Part of the delay arises from the fact that the Senate is still examining the bill and has proposed several amendments, some quite substantial. Predictably, there has been criticism of the prospect of appointed Senators thwarting the will of the elected House of Commons. But what is distinctive, indeed unprecedented, about the present situation is that the Senate’s actions do not seem to be partisan in nature. That was manifestly not the case with earlier examples of Senate opposition to bills passed by the House of Commons, such as those relating to the Canada – U.S. Free Trade Agreement, the imposition of a Goods and Services Tax (GST), or gun control. In those earlier instances, the majority of Senators did not belong to the governing party of the day and were, at least to some extent, reflecting the position of the Official Opposition in the House of Commons.
Decreased Partisanship in Senate
The less partisan response to Bill C-14 is at least partly because the Senate itself is now not nearly as partisan. It consists of three primary groups – Conservative Senators, Senators once classified as Liberal but released to sit as Independents by then Liberal leader Justin Trudeau in January 2014, and a new group of seven Independent Senators appointed by Prime Minister Trudeau in April of this year. All indications are that the Senators have worked across traditional party lines in their efforts to decide how best to improve Bill C-14, and the voting patterns reflect this refreshing approach. The newly constituted Senate of today appears (at least for the moment) to be resuming its important traditional role of providing “sober second thought” with respect to legislation from the Commons.
How Far Should Senate Go?
While a revival of this Senate role is welcome and can potentially improve the legislative process, it is legitimate to question how far the Senate should go in refusing to pass legislation as approved by the Commons. Making amendments once is well within the rights of the Senate, but if a bill returns to the House of Commons and is passed again without the Senate amendments, how should the Senate respond? There is some limited historical precedent that suggests the Senate will not continue to oppose a change that enjoys wide public support. When the Conservatives were re-elected in 1988 for example, running on a free trade platform, the Senate dropped its previous opposition to government free trade initiatives. But what if there isn’t any clear measure of the public’s position on a matter or that position is divided – as is almost certainly the case with how broadly or narrowly to define the rules governing physician-assisted dying?
A reinvigorated, more independent Senate has an important role to play in our government system and should be applauded, not criticized. At the same time, the Senators would be wise to remember the public mandate given to the government of the day. Under normal circumstances, they should accept the will of the Commons if it is asserted repeatedly. Not rejecting legislation passed by the Commons more than twice might be appropriate as a general “rule of thumb” and it accords with the limited suspensive veto that can be exercised by the British House of Lords.