Although there is little discussion of it, the Senate is currently at a critical juncture in defining its modern role. The catalyst is Bill C-48, which would ban the transportation of highly polluting crude oil on British Columbia’s environmentally sensitive north coast.
Indeed, despite the bill having been passed in principle several months ago, a committee of 12 senators has recommended that it be killed by a split vote (6 vs. 6). Subsequently, the entire Senate rejected the report.
Many political commentators and representatives of federal parties have since commented. For example, Green Party Leader Elizabeth May, NDP MP Nathan Cullen and Liberal MP Sean Fraser have said that unelected senators have no right to defeat a bill that was passed by 67% of MPs. Only the Conservatives seem to be happy about the situation.
In reality, the fate of Bill C-48 will be decided soon at third reading. The vote will rest largely on how we define the Senate’s role as the Upper Chamber of Parliament.
In 1867, the Fathers of Confederation designed the Senate as an unelected chamber composed of an equal number of property owners appointed for life from each of the three (and later, four) regions of the country.
The Senate was mainly tasked with providing sober second thought on bills before Parliament, ensuring consideration of regional interests in national policies and preventing overreach by the government of the day, with its majority in the House of Commons.
In my opinion, the modern Senate—particularly now that it is mostly made up of senators who are independent from political party whips—has multiple roles: to carefully review bills, including by assessing their impact on the regions from a national standpoint; to conduct inquiries on social issues; to publicly question ministers and officials about the operations of departments and agencies; to listen and give voice to underrepresented groups and those overlooked by political parties; and to promote parliamentary diplomacy in the hope of a better world.
However, the Senate’s role is not to defeat bills that reflect the commitments of the elected government, as long as said bills are consistent with the evidence, make sense and adhere to the Constitution and the Charter of Rights and Freedoms, including First Nations rights. As long as these criteria are met, restraint in the exercise of the right to oppose or defeat legislation is and should be the name of the game for all senators, particularly in committee.
It is worth reminding that senators do not face a binary choice between passing or killing a bill. In fact, our role is to review bills thoroughly and, if there exists a legislative defect, to propose an amendment. Proposing additions or corrections to a bill is one thing. Changing the government’s policy choices or trying to outsmart it on the means to achieve a policy objective is beyond our remit.
I would point out that Bill C-48, which transforms a moratorium that has been in place for more than 40 years into a statutory prohibition, is delivering on a political commitment made by the Liberal Party, the NDP and the Green Party during the last election.
The Conservative Party is now promising to repeal Bill C-48 if it wins the next general election, which is only a few months away.
In other words, the citizens of this country will soon be able to choose between these two conflicting visions, and unelected senators should not usurp this democratic process. In this context, substituting the will of senators for that of 67% of MPs would be hasty, ill-considered and incompatible with the Senate’s role as a chamber of sober second thought.
If by chance my colleagues kill Bill C-48, to paraphrase Jean de La Fontaine’s fable “The Frog Who Would Grow as Big as the Ox,” one might say, “In envy, the Senate huffed and puffed...to grow as huge as the Commons...so well that it exploded.”
Senator Pierre J. Dalphond represents the De Lorimier region of Quebec.
A version of this article appeared in the June 3, 2019, edition of the Hill Times.