Would Poilievre government face hostile Senate?

Opinion

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This article was published 18/05/2024 (487 days ago), so information in it may no longer be current.

A little over a week ago, I spoke at a mock constitutional conference on Senate reform involving students from eight provinces who gathered at Queen’s University in Kingston. It was stimulating to engage with bright, young adults interested in improving one component of Canada’s democratic system.

In preparing for the conference, it occurred to me that public awareness of the role of the Senate in our constitutional order is much lower today than it was a decade ago when an expenses abuse scandal involving multiple senators generated lots of negative media coverage.

At the same time, then-Prime Minister Stephen Harper’s plan for the election of senators at the provincial level, together with term limits, was shot down by the Supreme Court. The court ruled that moving from an appointed to an elected Senate required the agreement of seven provinces representing 50 per cent of the national population. Abolition required unanimous agreement.

Should the Conservatives form government after the next election, which must happen by 2025, the Senate would likely be in the media spotlight again. Two main questions would arise.

First, would Pierre Poilievre, as promised, return to a fully partisan process for filling vacancies in the Senate by eliminating the Independent Advisory Board for Senate Appointments created by Justin Trudeau in 2016? How might Canadians react to a return to “patronage” appointments based mainly on past or anticipated future service to the Conservative party?

Conservatives regularly describe Trudeau’s appointees as “Liberal wolves in Independent sheep’s clothing.” With only 13 Conservatives in the 105 member Senate, the party predicts a Poilievre government would face a hostile majority determined to obstruct its agenda.

In constitutional terms, the Senate is co-equal with the House of Commons and it has an absolute veto, not just a suspensive veto, over bills.This leads to the second question: Would, in fact, highly contentious bills from a Poilievre government be routinely delayed, extensively amended, or even vetoed?

Answering these questions requires some brief history. At the time of the expenses scandal, when the Liberals were in third place in the House of Commons, Trudeau dropped Senators from the Liberal parliamentary caucus and, after he became prime minister in 2015, he created the Advisory Board to gather nominations and to make recommendations for appointments to fill vacancies in the Senate.

To be clear, it is still the prime minister, with the consent of cabinet, who effectively makes the appointments. This reform did not require a constitutional amendment, which means it could be easily reversed by a subsequent prime minister.

Trudeau has named 81 senators, 70 of whom are still serving. The vast majority of those appointees now belong to three parliamentary groups (not party caucuses) which emerged organically: the 43-member Independent Senators Group; the 17-member Canadian Senators Group; and the 14-member Progressive Senate Group. There are 10 nonaligned Senators and three nonaffiliated Senators who represent the government in the Senate. There are currently nine vacancies.

The only remaining party caucus, whose 13 members are subject to party discipline through a whip, is comprised of Conservative Senators. As more Harper-era appointees reach the retirement age of 75, that number is forecast to drop to six by the next election. It could take up to a decade for Poilievre to make enough appointments to achieve a Conservative majority.

The transition, which is ongoing, to a more independent, less partisan Senate has been contentious. Several careful empirical studies demonstrate that the Senate has been more willing than in the past to amend government bills, even when there is pressure from the prime minister’s office to approve certain bills unchanged.

To prove that independence is a hoax, Conservatives point to the tendency for the majority of Senators to side, eventually if not immediately, with the government on controversial bills

On its own initiative, the Senate has sought to update and modernize its operations to take account of its changed composition. Amendments to the Parliament of Canada Act were passed in 2022 providing for the equitable treatment of Senate groups, including consultations on the appointment of agents of Parliament, such as the Information and privacy commissioners.

Recently, there was disagreement over a package of proposed changes to the rules of the Senate. Existing rules presumed the historical pattern of duelling Liberal versus Conservative party caucuses.

The government representative in the Senate, Senator Marc Gold from Quebec, argued that the aim of the rule changes was to ensure fairness in terms procedural opportunities and resources for the three parliamentary groups now represented in the Senate. Due to a persistent filibuster against the rule changes by the Conservatives, closure was used to obtain their adoption on May 9.

This may have been necessary, but ideally changes to rules meant to protect the rights of all groups should be based on a consensus.

Sen. Don Plett from Manitoba, chair of the Conservative caucus, led the filibuster against the rules package, which he argued is meant to entrench the Trudeau appointment process and to give the “phoney” nonpartisan groups the capacity to block bills presented by a future Poilievre government.

Would the “new” Senate, for example, steadfastly oppose a bill which “axed” the carbon tax? What about legislation which used the notwithstanding clause to overcome Charter of Rights and Freedoms protections to deny bail to repeat serious offenders?

No one can predict with certainty the response of the Senate to such measures.

However, as appointed parliamentarians, senators have almost always demonstrated deference and restraint in terms of seeking to amend or block bills which have obtained majority approval in the elected House of Commons. This orientation has become even more part of the institutional culture of the “ new” Senate created by the Trudeau reforms.

In the unlikely event of a prolonged deadlock, as prime minister, Poilievre could use the constitutional provision which allows for the appointment of extra senators, a provision only used once in 1990 by prime minister Brian Mulroney to obtain passage of the contentious GST bill.

Despite the Senate being an improved (though hardly perfect) institution, its image and reputation in the public mind remains poor. Because of limited public awareness of its operations, as prime minister, Poilievre would probably not face much of a backlash by returning to a patronage-based Senate.

Paul G. Thomas is professor emeritus of political studies at the University of Manitoba.