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Howard Anglin and Ray Pennings: Canada is careening towards a constitutional crisis in the Senate


The Senate is currently debating a motion based on the latest of 13 reports from a special committee on modernization that was struck six years ago. The Senate’s rules still presume a traditional adversarial structure with a government caucus and an opposition, but that is increasingly challenging in a 105-seat chamber that now includes an official government representative, 13 members of an official opposition caucus, with the rest divided between independents and three loose parliamentary “groups.” 

Senator Marc Gold is the government representative in the Senate. His job includes getting the government’s legislative agenda passed and answering questions on behalf of the government in the Senate. Senator Gold isn’t officially even a Liberal (although he is a member of the Liberal government’s Cabinet operations committee.) He describes his relationship to the government as similar to that of a lawyer to a client.  

The Conservatives don’t buy it. They view Senator Gold as a Trudeau puppet as they do most of the other eighty-one “independent” senators appointed by Prime Minister Trudeau. An objective analysis suggests they have a point. Without casting aspersions on the integrity of any senator, Trudeau’s appointments are not a representative cross-section of “independent” Canadian political perspectives. There is a relatively cohesive ideological conformity that is mostly aligned with the current Liberal Party. 

So far, there has not been any reason to question these new senators’ genuine commitment to public service, which has included a general sensitivity about an unelected Senate impeding the will of the elected House of Commons. But restraint is much easier when the Senate is politically inclined toward the government. What happens when legislation from a future Conservative government runs into a Senator’s strong ideological commitments? Is there an expectation that senators with deeply held convictions will pass legislation they believe is wrong? Will a senator committed to fighting climate change by any means just go along with a bill repealing the federal carbon tax?

Senate shenanigans impeding legislation have occurred before over issues that were more pragmatic than reflective of deeply held convictions. Recall 1990, when then-Opposition Leader Jean Chretien mused that his senators were considering “killing” Brian Mulroney’s proposed GST bill in the Senate. The issue was sidestepped through a rare constitutional provision, by which Mulroney was able to appoint eight additional senators and the bill cleared the Senate by just two votes. The decision of the next Liberal government to retain the GST proved the senators’ concern was more political than principled.  

There will always be a temptation to politicize the Senate’s constitutional powers, but the partisan system that prevailed before Justin Trudeau began appointing “independent” senators checked that temptation. It meant that if a party’s senators blocked legislation that had been approved by the elected majority in the House of Commons, there could be political consequences for the party’s brand in the next general election. The new “independent” model has removed the indirect accountability that might discourage such an abuse of the Senate’s power.  

Because some of the new “independent” senators may believe that they were appointed on the basis of their individual merits, they may be emboldened—or even expected—to exercise their newfound political power to thwart the democratically elected House of Commons in a way that partisan appointees did not. If that is how they come to feel and act, there is nothing a future government can do about it. A 2014 Supreme Court opinion said that even something as relatively minor as imposing Senate term limits would require broad federal-provincial agreement, which means new constitutional limits on the Senate’s powers that are all but impossible. As a result, Senate reform has mostly vanished from the federal agenda.

Except that while no one was paying much attention, Senate reform has happened.

The consequence of eliminating the Westminster structure of government and opposition caucuses in the Senate while leaving its constitutional powers intact may prove more consequential than many of the previously debated Senate reforms. The idea of the Senate as a regional and partisan chamber of “sober second thought” has been functionally replaced with the idea of the Senate as a political check on the House of Commons. And under a new Conservative government, a Liberal-appointed Senate majority could also become an ideological check on the government’s agenda. If so, Prime Minister Trudeau will have achieved more by fiat than his predecessors ever attempted through constitutional reform. 

The old Senate model worked because partisan appointees saw themselves as secondary legislative players to the elected House of Commons and they brought that attitude to the scrutiny of legislation, even—or especially—legislation they disagreed with. Senators reviewed and suggested revisions to legislation, tested policy evidence at hearings, and conducted independent studies conscientiously and with integrity, but also with political modesty. The understanding was that the Senate might occasionally balk at the government’s agenda, but ultimately it would back down.  

New Brunswick Senator Joan Kingston, centre, poses for a photo with Senator Nancy J. Hartling, right, and Senator Marc Gold ahead of a swearing-in ceremony at the Senate of Canada in Ottawa, on Tuesday, Nov. 21, 2023. Spencer Colby/The Canadian Press.

There were only a handful of notable exceptions to the rule, but they stand out because they were so rare. Famously, in 1988, a Liberal majority in the Senate defeated the Conservative government’s free trade bill. In response, Mulroney dissolved Parliament and in the subsequent election he received a strong electoral mandate for free trade with the United States. His newly-elected government reintroduced the bill and this time the Senate stood down and passed it. 

Would a Senate dominated by a relatively narrow ideological perspective broadly aligned with the previous government and untethered from public opinion be so acquiescent? Unshackled from formal partisan affiliation, will senators feel entitled to stare down elected MPs and block a government agenda they oppose? If they want to do so, they will certainly have the votes. Given that senators can serve until their 75th birthday, even if the next government wanted to rebalance the present ideologically unrepresentative makeup of the Senate, it would take the better part of a decade to do so. (Of course, seeking to achieve “ideological representativeness” by appointment is a fraught and subjective process at the best of times.)

If a majority of the Senate chose to block or severely delay a Conservative government’s legislative agenda, it would plunge the country into a constitutional crisis the likes of which we have not seen in more than a century. The fact that individual senators who “resisted” a Conservative government would likely be feted by many Laurentian elites as political heroes would only highlight the Senate’s democratic deficit and exacerbate the institutional damage. And with no realistic path to constitutional reform, we could see our politics take a dark, but not unprecedented, turn.

Given the way that the Senate’s political makeup trails democratic changes in the House, it is surprising that we have not been pushed to this constitutional precipice before, but it has happened elsewhere. In 1911, the British Liberal Party proposed a radical program of new taxes to fund social programs known as the “People’s Budget.” In a clear breach of constitutional convention, the House of Lords—whose members, incidentally, stood to lose the most financially—voted it down, triggering a constitutional crisis. 

As in Canada in 1988, it took an election in which the country at large broadly endorsed the Liberals’ budget to force the Lords to blink. Even then, it required the additional threat by the government (with the backing of the King) to appoint dozens of new peers to swamp the existing majority in the Lords—an option not available to a Canadian prime minister, who can only appoint up to eight additional senators above the usual constitutional limit of 105—for the House of Lords reluctantly to back down.

To avoid a future showdown with the Lords, the government introduced and passed the Parliament Act 1911, which provided that henceforth the unelected Lords could delay, but not block outright, the passage of legislation.The initial two-year delay period was later shortened to one year pursuant to the Parliament Act 1949. This legal restriction was later supplemented by a new constitutional convention to reinforce the principle of democratic control of parliament. Known as the Salisbury-Addison Convention,After the leaders, respectively, of the Labour and Conservative parties in the Lords at the time. it provides that the House of Lords will quickly pass legislation that was specifically mentioned in the government’s election manifesto (platform).

Both measures would be wise additions to the Canadian constitutional order, regardless of how the Senate responds to the next Conservative government, but we hope that neither will be necessary. A constitutional crisis precipitated by overweening Senators attempting to stymie an elected government’s legislative agenda would be a disaster for the Senate and the country. Canadian politics would grind to the kind of impasse that is only broken by the kind of extraordinary force whose political and social repercussions are unpredictable. 

Throughout Canadian history, the Senate’s constitutional legitimacy has depended on its members’ political restraint. Our Senate functions best when its members work diligently and conscientiously, but always with a nagging awareness of their democratic illegitimacy. They may oppose the government vocally, but not politically. They may push back occasionally, as long as they yield in the end. Should the Senate face a Conservative government with an ambitious legislative agenda after the next election, all Senators would be wise to remember that. 

Aaron Gasch Burnett: Like it or not, Canadian resources are exactly what the free world needs during today’s geopolitical upheavals


Since Russia tried to take over all of Ukraine two years ago, Europe has made major strides in gradually weaning itself off Russian gas.  But, its appetite for Canadian natural gas hasn’t gone away, whatever the Trudeau government might like to think.

This March, Greek Prime Minister Kyriakos Mitsotakis himself said so during his Canadian visit. He even made it clear his country was “very interested” in Canadian liquefied natural gas (LNG), and not simply for geopolitical reasons, but environmental ones too.

“As fast as we go in terms of our renewable penetration, we will still need a reliable source of electricity and for us, for  Greece, we don’t have nuclear. We’re moving completely away from coal so that leaves natural gas for the foreseeable future as a significant source of energy for the production of electricity,” he told CTV’s Question Period.

“Canada is a country with which we share so many values,” he added, confirming that Greece and other European countries would much rather buy their energy from a fellow liberal democracy like Canada, rather than the world’s autocrats.

Yet buying energy from dictators is precisely what Germany was left to do after Chancellor Olaf Scholz returned empty-handed from a frantic trip to Canada two years ago, looking for replacements for Russian gas. 

“As Germany is moving away from Russian energy at warp speed, Canada is our partner of choice,” Scholz said at the time. “For now, this means increasing our LNG imports. We hope that Canadian LNG will play a major role in this.”

Yet Prime Minister Trudeau rebuffed Scholz, claiming there was no “business case”—even as countries like South Korea, Japan, Ukraine, Poland, and Latvia all contradicted his conclusion. For Japan and Poland in particular, these calls for more Canadian LNG came from the very top.

Instead, Canada sold Scholz some hydrogen. The current federal government, along with environmental groups like the Pembina Institute, view a long-term commitment to fossil fuels like LNG as worsening climate change significantly. Supporting LNG exports to Europe would also require infrastructure investments into ports on the east coast – matching the one in Kitimat, B.C. Such support is unlikely to play well politically with the Liberal Party’s environment base.

Meanwhile, the German chancellor signed an LNG deal with autocratic Qatar instead of democratic Canada. Having bought 55 percent of its gas from Russia before Ukraine was invaded, Germany has now quit Kremlin gas cold turkey – but still has to buy from authoritarian states and Norway, rather than Canada.

Today, the Liberal government looks to be making the same mistake on another crucial resource file—the critical minerals the free world also needs.

Canada has got the minerals

It’s not that the government hasn’t been thinking about the minerals it could sell to its allies.  Natural Resources Canada actually has a strategy document listing the critical minerals and rare earths Canada has in abundance and how they could be a part of new global supply chains. Many of these are minerals Canada’s allies either don’t have at all or have in short supply—including aluminum, copper, nickel, potash, tin, lithium, and zinc. Prime Minister Trudeau has even expressed some willingness to export them.

Canada is among the world’s top five producers for nine of the 31 critical minerals named in the strategy–with the US taking the vast majority of Canadian critical mineral exports at $37.6 billion in 2022. China was in a distant second with just $3.9 billion. Europe meanwhile, takes even less from Canada–and currently remains dependent on authoritarian China to a large extent for many of these minerals.

Beyond the Canadian LNG  other countries require for their present energy needs, these Canadian critical minerals represent what the world—and particularly the free world—needs for the energy of the future. 

Many of these minerals are found in solar panels—a market China currently has cornered.  Almost 90 percent of the world’s solar panels come from China—leaving Canada and the rest of the democratic world dangerously exposed to the geopolitical whims of an authoritarian adversary, as we choose to rely more on solar power. Should China ever attack Taiwan, our ability to respond decisively as the free world could be held hostage to our energy transition needs. That is if free societies don’t bring key elements of it back home.

Canada plays an integral role in this “friendshoring” of the democratic world’s critical mineral supply. European Commission vice-president Margrethe Vestager told German business newspaper Handelsblatt as much in 2022, calling for Europeans to be ready to pay a “national security premium” to buy less from aggressive, authoritarian countries, and more from allies and friends sharing liberal democratic values.

“Canada has almost all the raw materials we need. But the companies there need a long-term perspective from us in order to invest,” she said.

As Vestager suggested, it takes two countries to do the critical mineral trade tango—and European money is clearly needed. 

“We now face a rapidly changing world, with supply chains pushed to breaking point. We can only ensure security and prosperity through decisive action from governments to support the industry to navigate these challenges,” said Bernd Schäfer, the CEO and managing director of EIT RawMaterials in Berlin, in an interview with The Hub in Berlin.  His organization attempts to secure the supply of critical raw minerals for the European industry and is largely funded by the EU.  “We see an enormous need for innovative funding solutions for partnership projects between European and Canadian businesses and mechanisms to identify and fast-track projects of mutual strategic importance,” he said.

Canadian Prime Minister Justin Trudeau and German Chancellor Olaf Scholz speak as they walk along the water front, Tuesday, August 23, 2022 in Stephenville, Newfoundland and Labrador. Adrian Wyld/The Canadian Press.

Yet even if Canada has a strategy on paper, experts say high political buy-in—and a sense of how urgent the problem is—is still missing on the Canadian side. That political buy-in is especially needed to secure European investment.

“It could take Trudeau coming to Europe and specifically saying ‘Hey, I have minerals,’” said Loyle Campbell, a Canadian research fellow in the Center for Climate and Foreign Policy at the German Council on Foreign Relations, in Berlin. “The Trudeau government needs to take political leadership over this and keep driving it forward aggressively.”

Campbell compared the Canadian government’s efforts on critical minerals with its recent pet project to export hydrogen. He said while there has been movement on the hydrogen file, the mineral file leaves much to be desired.

“Hydrogen has gotten quite a lot of support and a lot of attention and a lot of promotion among the [Canadian] diplomatic staff,” he said. “Hydrogen and critical minerals both started from a baseline of zero. There wasn’t much activity going on and we needed to get them both going much faster. So why are there MOUs coming out now on hydrogen, and much less action between the countries that need critical minerals and Canada?”

Campbell points to what he calls Canada’s “special responsibility” to help the rest of the democratic world with its energy and mineral needs—particularly in light of Canada shirking its global responsibilities in other areas, including defence spending that remains well below NATO targets.

“The scope and scale of the energy transition and the energy security crisis really require you to be all on board for more than just your favourite [resource],” he said. “You also need to be realistic about what your allies are asking for. You need to say, ‘What do you need and how can I help?’  rather than saying, ‘This is what we want to promote.’” “Rather than having political favouritism towards hydrogen, really go in on what’s strategically necessary.”

On critical minerals, as well as LNG, Canada is punching well below its potential. As Heather Exner-Pirot recently pointed out in these pages, collapsing energy and resource investment has stymied Canadian economic growth. The responsibility for that lies at the Trudeau government’s feet.

Without a government that will change course on its indifference—or even antipathy—to Canada’s resource sector, these domestic economic mistakes will soon become wider geopolitical ones.