Reason, Common Sense and Good Faith: The Unlikelihood of a Senate Block to Reforming C-51

There have been rumours that the Conservative majority in the Senate could block Prime Minister Trudeau’s plan reform the unpopular Anti-Terrorism Act of 2015 (“the Act”), known to most as Bill C-51. In an October 26, 2015 article by the Ottawa Citizen’s Ian MacLeod, the Conservative majority in Canada’s Upper House mentioned their plans to act with reason, common sense, and good faith to prevent any changes to the act that would make the majority of Canadians “uncomfortable.”

The subtext being that our Senate, consisting of 47 Conservatives, 29 (technically former) Liberals and 7 Independents, would be more than happy to save Trudeau from having to honour his election promise to reform the Act, an act that is perceived by many as prioritizing Islamo and Xenophobia over Charter rights in the name of national security.

Trudeau’s proposed amendments include the following:

  • The creation of an all-party joint committee of the House of Commons and Senate responsible for monitoring all activities of any government organisations such as the Canadian Security Intelligence Service (CSIS) and the RCMP, responsible for enforcing Canada’s anti-terrorism laws.
  • New legislation forbidding CSIS from violating the Canadian Charter of Rights and Freedoms. Under the Act and articles 12.1 (3) and 21.1 of the Canadian Security Intelligence Service Act, CSIS can violate the Charter to take measures to reduce a threat to national security if they get a warrant from a federal judge.
  • Clearer definitions of things like “terrorist propaganda,” currently defined under the Act as “any writing, sign, visible representation or audio recording that advocates or promotes the commission of terrorism offences in general… or counsels the commission of a terrorism offence.”
  • Ensuring that lawful protests and advocacy aren’t dubbed terrorist threats under national security law.
  • Requiring a mandatory review of the Act every three years.

These reforms, for the most part, seem to be what the country has been calling for: a reasonable approach to national security. The question is: can the Senate block a bill that would reform the Act and start the implementation of these promised changes?

In theory, yes, the Senate can. In practice, it’s not bloody likely. In order to fully understand this, we need to look at the Senate itself.

The Senate, also known as the Upper House, consists of members appointed by the Governor General of Canada on the advice of the Prime Minister. It was created as a house of “sober second thought,” protecting our country from the tyranny of the masses as represented by the elected members of the House of Commons.

The Canadian Senate chambre (image: Johnath / flickr, Creative Commons)
The Canadian Senate chambre (image: Johnath / flickr, Creative Commons)

In order for a bill to pass, it must go through the House of Commons (the House). After introduction, multiple readings, discussion, and debate, the House votes on the bill. If the bill passes, it goes to the Senate, which in turn does its share of debating, discussing, and voting. If the Senate passes the bill, it goes to the Governor General, who puts his final stamp, known as the Royal Assent on it, thus turning the bill into law.

In the beginning, no one had any problems with the Senate determining the life or death of legislation. As people became more educated and realised the magnitude of their democratic rights, the Senate’s popularity waned and with it, the legitimacy of its right to kill a bill.

Canadians are very aware that they have no say in who ends up in the Senate beyond voting for the Prime Minister who appoints Senators through the Governor General. As a result, the Senate has in turn evolved so that most laws are now given the Senate’s consent whether a majority of Senators agree with the law or not.

The Senate is HUGELY unpopular, especially in light of last March’s auditors’ report, the results of which displayed gross expenditures so scandalous HBO’s John Oliver did a three and a half minute segment on it on Last Week Tonight. The NDP has been pushing for the Senate’s abolition for years, while others have been demanding that if it’s not abolished, it should at least become an elected body like the House.

Given the Senate’s unpopularity, it is highly unlikely they will block attempts to reform C-51. The last time they blocked controversial legislation was when they killed Brian Mulroney’s attempt to re-criminalize abortion in 1990.

The Senate’s very existence is hanging on by a thread. It’s more likely that our Senators’ plans to act with reason, common sense, and good faith in the face of the proposed amendments to the Act are really just words of wisdom for our new Prime Minister.

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