IT’S THE SAME OLD SENATE
Minimal impact for promised new structure
OTTAWA • Whenever his time in office ends, Prime Minister Justin Trudeau’s most enduring legacy could be the changes to Canada’s Senate, where he has created a Red Chamber with more than just two parties and more senators willing to change and vote against government legislation.
Of the 90 current senators, Trudeau appointed 57, more than half. None of them were appointed as Liberals; Trudeau, as a new party leader, in 2014 threw all Liberal senators out of his caucus. One, Marc Gold, serves as the Liberal government’s representative in the Senate, answering for it in question period and guiding its legislation through.
The other 56 Trudeau appointees have joined the ranks of one of three groups that emerged in the new Senate. Most have joined the Independent Senators Group (ISG). The ISG is accused by its critics of being mere Liberals in disguise, reliably supporting Trudeau’s government.
A National Post analysis of voting records show that Trudeau’s appointees have voted against the government slightly more often than the former Senate Liberals did. The impact of that, however, is still limited, as independent senators appointed by Trudeau said that they still don’t believe it is their place to routinely defeat government legislation.
In dismantling the Liberal caucus eight years ago, amid a series of Senate scandals, Trudeau justified the move by arguing the Senate was “broken.” The traditional structure, he said, forced senators “to consider not just what’s best for their country, or their regions, but what’s best for their party.” By naming senators as independents, he would make them non-partisan. Liberal senators eventually responded by forming new groups under different
names.
IT’S A REALLY, REALLY EFFECTIVE PLACE AT THE MOMENT. AND THE EVIDENCE OF THAT, OBVIOUSLY, IS IN THE NUMBER OF AMENDMENTS, THE VOTING PATTERNS AND SO ON. — SENATOR SCOTT TANNAS
To conduct its analysis of the actual independence of Trudeau-appointed senators, National Post considered voting records from two distinct time periods.
The first is the time frame from just after Trudeau became prime minister in 2015 and had just started to appoint senators. It was months before he appointed any senators, and it wasn’t until well into 2016 that any came together into the ISG.
The second time frame of the Post’s analysis was the last parliamentary session, from the 2021 election until last June, by which time the majority of senators in the chamber were Trudeau appointees.
The Senate holds recorded votes much less often than the House, with many issues moved forward by simple voice votes, leaving a smaller sample of recorded votes to look at.
But across the same number of votes in the two different time periods, one or more ISG senators voted against government bills three times, sometimes with multiple senators voting against a government bill.
Five Trudeau-appointed ISG senators voted against commencing a pre-study of C-11, the government’s online streaming bill. Pre-studies are usually passed when the government is seeking to move legislation through the Red Chamber more quickly. That bill is now being debated in the Senate and is expected to move slowly.
One member of the ISG voted with the Senate’s Conservative caucus on an amendment that would have derailed a bill to make it illegal to protest outside hospitals.
Three Trudeau-appointed ISG senators voted against a bill to address the Supreme Court’s ruling that would allow extreme intoxication as a defence in criminal cases. That bill was rushed through the House with all-party consent, but a trio of ISG senators proved themselves more willing to throw up a roadblock.
When Trudeau broke up the Liberal senate caucus in 2014, the former members continued to call themselves “Senate Liberals” for a brief period, despite the fact they didn’t have a formal connection with the party any longer and didn’t caucus with MPS, as Conservative senators still do.
In 2015, after Trudeau became prime minister, but before he had made many appointments, Senate Liberals gave unanimous support to almost all of the new prime minister’s bills.
Only once did a few of the officially unaffiliated but so-called Senate Liberals vote against a Trudeau government bill, with senators Percy Downe, Paul Massicotte and Terry Mercer voting against a government bill addressing how unions are certified.
When he was elected into government, Trudeau brought in a new advisory board to review and recommend senate appointees. The board has three permanent members and two provincial ones that rotate based on which province’s seats are vacant. The prime minister retains the final say on the appointment selection.
Before Trudeau’s changes there were two caucuses in the chamber, the Conservatives and the Liberals. There are now three non-partisan groups: the ISG, the Progressive Senators Group and the Canadian Senators Group. There is also still the Conservative caucus, although several senators appointed by former Conservative prime minister Stephen Harper have left to join other groups.
The three non-partisan groups have no connection to MPS in the House of Commons and now include senators appointed by Conservative and Liberal prime ministers, with a wide range of political and entirely non-political backgrounds.
Of Trudeau’s 57 appointees, three are former Liberal candidates, but the majority are academics, former bureaucrats and businesspeople. The youngest person he has appointed to the Senate, Senator Michèle Audette, is currently 51, giving her another 24 potential years in the chamber before reaching the mandatory retirement age of 75.
Senators in the Conservative caucus are still part of the Conservative party, meeting with their MP colleagues once a week and taking part in other partisan activities.
The ISG is the biggest group with 39 Senators, followed by the Conservatives who are now down to 15 members. The Progressives have 14 members and the Canadian Senators Group has 11 senators. There are also 11 non-affiliated senators and 15 vacant seats.
Unlike other changes made by Trudeau, undoing these Senate changes will be much more difficult for any future prime minister to unravel.
As several Conservative leaders have now promised, the Liberals’ carbon tax can be scrapped through normal legislative procedures. And everything from legally permissive euthanasia to national child care could be undone if a future prime minister has the political support to do so.
But Trudeau’s Senate reforms will not be as easy.
Removing someone from the Senate is nearly impossible, as Canadians have seen through the both literal and figurative trials of former senators such as Mike Duffy and Lynn Beyak. (Duffy was suspended while facing charges of spending irregularities, but was acquitted and remained a senator until his retirement; Beyak was suspended for airing controversial opinions about residential schools, but stayed a senator until her retirement.)
There are 15 vacancies, which Trudeau can fill at any time. There are also as many as 22 senators who will hit the chamber’s mandatory retirement age before the fall of 2025, the latest Canadians could next go to the polls. If Trudeau fills all those vacancies, more than 90 of the 105 senators in the chamber could be his appointees.
Alberta Senator Paula Simons has emerged as one of the more independent-minded additions to the chamber. A former Postmedia columnist appointed in 2018, Simons voted against the extreme intoxication bill and the early look at the government’s online streaming bill.
She said the Senate today is acting as it should, as a body that questions the government and improves legislation even if it isn’t popular.
“We have the responsibility to take the long view because we have the power to take the long view,” Simons said.
Even if they’re not voting against Liberal legislation, senators have made significant changes to the government’s bills. Bill C-69, a controversial bill around environmental impact assessments, had nearly 200 amendments added to it in the Senate, about half of which the government accepted. The Senate also tweaked the government’s medically assisted dying legislation and marijuana legalization.
Simons said voting down a bill has to be a measure of last resort, although she has voted against final reading on several government bills.
“If we oppose a bill, we have to have a really sound reason for doing so, that isn’t just ‘I could write a better one.’ ”
Senator Kim Pate, another Trudeau appointee who has also voted against government legislation, agrees the Senate’s role is about scrutiny not necessarily defeat of legislation, because MPS have that direct link to citizens that senators don’t.
“For many of us, our role is not to interfere with an agenda that the government was elected upon,” she said.
But she stressed that doesn’t mean the Senate should be a rubber stamp.
“Many of us feel it’s vitally important that we fulfil our obligations in terms of our duty as public servants to Canadians,” Pate said.
When Pate believed the government’s bill to end solitary confinement in prisons was too weak and unlikely to actually stop the practice, she and 22 of her ISG colleagues voted against it, and she wrote a new bill that would go further to curb its use.
Conservative Senate leader Don Plett dismissed the ISG’S independence, pointing out that Trudeau appointees never threaten to defeat any government legislation.
“They are making sure that they have the numbers to pass legislation, and then they are allowing certain senators — if they are passionate about an issue in their province or whatever the case may be — they are allowing them to appear like they are voting against the government,” said Plett.
Plett said the arrangement is orchestrated to give the appearance of dissent without actually jeopardizing the government’s legislation. He said even many of the ISG’S amendments to legislation are fully supported by the government.
“If you check real closely, every piece of government legislation that has been amended in the last few years has been amended because the government saw flaws in their (own) legislation.”
When Trudeau’s government was first elected, Conservatives considerably outnumbered other groups in the Senate. But Plett and other Conservative MPS mostly abstained from early Liberal legislation rather than vote any of it down.
Plett said ultimately he also doesn’t believe the Senate should be standing in the way of an elected government’s mandate.
“I don’t think that’s the Senate’s role. I think it’s a senator’s role to give it sober second thought and to try to improve legislation that is flawed when it comes to us.”
Votes are not the only thing that has changed in the Senate. Senator Scott Tannas was a founding member and now leads the Canadian Senators Group, but he joined as a Conservative after being appointed by Harper and winning a vote as a Conservative Senate nominee in Alberta. He is the only current senator remaining who was selected after winning one of Alberta’s Senate elections.
The 10 senators currently in the Canadian Senators Group are mostly former Harper appointees, but there are also members appointed by Justin Trudeau and former prime minister Jean Chrétien.
The Progressive Senators Group is another offshoot, in this case made up mostly of Trudeau’s appointees, but also including senators appointed by Harper, Martin and Chrétien.
Tannas said his group is focused on the process, ensuring senators get the appropriate amount of time to review legislation and thoroughly research bills. He also said he believes the advisory-board experiment in selecting new senators is working.
“It’s a really, really effective place at the moment,” said Tannas. “And the evidence of that, obviously, is in the number of amendments, the voting patterns and so on.”
He disagrees with Plett that the new groups are only symbolically independent of government, and said prior to the changes in the Senate, real resistance to government occurred only rarely.
“It was a very, very small number (of cases). And in most cases, if not all in my memory, they were amendments that the government had asked for.”
Before creating his new Canadian Senators Group caucus, Tannas said taking a partisan approach all the time felt limiting and wasn’t in line with what he wanted to do as a senator.
“That’s the part I hated. I detest the game that we’ve somehow got to be some off-broadway version of the House of Commons,” he said.
This spring’s budget enshrined some of the changes that have happened in the Senate into law, giving more funding and formal recognition to the new groups, much like opposition parties get in the House of Commons. Previously, the rules governing the Senate didn’t allow for anything other than a government and an opposition.
Tannas said he believes the more independent-minded Senate will be a permanent fixture, or at least incredibly difficult to change. He said the pandemic involved a lot of rushed legislation, but as Parliament returns to normal he said senators will want to take more time studying every bill.
Simons acknowledges many Canadians still see the Senate as undemocratic and even a waste of money, but she hopes senators will change that impression with their work over time.
“The Senate becomes a kind of a lightning rod so that people who don’t know much about it are just convinced that they don’t like it,” she said. “This Senate reform project will not work unless people have their confidence in the value of the Senate restored. And the only way that the Senate has value is if it puts each and every piece of legislation up to thorough and proper scrutiny.”