ANALYSIS: If Poilievre Becomes PM, Would the Senate Be an Obstacle?

The Senate of Canada building and Senate Chamber in Ottawa in a file photo. The Canadian Press/Sean Kilpatrick

More than two-thirds of Canada’s current senators have been appointed by the Liberal government under Prime Minister Pierre Trudeau. They are technically independent, but how ideologically neutral the Senate may be is a matter of debate.

If a Conservative government is elected next year, it may be impeded in various ways by an antagonistic Senate, says Ray Pennings, co-founder and executive vice president of the think tank Cardus.

And senators have virtually unchecked power for the first time in Canadian history, he told The Epoch Times. Party discipline and other restraints that were part of the old, partisan system disappeared under Senate changes made by Mr. Trudeau.

But others say a Conservative government could fare better under the new system.

If the Senate were still partisan, the Liberal majority would be sure to block Conservative legislation, said Don Desserud, a political science professor at the University of Prince Edward Island, in an interview.

At least without any formal political ties, there’s a chance these independent senators may support Tory bills, he added.

Conservative Leader Pierre Poilievre would clash with the Senate, which is largely “liberal minded,” Paul Thomas, political science professor emeritus at the University of Manitoba, said in an email. But he said it’s unlikely to go as far as the “constitutional crisis” Mr. Pennings predicts, with the Senate blocking government legislation.

The Senate has the power to amend and even veto bills passed by the House of Commons. However, it’s taboo for senators to use their veto power, as they are unelected whereas MPs in the House represent the will of voters.

But Canada could be heading into uncharted territory, and it’s hard to predict how the “new” Senate could react if Mr. Poilievre is elected prime minister next year.

Mr. Trudeau changed the nature of the Senate appointment process soon after he was elected in 2015. Before that, the prime minister would appoint senators from within the governing party’s membership. Now, an arm’s-length advisory board (partly appointed by the federal government, partly by the provinces) provides the prime minister with a short list of non-partisan candidates to choose from.

‘No One to Serve But Their Own Conscience’

Under the old system, “there was an inherent partisan check and balance because the Senate was part of a larger framework,” Mr. Pennings said. “Now, we have 105 individuals that are there with no one to serve but their own conscience.”

That sounds like a good thing, he said. “Conscience is a good thing.” But being “untethered from public opinion” could embolden the senators to block legislation that has popular support, he said.

He gave the example of Mr. Poilievre’s promise to “axe” the carbon tax. If Mr. Poilievre is elected, and that is part of his platform, it suggests voters support it. Yet a large portion of senators may feel morally obliged to uphold the tax due to their personal beliefs on climate change policies.

“We could have a Senate that would just refuse to pass legislation of a duly elected government,” Mr. Pennings said.

The Senate could also amend legislation and delay a vote on it, sometimes to the point of killing it—actions the Senate has taken more often than an outright veto.

Conservatives have criticized Canada’s Senate for heavily amending legislation passed by the House, such as Tory Bill C-234 that would provide additional carbon tax breaks to farmers. The Senate amendments decreased the amount of savings to farmers by $80 million, the Parliamentary Budget Officer said in February.

On the other hand, senators have also shown an increasing willingness to amend government legislation, according to a study by Mr. Thomas published in 2019.

“Whether intended or not, the Trudeau changes have meant that the Senate has become a curb on prime ministerial power and the use of majority power in the House of Commons,” Mr. Thomas wrote.

Sen. David Adams Richards was appointed under the Trudeau government but was one of the strongest voices in Senate against the Liberals’ Bill C-11 related to government regulation of online streaming and social media.

Mr. Thomas told The Epoch Times that he has interviewed multiple senators and that what he heard indicates that they take the “independent” label seriously. “Many of the ‘new’ Senators are ‘liberal minded’ but only a few are zealous ‘Liberals’ with a recent, visible partisan past,” he said.

“Under a Poilievre government, there may be occasional clashes with the Senate, but a prolonged constitutional standoff is unlikely,” he said. “The Senate is emerging as a house of review, not a party-dominated body ... [that] mirrors the partisan battles fought in the Commons.”

Mr. Trudeau’s decision to make senators independent has largely removed partisan feeling from the Upper House, according to Sen. Scott Tannas, a Steven Harper appointee.

“The Senate that I walked into in 2013, with two large groups facing each other across the aisle and lots and lots of animosity, lots of partisan politics—to me, it was an off-Broadway version of the House of Commons,” Sen. Tannas told The Epoch Times in 2021.

“Now it is a completely different place, where the government leader arrives with the bill from the House of Commons and has no clue whether or not it will pass. When I arrived, that was not the case.”

He said, however, that a Conservative government could still have a hard time with this new Senate.

“If a Conservative government were elected, I think that would be a dynamic that would be interesting, because notwithstanding the independent selection process, the Trudeau process has yielded people that are centre and centre-left, primarily. And so a lot of those folks might find the Conservative agenda to be more than they can take.”

Mr. Desserud said the Senate is likely to respect the decisions of the House, and amendments are unlikely to undermine the intent of Tory bills. But, he said, trying to keep partisanship out of any kind of political body is difficult.

“It just finds other ways of emerging.”

What the ‘New’ Senate Looks Like, How It Emerged

Prior to 2015, Canada’s senators were appointed by the governing party from among its membership. Senators serve until the age of 75, so the balance of partisanship in the Senate was a matter of how many vacancies a governing party could fill while in power.

Its role has been viewed as providing a “sober second thought” to legislation and protecting regional and minority interests. The Senate got a bad rap, in part because senators let party loyalty take precedence over these responsibilities, said Mr. Thomas.

Then there was also the expense scandal that began in 2012, where some senators claimed expenses that were questionable. Canadians questioned anew the usefulness of the Senate and debates raged over whether it should be reformed or abolished altogether. Constitutional changes to reform the Senate are not easy, however. Depending on the nature of the change, it may require the consent of both houses and most provinces.

Toward the end of his term, Mr. Harper refused to make new appointments to what he called an “unelected, unaccountable” Senate. He sought to pressure provinces to agree to reforms. Mr. Trudeau was elected in 2015, however, and filled a lot of the empty seats—though he declared that all senators would be independent. In 2014, a year earlier, when he was Liberal Party leader, he had already expelled all Liberal senators from his caucus.

Without a partisan division, senators began sorting themselves into groups. The non-partisan part of Senate is now divided into three groups—the Independent Senators Group, the Progressive Senate Group, and the Canadian Senators Group—with some senators remaining unaffiliated and 13 senators remaining partisan Conservatives. The Independent Senators Group is the largest, and many Trudeau-appointees have joined it.

The Senate adopted rule changes in May that further formalize the existence of these groups and their power in the Senate. Conservatives criticized the changes, saying the government is trying to weaken their position in the Senate and to make it harder for a Tory government to undo Mr. Trudeau’s changes to the Senate.

Senate’s Power

Canada’s Senate has an unusual amount of power in the Commonwealth. Senators can veto bills passed by the House, have few constraints on their power, and have long terms. By contrast, New Zealand abolished its second house, Australia’s has a six-year term limit, and the British House of Lords cannot block legislation.

The Canadian Senate is modelled after the House of Lords, and Mr. Pennings said the House of Lords reached a “constitutional crisis” in 1911 similar to the one he sees Canada potentially facing.

The British Liberal Party that was elected had campaigned on a budget broadly endorsed by the voters. The House of Lords opposed the budget, however, and a showdown ensued.

Although the House of Lords eventually backed down, the Parliament Act 1911 was passed to limit its powers. Under that act, the House of Lords could no longer veto legislation and was required to quickly pass any legislation specifically in the government’s election platform.

Throughout history, Canada’s Senate has occasionally outright opposed legislation passed by the House—perhaps most dramatically when it blocked then-Prime Minister Brian Mulroney’s goods and services tax (GST) in 1990.

“The showdown over the GST bill forced Mulroney to use for the first and only time ever in Canadian history the constitutional provision allowing for the appointment of extra senators as the way to break the deadlock,” Mr. Thomas said.

Mr. Mulroney gained permission to appoint eight new senators at the time. That wouldn’t be enough to help Mr. Poilievre if he becomes prime minister and needs to break a Senate deadlock in the future.

It would take a Poilievre government about a decade to make enough appointments in the Senate to even things out for the Conservatives, Mr. Pennings estimated.

“A decade from now, we could have a change of government in the other direction and have the very same problem,” he said.

Lee Harding contributed to this report.