More assertive Independent senators come close to defeating government bills

OTTAWA — In the final hours of Justin Trudeau’s four-year experiment with a less-partisan Senate, Independent senators came within a whisker of biting the hand that feeds them.

On Bill C-48, which follows through on the prime minister’s 2015 election commitment to ban oil tankers from the northern coast of British Columbia, senators voted 49 to 46 to accept the bill Thursday, even though Trudeau’s government had rejected one of two Senate amendments to the controversial legislation.

Those voting against included all the Conservative senators plus more than a dozen Independent senators.

Almost two dozen Independents flexed their muscles again a few hours later on Bill C-83, aimed at creating a more humane way to segregate dangerous prison inmates. The bill passed easily in the end, by a vote of 56 to 26, but only because most Conservative senators uncharacteristically supported the Liberal government’s rejection of a Senate amendment to require judicial review when an inmate is placed in a “structured intervention unit” — the replacement for solitary confinement.

Had senators voted to insist on the Senate amendments, the two bills would have theoretically gone back to the House of Commons where the government could have sent messages back to the Senate once again rejecting the upper house’s amendments — embarking on a game of potentially endless legislative ping pong between the two houses of Parliament.

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But with the House of Commons adjourned for the summer and only a slim chance of it being recalled before the fall election, such a move would have effectively killed both bills.

It’s the closest the Senate has come to defying the will of the elected chamber since Trudeau instituted an arm’s-length advisory body to recommend non-partisan appointees to the upper house.

Had the bills gone down, Independent senators would have handed ammunition to critics of Trudeau’s Senate reforms, some of whom have been predicting from the outset that it will inevitably lead to a constitutional crisis with an empowered, unelected chamber thumbing its nose at the elected government.

And they’d have given a boost to Conservative Leader Andrew Scheer, who has promised he’ll return to the traditional way of appointing senators, naming only Tory partisans to the upper house should he become prime minister.

Sen. Yuen Pau Woo, head of the Independent Senators Group, a loose affiliation of most of the non-partisan senators that helps them operate under old Senate rules, said there’s “no question” senators are becoming more assertive as they settle into their roles. But he insisted that’s “tempered” by the recognition that they are not elected.

“As the senators become more experienced and more informed of the role of the Senate and the passion on certain policy issues, that (assertiveness) is inevitable,” agreed Sen. Peter Harder, the government’s representative in the Senate.

Still, he thinks there is simultaneously “a broader recognition that we are a chamber of revision but not a chamber of defeat” — a principle he believes Conservative senators also accept, as demonstrated in their support for C-83.

“That too is an expression of independence,” Harder suggested.

Independent Sen. Andre Pratte, who voted against accepting C-83 without the judicial-review amendment, saw the Conservatives’ move to save the bill as a sign of respect for parliamentary institutions but also of Conservative self-interest.

“They believe that they might be in government soon in a few months if they win the election and they felt that if we defeated the motion it would set some kind of precedent that they might have to live with once they’re in government,” Pratte said.

For his part, Conservative Senate whip Don Plett said he and his colleagues weren’t comfortable voting for a Liberal government bill but they did so because it was better than the amended version championed by many of the Independents. Their move, he argued, is proof that Conservative senators are not the obstructionists they’ve been made out to be.

Plett scoffed at the notion that Trudeau’s Senate — “this ridiculous sham of pretending to be independent” — is any different from upper houses in the past. The Independents are all still appointed by Trudeau on the recommendation of an advisory body appointed by Trudeau and they’re all Liberals no matter what they call themselves, he asserted.

“As I’ve said many times on record, when it walks like a duck and talks like a duck, it’s probably a duck,” said Plett, mocking what he called the Independents’ tendency to “amend something and stand there on their soap box and thump their chest, then when the government says no, they capitulate and say, ‘OK.’ “

If Scheer becomes prime minister, Plett added, he’ll “call a duck a duck … Andrew Scheer will appoint Conservative senators and he will admit that he’s appointing Conservative senators. No difference. Only in what they call themselves.”

But Pratte is an example of the evolution in the way Independent senators view their role. During debate on C-83, he reminded senators that three years ago he ultimately deferred to the elected chamber on a bill legalizing medical assistance in dying, even though the government had rejected amendments he believed were necessary to adhere to the Charter of Rights and Freedoms.

That was a mistake, he said Thursday. He should have stood up for grievously ill Canadians whose right to an assisted death was denied by the government’s restrictive approach to the issue. It was a mistake he wasn’t going to repeat on C-83, when the rights of prison inmates, “a very small, very vulnerable minority,” were at stake.

“That’s our mandate, to protect minority rights,” Pratte said later in an interview.  

“The Senate exists, right? I know many people would like to get rid of it but it exists so we might as well use it for a good purpose.”

Overall, Harder said the more independent Senate is working “very well,” transforming the upper house into “a different institution” where senators are “beginning different practices” than the rote voting along partisan lines that used to be the norm.

He pointed to the fact that the Senate passed 88 government bills, 33 of them with Senate amendments accepted by the government and all of it done without once having to impose time allocation to limit debate. Moreover, he noted that with the addition of 49 Independents appointed by Trudeau, the chamber is now very close to gender parity, with much more diversity in the backgrounds of senators, including 12 who are Indigenous.

Joan Bryden, The Canadian Press