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A Senate’s architectural element

“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, p. 67

“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, p. 77

“... 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, pp. 77–78

Making Canada's Laws
Legislative basics
The legislative process “How does a bill become a law?”
Passage trough a House
Taking the legislative initiative
Amending legislation
Defeating bills
Delaying bills
Constitutional amendments

“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.

Legislative basics

The lawmaking process starts with a bill — a proposal to create a new law, or to 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.

A Senator in the Senate Chamber revises a bill  

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.

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The legislative process
“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 given by the Governor General (the bill is made law on the advice and with the consent of both houses)

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Passage through a house:

• First reading (the bill proposing a law is received and circulated)

• Second reading (the principle of the bill is debated:
does the bill represent good policy?)

• Committee stage:

– members of the public appear as witnesses to comment

– committee members study the bill in detail, clause-by-clause

– 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 re-sent to the other house or is set aside for Royal Assent

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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:

In late November 2005, Parliament passed Senator Jean-Robert Gauthier's Bill S-3's, An Act to amend the Official Languages Act, into law. Bill S-3’s amendments to the Official Languages Act have given it “teeth” by allowing Canadians to take the federal government to court if it does not live up to its obligation to protect and promote both French and English minorities in Canada. The government can now be held to account for its progress, or lack of progress, in fulfilling our national objective of bilingualism.

The government can introduce its bills in the Senate and frequently takes advantage of this option. 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.

A Senator in the Senate Chamber revises a bill

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 usually initiated in the Senate. In the 19th century, private bills were popular to incorporate and regulate the railroad companies and religious organizations that opened the West. For the greater part of the twentieth 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.

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Amending legislation

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.

From April 2003 to March 2009, a period that covers seven sessions of Parliament, the Senate recommended amendments to 37 of the 300 bills that made it to the committee stage of consideration. That means that the Senate proposed amendments on 12 per cent of the bills it studied.

On June 22, 2006, Bill C-2 arrived in the Senate. The first Act of Parliament of a recently-elected government, it was a massive and complex bill aimed at improving government accountability. The Senate's Committee on Legal and Constitutional Affairs examined the bill. It held over 100 hours of meetings, hearing 168 witnesses. Based on witnesses' testimony, the committee proposed an unprecedented 156 amendments to the bill. After debating the bill for 14 more hours and proposing 106 additional amendments, senators finally passed it with a total of 158 changes. It had undergone what may have been the most comprehensive legislative review in Senate history. After lengthy back-and-forth between the Senate and the House of Commons, the bill finally passed with roughly 90 Senate amendments.

Even when the Commons takes the step of refusing 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.

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Defeating bills

Canada's Constitution gives both houses 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, when the bill was obviously outside the constitutional authority of Parliament, or under other extraordinary circumstances.

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 1998, after extensive hearings and consultation with a broad range of witnesses, the Legal and Constitutional Affairs Committee opposed the enactment of Bill C-220. The bill, although not a government bill, which was passed by the House of Commons, would have provided the government with the power to censor publications written by persons convicted of crimes where the publication in question was based substantially on the crime for which the conviction was entered. Senators on the Committee believed that the bill was a direct violation of section 2 of the Canadian Charter of Rights and Freedoms which guarantees freedom of expression. The Senate agreed with the Committee's recommendation, and the bill was rejected.

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Delaying bills

The Senate can also delay a bill, or decide not to act on it. Without being formally rejected, a delayed bill dies at the end of the session.

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.

In other cases, the Senate can delay a bill in order to give it more careful scrutiny that it received in the House of Commons and to draw greater public attention to the issue at hand.

Bill C-10 was one such case. A large and complex tax bill, it had had a quick examination in the House before arriving in the Senate in December 2007. There had been no expectation of controversy, but in March 2008 Senators responded to urgent calls from the Canadian film industry. The bill contained a clause that, they felt, would amount to censorship by allowing the Minister of Heritage to arbitrarily deny finished film productions a crucial tax credit. Other groups clamoured to address the committee about this or other concerns. The committee continued its study, and the bill died when Parliament was dissolved in September 2008.

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Constitutional amendments

Parliament can make constitutional amendments on its own by passing a bill, but only if the amendments 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.

Other 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 favours the provinces. The amendment may be made without Senate approval if the required number of 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 sometimes described as its suspensive veto.

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