Bicameral Conflict Resolution: Developments in the 42nd Parliament

Guillermo Renna is an alumnus (2018/2019) of the Parliamentary Internship Programme. He holds an undergraduate from McGill University in political science. An earlier version of this paper was prepared as part of the Parliament Internship Programme and nominated for the Alfred Hales Prize.

As co-legislators, the Senate and the House of Commons are central to the legislative process in the Canadian Parliament. Since both Houses must pass legislation in identical form before it can become law, the way the Chambers resolve their differences is crucial to the legislative process. This article focuses on how the Senate and the House of Commons use messages to resolve their differences on legislation.

A central aspect of Canada’s federal legislative system is its bicameralism. Like the United Kingdom, Canada has an appointed Upper House, the Senate, and an elected Lower House, the House of Commons. As co-legislators, the Houses of Parliament may on occasion disagree on legislative matters, and the process by which they resolve their disagreements is an important part of the legislative process. This article focuses on how the Senate and the House of Commons use messages to communicate about legislative matters, and in particular, how they use this process to settle differences on legislation.

Historically, the Senate did not attract much scholarly attention. As recently-retired Senator Serge Joyal, a prominent constitutional scholar and expert on the Senate, notes:

[t]he Senate is likely the least admired and least well known of our national political institutions. Its work attracts neither the interest of the media, the respect of elected politicians, the sympathy of the public, nor even the curiosity of academia.1

However, the Senate attracted considerable attention during the 42nd Parliament because of its willingness to amend bills passed by the House of Commons, which resulted in an increased level of unpredictability.2 The change in the Senate appointment process, introduced by Prime Minster Trudeau, resulted in an increase in the number of senators without a party affiliation. A plurality of senators are now a part of the Independent Senators Group (ISG), which does not require its members to have a unified legislative position. This lack of party discipline contributed to the increased level of unpredictability since it was not clear how senators would vote on a given issue.3 Senators appointed through the new process appeared to view their legislative role differently than their predecessors.4 Understanding the relationship between the Senate and the House of Commons is important because “bicameral institutions do not just affect how governments form but also how governments structure their legislative agenda.”5

This article looks at the rules in each Chamber to deal with amendments from the other Chamber. While the way the Chambers resolve their legislative disagreements is not new, the 42nd Parliament saw an increase in the number of bills amended by the Senate, which resulted in its increased use. This article argues that developments relating to the message process during the 42nd Parliament raise important questions that the Chambers may want to resolve moving forward.

The article describes the message process in detail and outlines the rules in each Chamber regarding this process. To gain a better understanding of the process, the author interviewed two procedural officers, who have asked to remain anonymous, and Senator Peter Harder, former Government Representative in the Senate. The article focuses on three important elements: the difference between the Chambers regarding what they permit as a response to amendments; whether the current structure provides parliamentarians with the information in an accessible way; and, the issue of consequential amendments in the House of Commons.

A Paper Trail: Communication between the Chambers

To become a law, a bill must pass through both Houses of Parliament in identical form. If the Chambers disagree, there are two ways to resolve disagreements. First, they can communicate amendments through a seldom studied but vital mechanism, the written message. The Chambers may engage in a back-and-forth using these messages. This process is colloquially known as ‘ping-pong’. Alternatively, they could put together a conference with members of both Chambers to discuss disagreements. According to House of Commons Procedure and Practice, a conference can be initiated by the Chamber that has the bill.6 However, this practice has fallen into disuse.7

The message is a physical piece of paper that is sent from one Chamber to another. A message may concern bills, the appointment of joint committees and their membership, joint resolutions, or a request for the presence of a Member of one Chamber in the other.8 These messages are signed by the Clerk of the initiating Chamber and signed by the Clerk of the receiving Chamber. The messages appear in the Journals of the House in which there are received.9,10

Messages may also be used to communicate more political matters, including when one Chamber is displeased with the actions of the other. For example, on April 11, 2019, the Senate received a message urging it to pass two pieces of legislation since they “ha[d] been in [the] possession of Honourable Senators for many months and both bills should be passed into law at the earliest opportunity.”11 These messages are not always well received; the Hon. Yonah Martin remarked: “I can hear Senator Cools’ voice rising and saying ‘How dare the other house tell this house what we should or should not do’”.12 Moreover, even if there is agreement, one Chamber may choose to communicate observations to the other Chamber.13

For simplicity, let us take the case of a bill originating in the House of Commons. Once it is passed by the House, the Senate may wish to amend the bill. If the Senate passes the bill with amendments, the bill would be sent back to the House of Commons along with the message from the Senate, which contains the proposed changes, and the engrossed amendments.14, 15

An Amendment Message

The message containing amendments to a bill contains either two or three elements. The first element of the message informs the receiving Chamber which bill is being discussed and asks that the receiving Chamber concur with its changes. The second element is legal and sets out the amendments that are being proposed to the bill. The last element, which is not included in every message, is political.

In its response to an amendment message, a Chamber may include information about why a particular amendment was included or rejected. For instance, the motion presented by the Minister of Public Safety and Emergency Preparedness to disagree with certain amendments made by the Senate to Bill C-59 stated that:

the House … respectfully disagrees with amendment 1 made by the Senate because the intent of the legislation is to ensure ministerial responsibility and accountability, and the legislation provides that the Intelligence Commissioner must review whether or not the conclusions of the Minister of National Defence, when issuing a foreign intelligence authorization, are reasonable; additionally, subsection 20(1) already requires the Commissioner to provide the Minister with reasons for authorizing or rejecting a foreign intelligence authorization request.16
The procedure for considering a message containing amendments varies by Chamber and will be described in detail below.

The Message Process Explained

Purpose of the message process

Each stage of the legislative process restricts the scope of discussion and potential amendments to ensure that the purpose of that stage is achieved. For instance, second reading debate focuses on the principle of the bill, to explore whether the subject matter or policy intent of the bill is worth pursuing. As a result, the scope of amendment allowed at this stage is limited. The text of the bill cannot be amended, only the motion for second reading, and “debate must focus on the principle of the bill and not on its individual provisions.”17

While each Chamber’s procedure for dealing with amendments from the other Chamber differs, it would appear that both aim to achieve the same goal. Namely, the purpose is to help legislators focus on the elements of legislative disagreement that remain. As one interviewee stated, the use of the message process to resolve disagreements is “meant to focus [debate]. That is to say that the messages should deal with the amendments and either seek to replace the amendments appropriately or drill down. It’s not meant to widen [debate].”18 Another interviewee described the message process “as a funnel. When you ping pong back, what remains open for discussion are the remaining points of discord.”19 Senator Harder echoed a similar idea: “it is a different debate than the bill. The message is not the bill. Unfortunately, some Senators now think we have a fourth reading, as opposed to a message. And that’s one where we have to continue to make that clear.”20

Procedure in the House

A message with amendments sent by the Senate will appear in the House of Commons’ Journals on the day it was received. If the House wishes for the bill to become law, then it must respond to the proposed amendments. Usually, the sponsor of the bill proposes a motion, which requires notice, in which they propose to reject, accept, or amend the amendments. The motion may do all three in any one message (i.e., it can reject some amendments, accept and amend others, all in the same message). There are instances, however, where it is not the sponsor of the bill that proposes the motion, but rather someone who proposes it on the sponsor’s behalf. In particular, for Government bills, a minister can present a motion on behalf of another minister.21 For instance, on June 17, 2019, Hon. Bernadette Jordan (Minister of Rural Economic Development) moved a motion on behalf of Hon. Marc Garneau (Minister of Transport) regarding Senate amendments to Bill C-48, Oil Tanker Moratorium Act.22

The motion presented to respond to Senate amendments in the House of Commons is debatable and can be amended during debate. The rules in the House are explicit that, “the motion [responding to the amendments made by the Senate] must relate exclusively to the Senate amendments, and not to other provisions of the bill not contemplated by Senate amendments.”23 Moreover, “[w]hen debate takes place on Senate amendments, Members who speak must confine themselves to the amendments being considered and may not address other aspects of the bill, or the bill as a whole.”24 When the House is ready to debate and vote on the amendments made by the Senate, the heading, “Motions Respecting Senate Amendments to Bills” will appear on the Notice Paper; however, the length of time between when a message is received and when it is considered can vary significantly.25 If the House votes to approve the motion, it will then send a message to the Senate to inform it of the House’s decision.

Procedure in the Senate

The Senate rules for considering the House’s amendments to Senate bills are less restrictive. In the case where the House of Commons has disagreed with the amendments made by the Senate, the latter can choose to insist on its amendments, which it would do by instructing a committee to write up the reasons for which the Senate is choosing to insist.26 Moreover, should the House further amend amendments sent to it, the Senate must choose whether it will accept the modifications to its amendments. However, the rules are silent on the scope of the motion that must be presented and on the rules of debate at this stage. As we will see below, this has produced interesting consequences for certain bills.

Differing Approaches to the Scope of Motion for Amendment Messages

This section examines the differences in the scope of the motion presented to respond to a message by focusing on two bills, namely Bill C-14 and Bill S-3. As we will see, when the House of Commons sends a message with amendments to the Senate, the Senate’s approach allows senators to propose amendments to clauses not contemplated by the message from the House. On the other hand, the House is far more restrictive, insofar as its members have less flexibility in proposing amendments. This difference, in essence, gives individual Senators more power than individual Members of the House. It also highlights that, “when the rules of one chamber permit legislation to include provisions that are prohibited in the other, problems of policy and procedure become intertwined.”27

Approach in the Senate

Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), was introduced because of a Supreme Court ruling legalizing medical assistance in dying.28 The Government introduced the bill in the House on April 14, 2016. Once in the Senate, the bill was passed with several amendments. The House of Commons disagreed with certain amendments and sent a message back to the Senate to inform it of its choices. At this point, procedurally, the Senate could have concurred in the House’s message or insisted on its amendments. Senator Harder introduced a motion that the Senate not insist on its amendments.

During the Senate’s debate on this motion, Senator Joyal argued the following:

I think there’s a way for us to solve the impasse that we might have with the other place on the essential element of this bill, and the proposal I want to make to you, honourable senators, is the following. We would adopt the bill as it stands now, but we would do one thing. We would suspend the implementation of the section of the bill that is the object of dispute on the nature of its constitutionality and medical implementation up to the time that the government will have requested the Supreme Court’s ruling on its constitutionality.29

His proposed amendment would have introduced two new clauses to delay the coming into force of certain aspects of the bill.

On a point of order, Senator Harder argued that amendment was out of order, because “[a]ny attempt to deal with any other aspect of the bill is procedurally out of order or out of bounds. It is up to the Senate to accept or not the House of Commons’ message. Any other matter is beyond the scope of our message and beyond the scope of the main motion before us.”30 The Speaker ruled briefly thereafter:

[W]e must recognize that we are engaged in a dialogue between the two houses to reach an acceptable compromise on Bill C-14. We have agreed on most points, and the disagreement between the two houses has narrowed to limited aspects of the bill. As Senator Cools pointed out, it would be inappropriate to bring entirely new issues into play at this point. It is this legitimate concern that is at the heart of Senator Harder’s point of order. However, as I understand it, the amendment that Senator Joyal has moved accepts most of what the House of Commons has proposed to us in relation to amendments 2(b), 2(c)(ii) and 2(c) (iii). The effect of his amendment, if accepted by the two houses, will be to delay the coming into force of a provision of the bill that is already included in the message. As such, the amendment can reasonably be seen as being relevant to the message. In situations such as this, however, where there is uncertainty, it is our longstanding practice to allow debate to continue.31
While the amendment was found admissible, it was not adopted by the Senate.

Approach in the House

By contrast, a Speaker’s ruling in the House of Commons reveals a narrower understanding of relevance that restricts MP’s ability to introduce amendments. Bill S-3: An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur general) was introduced in the Senate in 2016. After considering a first round of amendments made by the House, the Senate sent the bill back to the House in the fall of 2017, with new amendments, which the House began to consider on November 17, 2017.

Hon. Carolyn Bennett (Minister of Crown-Indigenous Relations and Northern Affairs), introduced a motion that agreed with all the amendments made by the Senate. In his speech in response to the motion, MP Romeo Saganash proposed several changes to the motion, two of which are particularly salient for our discussion.

In the original bill, the Government had included a liability clause (clause 10), which would eliminate the ability of individuals to sue the Government, Government employees, or band councils to receive compensation as a result of not being registered under the Indian Act prior to the coming into force of Bill S-3. In its original form, part of clause 10 read, “a person was not registered, or did not have their name entered in a Band List, immediately before the day on which this Act comes into force.”32 One of the Senate proposals was to replace the word “Act” with the word “section”.

In his proposed amendments, Mr. Saganash proposed deleting the liability clause altogether. Moreover, his proposal would have amended clause 11, which required that the Minister begin consultations with First Nations on a wide range of issues relating to registration and band membership. In particular, his proposal would have included a new provision requiring the Government to complete the consultations within 18 months of Royal Assent.

Hon. Anthony Rota, then-Assistant Deputy Speaker, ruled that the amendment was out of order for two reasons. First, House of Commons Procedure and Practice states that the motion must relate exclusively to Senate amendments, and “The hon. member … proposed deleting clause 10 [the liability clause] while the Senate is simply proposing a technical amendment.”33 Second, the Senate amendments did not deal with clause 11. Therefore, the Assistant Deputy Speaker concluded that the motion was out of order.

The second part of the ruling is in line with the procedural requirement that the amendments deal only with clauses that the Senate amended. However, the Assistant Deputy Speaker also included a second reason to reject the proposed amendments. He argued that the amendment that Saganash was proposing did not consider the type of amendment that the Senate proposed. The ruling suggests that, at this stage, not only should the scope of debate be restricted to those clauses included in the message, it adds that the House of Commons must only allow for discussion and disagreement to substantive amendments. Interestingly, prior to the ruling there was no indication that the motion should take into consideration the type of change that the Senate was proposing. While it is possible that the Speaker was not creating a new distinction (i.e. substantive vs. technical amendments), the fact that the Speaker went out of his way to include this in his reasoning raises interesting questions.

As illustrated in these rulings, the Senate allows for a much broader discussion at this stage than does the House. Therefore, while the Senate and the House want to focus debate and narrow down the discussion to the elements of disagreement, the Senate does not preclude the introduction of new ideas if it can reasonably be seen as relating to the elements of disagreement between the Chambers.

Policy Change

The two Chambers’ differing approaches to the scope of the motion responding to messages concerning legislative amendments, highlighted in the case studies above on Bills C-14 and Bill S-3, demonstrate that the Senate’s procedural approach provides it (and potentially the Government) with the opportunity to revise legislation late in the legislative process, which the House of Commons would be unable to do. The Senate’s substantive changes to Bill S-3 at the message stage highlight how the Senate’s approach can have substantive effects on policy outcomes.

Bill S-3 was introduced as a result of the decision of the Superior Court of Québec in Deschenaux v. Canada (Procureur general) and sought to deal with the sex-based inequities under the Indian Act. The Indian Act provided that women with Indian status who married men without Indian status lost their Indian status, whereas men with Indian status who married women without Indian status did not, and men’s spouses would also be able to gain Indian status. On August 3, 2015, the Court ruled that this inequity was a violation of the equality provision in the Charter of Rights and Freedoms and suspended the implementation of its decision for 18 months, until February 3, 2017, to allow Parliament to rectify the situation.34

In its original form, the bill only rectified discrimination going back to 1951. Given the timeline set out by the court, the Government was pressed for time when it introduced the bill in October 2016. However, during its hearings, the Standing Senate Committee on Aboriginal Peoples heard from several stakeholders critical of the Government’s choice to rectify inequities only from 1951 onwards. Because of the time it was taking for Parliament to pass the bill, the Government asked for an extension on the implementation of the judgment, which it received, extending the deadline to July 3.35 The Senate amended the bill such that it would have removed the 1951 cut-off date, in favour of an approach “that would [have] register[ed] all descendants of entitled individuals, born prior to April 17, 1985, under paragraph 6(1)(a) of the Indian Act,”36 and passed the bill on June 1, 2017.

The House of Commons disagreed with the approach taken by the Senate, and passed the bill on June 21 with amendments that disagreed with the Senate approach of removing the 1951 cut-off date. The Senate did not respond before Parliament adjourned for the summer; therefore, the Government had to ask for another extension from the Court. The Quebec Superior Court did not grant the extension;37 however, the Government appealed to the Québec Court of Appeal, which granted an extension until December 17, 2017.38 During the summer, the Government conducted more consultations, and decided to adopt the Senate’s policy approach.

As a result, the Senate needed to modify the bill extensively. Senator Harder introduced an extensive and complex motion responding to the message from the House of Commons – reflecting the change in policy direction. The motion dealt with sections not considered by the message received from the Commons, and it dealt with issues far beyond those considered by the message. The House of Commons ended up agreeing with the Senate amendments.

The ability of the Senate to introduce a wider range of amendments at the message stage provided the Government the opportunity to change its policy direction without having to introduce an entirely new piece of legislation to rectify the perceived problems. However, this raises important questions about the consequences of the differing approaches taken by the House and the Senate at this stage. Would a Senator be able to introduce an entirely new section of a legislation, proposing a new policy approach as long as it dealt with the topic of disagreement between the Houses? How flexible the Senate will be remains to be seen.39

Accessibility of the Message Process

Should the Senate continue to amend Government bills as much as it did during the 42nd Parliament, the message stage will become an increasingly important element of the legislative process, as it is the main mechanism for the Chambers to resolve their disagreements. Given its importance, a question that needs to be addressed is whether the process is accessible to all MPs or Senators. As the 42nd Parliament demonstrated, the Senate is not afraid to provide extensive and substantial amendments to bills from the House of Commons. When this is the case, the House often has little time to consider those amendments. This was the case, for instance, for Bill C-69.

The Government introduced Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts on February 8, 2018. The bill, a priority for the Government, intended to change the environmental assessment process, including expanding the list of considerations to be taken into account during the assessment process, which the Government hoped would restore its effectiveness and its credibility;40 to establish the Canadian Energy Regulator, tasked with regulating the “exploitation, development, and transportation of energy”41 within Parliament’s jurisdiction; and included new provisions in the Navigation Protections Act,42 which would “restore navigation protection for every navigable waterway in Canada.”43 The House of Commons passed the bill on June 20, 2018.

By the time it made its way to the Senate Committee on Energy, the Environment and Natural Resources, the bill had attracted national attention and become a source of controversy.44 Six provincial premiers sent a letter to the Prime Minister to warn him that the bill threatened national unity, stating that “immediate action to refine or eliminate these bills [Bill C-69 and C-48] is needed to avoid further alienating provinces and their citizens and focus on uniting the country.”45

The Senate committee tasked with studying the bill was already struggling with the volume of amendments proposed in committee. Senators had a difficult time following the process, including where to find amendments and what those amendments meant, even with a follow-along document created by the committee clerks and analysts. With one even asking, “Do I understand we’re on number 31? That’s where I am.” With other senators responding, “Some Hon. Senators: No.”46

The bill made its way back from the Senate on June 6, 2019, with over 180 amendments. Strong opponents of the bill celebrated the work of the Senate and urged the Government to accept all of the changes. This included Jason Kenney, recently elected Premier of Alberta and vocal opponent of the bill, who in a letter to Senator Harder stated that, “While we remain concerned about the overall spirit of Bill C-69, we believe that with the inclusion of all these amendments, that the bill would be acceptable to the interests of Albertans.”47

On June 12, the House began consideration of Senate amendments, and on June 13, the House sent a message back to the Senate with its own amendments. In their message, the House of Commons accepted a number of amendments, rejected others and further amended some of the Senate’s amendments. With the partial or whole acceptance of almost 100 Senate amendments, some senators expressed that they were pleased with the new bill.48 The Senate began consideration of the House of Common’s message on June 17, 2019, and on June 20, 2019, it chose not to insist on its amendments, and the bill proceeded to Royal Assent.

The example of Bill C-69 raises an important question regarding how accessible this process is for parliamentarians, who are expected to review these amendments. As mentioned earlier, when a message comes from the Senate with amendments, the Senate will also send back the bill. In order for MPs to read the message, they need two or three items. First, they need the message which contains all of the amendments made by the Senate. They must also have the bill under consideration as passed by the House. Lastly, in the case where the bill under consideration amends existing legislation, they need to have the original legislation. Then they must follow the amendment from the Senate message, to the amending bill or original bill.

This process requires extensive amount of time and technical knowledge to follow. In the case of Bill C-69, Members of Parliament had approximately six days to examine the over 180 amendments proposed by the Senate. Senators, once the bill returned from the House, had three days to review the House of Commons’ message before discussions began. Given the tight timelines, the complexity of the legislation and its amendments, one might wonder if parliamentarians are concerned about whether the process as it currently stands provides them with information in such a way that they are satisfied with the information before them to make with the decision they have been asked to make.

Consequential Amendments

As we saw, the House of Commons places strict limits on the types of amendments MPs can propose when dealing with a Senate message; however, there remain important questions about a ‘grey area’, namely consequential amendments. Consequential amendments occur when a part of the bill has to be amended because of another amendment. For instance, in order to ensure a legislatively cohesive bill, if I amend clause 3, then I must also amend clause 5. The use of consequential amendments is a normal part of the legislative process; however, it poses an interesting problem in the House of Commons when it deals with amendments from the Senate.

As noted above, the House of Commons requires that the motion presented to respond to amendments made by the Senate deal only with the parts of the legislation that were dealt with in the message. However, what were to happen if the House needed to include a consequential amendment as a result of an amendment proposed by the Senate, or if it needed to include a consequential amendment as a result of its amendment? Over the course of the interviews, one of the interviewees stated that, in the case of consequential amendments:

if such a thing were to arise, though I still think that would be a little weird, but if such a thing were to arise there would be an opportunity to open up an amendment, or clause of the bill for the purposes of putting in the cross-reference. There’s nothing substantive taking place.49

Another interviewee added that:

You can sometimes see it in the Government motion is as a consequence of amendment 4 [hypothetical scenario], proposes the following amendment. Now, how clear that consequence is, there’s room for procedural argument around that. I tend to agree, we’re pretty strict in terms of scope and relevance in terms of Senate amendments so there’s not a huge opportunity. The idea is, again, that the funneling down, if you’re going to add something new, then all of a sudden your ping-pong gets wider, and you don’t want this to go on interminably.50
A similar situation occurred in the case of Bill C-69. In the motion responding to the Senate’s amendments, the House of Commons amended certain amendments proposed by the Senate. In some instances, as a result of its amendments, it allegedly also needed to amend other sections of the bill. For instance, in its motion, the Government proposed certain amendments in the following form: “that as a consequence of the amendment to amendment 1(af)(ii), the following amendment be added:”51

However, if one were to look at the proposed consequential amendment, it dealt with a clause of the bill included in the Senate message; however, it did not amend the same part of that clause, nor deal with the same subject matter. This raises an important question about what criteria, if any, will be used to determine whether such an amendment constitutes a technical amendment, or whether it is a substantive amendment not dealing with a matter raised in the message from the Senate. Moreover, one can easily imagine that an amendment which may seem technical, such as including a comma, could in fact change the meaning of a sentence and therefore be substantive in nature.

Conclusion

As this article demonstrates, the increased number of messages in the 42nd Parliament highlights the need to better understand the way the Senate and House of Commons resolve their disagreements over legislation. The Chambers have a similar understanding of what they are trying to achieve when dealing with amendments from the other Chamber; namely, the scope of debate should be narrowed and focused on the elements of disagreement or difference and it is not about reopening settled matters. However, each Chamber has adopted a unique approach. The Senate has a broader approach, which allows for a wider range of discussion than the House of Commons and gives senators more flexibility in their response to an amendment message. While the Senate still considers the issue of relevance, it takes a broader approach to what it considers relevant, and therefore what kind of amendments are admissable. The House of Commons, on the other hand, has a more restrictive approach, which places more limits on the ability of its members to discuss new ideas at this stage.

There are a number of questions that remain unanswered. This lack of clarity may cause challenges going forward. For instance, the House of Commons will have to provide more clarity on how it will determine whether an amendment, on its own or as a consequential amendment, is acceptable even if it deals with a part of the bill not dealt with in the message from the Senate. Since we could continue to see a high number of ‘ping-pongs’ between the Chambers, it will be important that all parliamentarians are aware of the details of this procedure in order to be able to engage with the process. It would be worthwhile for the Senate and House of Commons committees dealing with procedure to study these questions further.

Notes
1 Serge Joyal, “Introduction” in Serge Joyal, ed, Protecting Canadian Democracy: The Senate You Never Knew, (Montréal: McGill-Queen’s University Press, 2003) at xvii.

2 Alex Boutilier, “Unpredictable Senate causing trouble for Trudeau’s agenda, documents show”, Toronto Star (23 April 2017), online: < https://www.thestar.com/news/canada/2017/04/23/unpredictable-senate-causing-trouble-for-trudeaus-agenda-documents-show.html>. Eric Grenier, “Why the Senate is unpredictable – and its independents not so independent”, CBC News (19 June 2017), online: < https://www.cbc.ca/news/politics/grenier-senators-votes-1.4162949>

3 Institute for Research on Public Policy, “Renewal of the Canadian Senate: Where to from Here?” (February 2019) at 9, online: Institute for Research on Public Policy < https://irpp.org/wp-content/uploads/2019/02/Renewal-of-the-Canadian-Senate.pdf>

4 Will Stos, “Canadian Study of Parliament Group: The New Senate,” Canadian Parliamentary Review 40:4 (2017).

5 David Fortunato, Thomas König & Sven-Oliver Proksch, “Government Agenda-Setting and Bicameral Conflict Resolution” (2013) 66:4 Political Research Quarterly at 948.

6 Marc Bosc and André Gagnon, House of Commons Procedure and Practice, 3rd ed (Cowansville: Yvon Blais, 2017) at 797.

7 Ibid at 796; Dan Hays, “Reviving Conference Committees” 31:3 (2008) Canadian Parliamentary Review.

8 Canada, Senate of Canada, Senate Procedure in Practice (June 2015) at 79.

9 Supra note 6 at 794.

10 Supra note 8 at 149.

11 Senate, Journals of the Senate, 42nd, 1st Sess, (11 April 11, 2019) at 4540 .

12 Debates of the Senate, 42nd Parl, 1st Sess, vol 150 (11 April 2019) at 7850 (Hon. Yonah Martin).

13 The Senate may also choose to include recommendations or comments made by the Committee that studied the bill even if it has not made amendments. See Supra note 6 at 794. For instance, on January 23, 1990, the House of Commons received a message the Senate had passed Bill C-3, An Act to establish the Department of Industry, Science and Technology, to repeal the Department of Regional Industrial Expansion Act and to make consequential amendments to other Acts, without amendment. However, the Senate “ALSO ORDERED: That the Message to be sent to the House of Commons acquainting that House that the Senate have passed Bill C-3, contain the observations and recommendation appearing in the Eighth Report of the Standing Senate Committee on Social Affairs, Science and Technology, dated 12th December, 1989, as follows:” House of Commons, Journals, 34th Parl, 2nd Sess, vol 131 (23 January 1990) at 1091.

14 If the Senate does not propose any amendments, it sends a message to the House to inform it that it has passed the bill without amendments.

15 The engrossed amendments translate the message into ‘legislative language’ and indicate to the legislative drafters how the modifications should be included in the bill.

16 House of Commons, Order Paper and Notice Paper, 42nd Parl, 1st Sess, No. 427 (5 June 2019) at XV.

17 Supra note 6 at 749.

18 Interview with House of Commons Procedural Officer, (June 7, 2019) Ottawa, Canada.

19 Ibid.

20 Interview with Senator Harder, (June 7, 2019) Ottawa, Canada.

21 In the case of Private Members’ Bills, it must be the sponsor of the motion that gives notice of the motion.

22 House of Commons, Journals, 42nd Parl, 1st Sess, No. 435 (17 June 2019) at 5647.

23 Supra note 6 at 795.

24 Ibid.

25 For instance, for Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), it took one day. The Senate sent its message on June 15th, 2016, and the House of Commons took up consideration of amendments June 16th, 2016. Whereas in the case of Bill C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures, it took almost a year. The Senate sent a message on June 21, 2016 and the House of Commons took up consideration amendments on May 12, 2017, almost a year later.

26 Supra note 8 at 150; Rules of the Senate of Canada, Rule 16(3)-3: “[t]he Senate shall charge a committee with the task of drawing up the reasons required in a message under this rule.” The Senate insisted on its amendments in the case of Bill C-49, Transportation Modernization Act. It was the first time in 12 years that it had done so. See John Paul Tasker, “Senate rejects Commons’ transportation bill C-49 for 2nd time” CBC News (9 May 2018) online: < https://www.cbc.ca/news/politics/senate-insists-on-amendments-transport-bill-1.4656010>

27 Stanley Bach, “Germaneness Rules and Bicameral Relations in the U.S. Congress” 7:3 (1982) Legislative Studies Quarterly at 342.

28 Ian Austen, “Justin Trudeau Seeks to Legalize Assisted Suicide in Canada” New York Times (15 April 2016) online: < https://www.nytimes.com/2016/04/15/world/americas/canadian-prime-minister-seeks-to-legalize-physician-assistedsuicide.html>

29 Debates of the Senate, 42nd Parl, 1st Sess, vol 150 (17 June 2016) at 1216 (Hon. Serge Joyal).

30 Debates of the Senate, 42nd Parl, 1st Sess, vol 150 (17 June 2016) at 1217 (Hon. Peter Harder).

31 Debates of the Senate, 42nd Parl, 1st Sess, vol 150 (17 June 2016) at 1220 (The Hon. The Speaker).

32 Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), 1st Sess, 42nd Parl, 2017 (as passed by the Senate on June 1, 2017).

33 House of Commons Debates, 42nd Parl, 1st Sess, Vol 148 (29 November 2017) at 15752 (Mr. Anthony Rota).

34 Descheneaux v. Canada, 2015 QCCS 3555.

35 CBC News, “Quebec Superior Court grants extension for update to ‘discriminatory’ Indian Act”, CBC News (26 January 2017), online: < https://www.cbc.ca/news/indigenous/court-extension-update-indian-act-1.3953515>

36 Canada, Indigenous Services Canada, The Government of Canada’s Response to the Descheneaux Decision (Ottawa: Indigenous Services Canada, 2018), online: accessed, 26 August 2020.

37 Michelle Zilio, “Quebec Superior Court blocks extension to fix discrimination in Indian Act”, The Globe and Mail (29 June 2017), online, < https://www.theglobeandmail.com/news/politics/quebec-superior-court-blocks-extension-to-fix-discrimination-in-indian-act/article35507784/>

38 AG Canada c. Descheneaux, 2017 QCCA 1238.

39 The House could, for instance, by unanimous consent discard its own rule; however, barring it doing this every time, its rules will remain less flexible.

40 Martin Olszynski, “Proposed Bill C-69 amendments undermine science”, Policy Option (27 May 2019) online

41 An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, 2019, c. 28.

42 Renamed the Canadian Navigable Waters Act in Bill C-69.

43 House of Commons Debates, 42nd Parl, 1st Sess, vol 148 (14 February 2018) at 17204 (Hon. Catherine McKenna).

44 Tony Seskus, “Senate roadshow stops in Alberta’s oilpatch for feedback on impact-assessment bill”, CBC News (9 April 2019) online: < https://www.cbc.ca/news/business/bill-senate-alberta-pipelines-1.5088809>. Peter Zimonjic, “Premiers ‘threatening national unity’ with their demands on federal environmental bills: Trudeau”, CBC News (11 June 2019) online: < https://www.cbc.ca/news/politics/tory-premiers-threaten-national-unity-trudeau-1.5171359>

45 David Akin, “In ‘urgent letter,’ 6 premiers tell Trudeau national unity would be threatened if bills C-49, C-69 become law.” Global News (10 June 2019) online:

46 Evidence, Standing Senate Committee on Energy, the Environment and Natural Resources, 42nd Parl, 1st Sess, No. 70 (May 13, 2019); see also Evidence, Standing Senate Committee on Energy, the Environment and Natural Resources, 42nd Parl, 1st Sess, No. 70 (May 16, 2019).

47 John Paul Tasker, “Jason Kenney now says Alberta can live with amended C-69 environmental assessment bill.” CBC News (23 May 2019), online:

48 Anis Heydari, “Changes to Bill C-69 ‘unprecedented’ says Alberta senator, but energy industry isn’t placated”, CBC News (13 June 2019) online:

49 Interview with House of Commons Procedural Officer, (June 7, 2019) Ottawa, Canada.

50 Ibid.

51 House of Commons, Order Paper and Notice Paper, 42nd Parl, 1st Sess, No. 432 (12 June 2019) at XII.