senator Kim Pate.

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