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MAKING CANADA’S LAWS
"Must legislation be approved by the
Senate? Can the Senate propose legislation?"
- Taking the legislative initiative
"Must legislation be approved by the Senate? Can the Senate propose legislation?"
Every system needs checks and balances, and the legislative system is no exception. One house may have passed legislation too quickly, or certain concerned groups may feel they did not get a chance to be heard. That’s why Canada’s Constitution states that both the Senate and the House of Commons must approve bills separately in order for them to become law.
The law-making process starts with a bill - a proposal to create a new law, or change an existing one. Most of the bills considered by Parliament are public bills, meaning they concern matters of public policy such as taxes and spending, health and other social programs, defence and the environment.
A bill can be introduced in the House of Commons (C-bills) or the Senate (S-bills), but most public bills get their start in the Commons. A bill goes through certain formal stages in each house. These stages include a series of three "readings" during which parliamentarians debate the bill. Prior to third and final reading, each house also sends the bill to a committee where members examine the fine points of the legislation. Committee members listen to witnesses give their opinions on the bill, and then subject it to clause-by-clause study based on the testimony.
Either house can do four things with a bill: pass it; amend it; delay it; or defeat it. Sometimes, one house refuses changes or amendments made by the other, but they usually both agree eventually.
All laws of Canada are formally "enacted" by the Sovereign, "by and with the advice and consent" of the Senate and House of Commons. Once both houses have approved a bill, it is presented for royal assent and becomes law.
"How does a bill become law?"
1. Passage through first house (sometimes the Senate, usually the House of Commons)
2. Passage through the second house (usually the Senate, sometimes the House of Commons)
3. Royal assent (the bill is made law on the advice and with the consent of both Houses)
Passage through a house:
• first reading (the bill proposing a law is received and circulated)
• second reading (the principle of the bill is debated: is the bill good policy?)
• committee stage step one: members of the public appear as witnesses to comment
step two: committee members study the bill in detail, clause-by-clause
step three: the committee adopts a report, with or without amendments
• report stage (the committee report is considered by the whole house)
• third reading (final approval of the bill)
• the bill is either sent to the other house or is set aside for royal assent
Taking the legislative initiative
When senators see a need for a law, they can respond individually by introducing bills of their own. The bill may or may not make it through all the stages and become law. Even if it does not, a bill can still give visibility to an issue and so encourage debate and action. Here is an example of a Senate bill that did become law:
The 1995 Alternative Fuels Act was initiated in the Senate as an environmental measure. Because Parliament agreed to enact it, the Government of Canada will progressively convert three-quarters of its vehicles from gasoline to alternative fuels before the year 2004.
The Government can introduce its bills in the Senate and will take advantage of this option when it can politically. Doing so takes pressure off the House of Commons’ timetable. A bill that is complex and technical rather than partisan is a perfect candidate for initial review by the Senate. Bills to implement income tax treaties are a good example. The Senate can also pre-study bills that have been introduced in the House of Commons but have not yet reached the Senate, when it considers this to be a useful initiative.
Private bills are introduced on the petition of a citizen and address the needs of a single person, company or institution, rather than applying to the general public, and are always initiated in the Senate. In the nineteenth century, private bills were popular to incorporate and regulate the railroad companies and religious organizations that opened the West. For the greater part of this century, divorces in certain provinces were granted by private bill introduced in the Senate. More recent private bills have authorized marriages otherwise prohibited by law, revived companies, allowed companies to change jurisdiction, and incorporated and regulated charitable and other non-profit organizations. Private bills are valuable because they can point to weaknesses in the general law.
The only bills that cannot be initiated in the Senate are money bills. Money bills collect or disburse public funds. They must always be proposed by the Government and considered first in the House of Commons. Only then can a money bill be submitted to the Senate for its consideration. The Senate can pass or defeat a money bill and can also amend it, but only to reduce taxes or expenditures.
"A primary purpose of the creation of the Senate, as a part of the federal legislative process, was, therefore, to afford protection to the various sectional interests in Canada in relation to the enactment of federal legislation."
-The Supreme Court of Canada in Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, at p. 67
The Senate plays a key role in amending bills passed by the House of Commons. Senators have the expertise to put a bill under the microscope and examine it in detail, and the Senate timetable is flexible enough to allow longer periods of study. The end product is a more effective and long-lasting piece of legislation.
In 1994, the House of Commons passed Bill C-42 in one day, amending over 100 aspects of the Criminal Code. Senators were concerned about provisions allowing publication bans. The Standing Senate Committee on Legal and Constitutional Affairs held five hearings on the bill, giving publishers and criminal lawyers a chance to voice their concerns. While the Committee was reviewing the bill, the Supreme Court of Canada struck down a ban preventing the CBC from broadcasting The Boys of St. Vincent. The Court was protecting the right to freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms. The Senate Committee struck out the offending clauses, the House of Commons agreed, and the bill became law.
Even when the Commons refuses a Senate amendment, the amending process draws attention to the contentious issue. Those aspects of the bill obviously deserve - and usually get - closer scrutiny by the Government, the media or both.
Canada’s Constitution gives either house of Parliament the power to defeat proposed legislation sent to it by the other house. This is called the veto power. While the Senate does not oppose the will of the Commons very often, senators have rejected bills. Senators have considered this possibility on occasions when they felt the Government did not have an electoral mandate for a measure opposed by the public, a bill contained measures that were misinformed, misguided or otherwise not in the public interest or a bill was unconstitutional.
The Senate can defeat Government bills without the dramatic political fallout that would occur if the House of Commons did the same thing. If the House of Commons defeats a major piece of legislation, the Government usually resigns and an election is called. If a bill is defeated in the Senate, the Government can go back to the drawing board and submit a new bill.
In 1993, a tie vote in the Senate defeated Bill C-93, a proposal to streamline federal agencies. Senators were concerned about a section to merge the Social Sciences and Humanities Research Council (SSHRC) with the Canada Council and the cultural programs of the Department of External Affairs. The Government had not consulted any of the organizations concerned, and committee investigations showed that the savings from the merger would not be significant. Neither was it likely to lead to greater efficiency: the agencies had different missions and clients - the Canada Council dealing with arts and cultural groups and the SSHRC with social sciences researchers. The Government would not accept amendments, and so the Senate defeated the bill.
In late 1993, the new Government, after receiving a commissioned study of the issue, cancelled agreements with a private party to redevelop Pearson Airport that the previous Government had negotiated. Some senators argued that the bill presented to Parliament to implement this cancellation arbitrarily removed fundamental, private rights of the developers and was therefore unconstitutional. In 1996, once again on a tie vote, the Senate defeated a bill that had been passed by the House of Commons.
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"In creating the Senate in the manner provided in the Act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons. This was accomplished by providing for the appointment of members of the Senate with tenure for life."
-The Supreme Court of Canada in Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, at p. 77
The Senate can also delay a bill, or decide not to act on it. Without being formally defeated, the bill dies at the end of the session.
In 1985, the Senate delayed a $19.3 billion borrowing bill until the Government showed how it planned to spend the funds. However, it passed the bill after the House of Commons approved the Government’s spending estimates.
In certain circumstances, Senate action or inaction can persuade a Government that it needs to go to the people for a new mandate.
In 1988, Canadians got to vote on the free trade agreement with the United States because the Senate delayed Bill C-130, to implement the agreement. The Government called an election on the issue. As soon as it was re-elected, the Government submitted a similar bill that Parliament passed expeditiously.
Parliament can make constitutional amendments on its own only if they operate within the federal sphere of power. The Senate has a veto power over these amendments, just as it has over all bills proposed to Parliament.
However, some kinds of constitutional amendments affect both federal and provincial powers. Because the legislatures of affected provinces must agree to these, both the Senate and the provinces speak for the regions on such amendments. When the Senate and the provinces do not agree on an amendment, the Constitution will favour the provinces. The amendment may be made without Senate approval if the provinces authorize it and if the House of Commons re-affirms its support for the amendment after the Senate concerns become apparent. However, the Commons must wait for six months from when it first approved the amendment before approving it a second time. This Senate power to require the Commons and the provinces to reflect for six months is called its suspensive veto.
"... it is our opinion that while [the Constitution] would permit some changes to be made by Parliament in respect of the Senate as now constituted, it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process."
-The Supreme Court of Canada in Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, at pp. 77-78