Independent Senate Caucus

nerve · April 16, 2016

So I don't think there is a thread on this so I thought I would start it.

It seems approaching the fall pot isn't the only thing that may be a big change for Canada.

I think it is something like 17 new independent senators are due to be appointed under the new model for nominating senators rolled out in January 2016, with inputs from the provinces and an advisory panel.

This would increase independent members. By the end of the Trudeau government there could be a sizable number of Independents.

Of course we are looking at a majority of independent senators appointed under the new model.

This does not seem to be simple smoke and mirrors to mask a liberal senate but it seems to be the most radical measure set up to change the senate from a partisan house to one that is based on various stakeholders who are required to not currently be a member of a political party to be appointed there.

Is this something that the public will expect by convention in future governments should there be any, or is this just a passing idea?

20 more independents by the fall.

https://en.wikipedia.org/wiki/List_of_current_Senators_of_Canada

Will this non partisanship lead to a "more active" senate that will rail against the parties if they push partisan laws?

Edited April 16, 2016 by nerve

eyeball · April 16, 2016

Whatever else it is, until we start doing things like outlawing in-camera lobbying of politicians we'll still be at the mercy of people who can purchase influence. This is mere tinkering. It only looks like a big sweeping change because incrementalism has conditioned the country to expect change at a pace a slug could dance circles around.

The senate should have been scrapped and replaced with citizen's assemblies and referenda decades ago.

Big Guy · April 16, 2016

The Senate is here to stay. To change it would require a change in our Constitution - no party is prepared to go down that road. It is up to the Senate to organize the way the Senate will be organized. There will be changes in the way committees are formed, organized and created since everything had been based on official political party affiliation.

"Will this non partisanship lead to a "more active" senate that will rail against the parties if they push partisan laws?"

The role of the Senate is to take a second non-partisan look at any piece of legislation. All legislation is "partisan" because it reflects the leanings of the party in power - as well it should because the people have chosen them and their ideas. I believe its role is to be "neutral" and not oppositional.

If the previous Senate had been neutral instead of Conservative, there would have been a lot fewer laws overturned by the Supreme Court. When the Supreme Court votes down some new legislation it is not that it is too partisan but that it is illegal. Part of the Senates job is to raise red flags when some bill is questionable.

nerve · April 20, 2016

The Senate is here to stay. To change it would require a change in our Constitution - no party is prepared to go down that road. It is up to the Senate to organize the way the Senate will be organized. There will be changes in the way committees are formed, organized and created since everything had been based on official political party affiliation.

"Will this non partisanship lead to a "more active" senate that will rail against the parties if they push partisan laws?"

The role of the Senate is to take a second non-partisan look at any piece of legislation. All legislation is "partisan" because it reflects the leanings of the party in power - as well it should because the people have chosen them and their ideas. I believe its role is to be "neutral" and not oppositional.

If the previous Senate had been neutral instead of Conservative, there would have been a lot fewer laws overturned by the Supreme Court. When the Supreme Court votes down some new legislation it is not that it is too partisan but that it is illegal. Part of the Senates job is to raise red flags when some bill is questionable.

I am a little confused, the constitution only seems to designate it as the "Upper House"

As far as a change, I am a little confused as the constitution says

Constitution of Parliament of Canada

17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.

Marginal note:Privileges, etc., of Houses

"18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof. (8)"

Can you share more info where you are drawing your opinion from on the "role" of the senate. As there doesn't appear to be anything in the written constitution that defines that, that I have seen yet.

The only restriction I am aware of on the senate in what Legislation it can craft is voting on spending bills, are there others? (No power to block supply, or budget measures)

However, Australia does, and in fact it seems a constitutional change is not required to change those powers, but rather an act of parliament can designate what powers the senate has.

"The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada,"

It seems very clear that any change would not require the constititonal ammending formula but rather for parliament to agree to the changes.

In fact the organizational limits remain fairly ambiguous due to the lack of clear definition of form and function of the British Parliament in 1867.

I would think it is fairly clear that their powers could redefine the law itself take for example, the powers of the Chancery Regulation Act 1862, which demonstrates that the very function and form of law can be changed by parliament.

https://en.wikipedia.org/wiki/Chancery_Regulation_Act_1862

Although again even Habeas Corpus was defined by Act, not by constitutional right. So indeed, this raises if the powers of parliament were able to effect constitutional rights then would the charter not conflict with the constitution itself?

IE if the powers of parliament were able to effect charter rights, then would the charter be invalid due to limiting the constitution 1867?

https://en.wikipedia.org/wiki/Habeas_Corpus_Act_1862

Of course the notion that the charter / Canada Act violates the constitution act 1867 due to limiting the powers of parliament is likely an argument that would result in the Canada Act being recognized and the constitution act being seen as dated,

however in fact I think legally it is the other way around, and it seems that the Canada Act is in violation to the Constitution 1867 due to limiting powers that are reserved under the constitution 1867.

I would think that the BNA 1867 would have required to be amended also to avoid the conflict

Interestingly it appears that section was ammended...

[19th July, 1875]

Whereas by section eighteen of the Constitution Act, 1867, it is provided as follows: "The privileges, immunities, and powers to be held, enjoyed. and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada. but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof:"

And whereas doubts have arisen with regard to the power of defining by an Act of the Parliament of Canada, in pursuance of the said section. the said privileges, powers, or immunities: and it is expedient to remove such doubts:

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. Section eighteen of the Constitution Act, is hereby repealed, without prejudice to Anything done under that section, and the following section shall be substituted for the section so repealed.

"The privileges, immunities, and powers to be held. enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof."

If you didn't see the difference it is in the end.

"but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof:"

but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.""

Note that it limits it at the powers of the House of Commons.

So, then the question is, without the house of Lords, does the House of Commons have any powers to make laws? If so then, would Parliament even have the power to pass law?

So would any law or act of parliament since 1982 even be legal?

http://www.parliament.uk/about/how/role/system/

http://www.parliament.uk/about/how/laws/passage-bill/

"A Bill can start in the Commons or the Lords and must be approved in the same form by both Houses before becoming an Act (law)."

The powers of BOTH the senate and commons in Canada is only the same as the house of commons, so there would be no path to make law without sending it to the Lords in the UK.

It would seem that the Constitution Act 1867 should have been amended to some how denote the role of the senate is the same as the lords to enable law making ability to parliament.

Clearly this isn't the way it is being done but it does highlight the issue with the framework of the constitution as it relates to the model it is using, and the legal language surrounding it.

I'm guessing most Canadians would be irate if they were stuck in 1982 legally.

It would look something like this

Gradual Civilization Act, 1857 (Province of Canada)

Canadian Bill of Rights 1960
Criminal Law Amendment Act, 1968-69
Divorce Act 1968 - replaced by Divorce Act, 1985
Anti-Inflation Act 1975
Canadian Human Rights Act 1977
Canadian Football Act 1974

Atleast we would have privacy rights...

A government institution may not collect personal information unless it relates directly to an operating program or activity of the institution (section 4).
With some exceptions, when a government institution collects an individual's personal information from the individual, it must inform the individual of the purpose for which the information is being collected (section 5(2)).

With some exceptions, personal information under the control of a government institution may be used only for the purpose for which the information was obtained or for a use consistent with that purpose, unless the individual consents (section 7).

With some exceptions, personal information under the control of a government institution may not be disclosed, unless the individual consents (section 8).

Every Canadian citizen or permanent resident has the right to be given access to personal information about the individual under the control of a government institution that is reasonably retrievable by the government institution, and request correction if the information is inaccurate (section 12).

The Privacy Commissioner of Canada receives and investigates complaints, including complaints that an individual was denied access to his or her personal information held by a government institution (section 29).

Edited April 20, 2016 by nerve