Will Trudeau's experiment with Senate 'independence' outlast the election?

Legislative changes that would have made it harder for a future prime minister to reverse Senate reforms have fallen through — raising the question of how much longer today's more independent, non-partisan chamber might last.

The Trudeau government was planning to introduce an amendment to the Parliament of Canada Act — the law that spells out the powers and privileges of MPs and senators — to better reflect the new reality in the Upper House, where 59 of the 105 senators sit as independents unaffiliated with any political party.

That amendment never made it to the Senate for consideration. Conservative Party Leader Andrew Scheer has said that if his party wins the federal election in October, he'd be inclined to resume filling the benches of the Red Chamber with partisan appointments.

• Parliament has risen for what could be the last time before the October election

• Trudeau to make it harder for future PM to reverse Senate reforms

Some say a return to partisan appointments would negate the Senate's current reason for existing. "We don't need a sober-second-thought chamber which would be a duplication or a replication of (the House of Commons), where the elected members of Parliament represent the citizens," said Sen. Raymonde Saint-Germain of Quebec, deputy facilitator of the Independent Senators Group.

"We are not here to act on a partisan basis, and this is why I believe this reform is sound and this is why I am here."

A more proactive Senate

Twenty-nine of the 88 government bills passed by Parliament this session made it to the finish line with at least one amendment that originated in the Senate. The Red Chamber has taken on a far more robust role in the legislative process since the Trudeau government launched a new appointment system.

In 2014, before he became prime minister, Justin Trudeau expelled every single Liberal member of the Upper House from the party caucus — a gesture aimed at making the Senate less partisan.

After coming to power, Prime Minister Trudeau introduced a system to appoint independent senators named by a nonpartisan review panel.

Not everyone thinks the change was an improvement.

"The situation that we have right now in the Senate is really not that different from what we had before," said Conservative Sen. Denise Batters of Saskatchewan. 

"I personally have termed it Trudeau's 'fake independent Senate'."

Liberals in disguise?

For proof, Batters points to Bill C-69, the controversial bill overhauling the environmental assessment process which Conservatives have described as an attack on resource industries. The Senate made an unprecedented 188 amendments to the legislation after months of study and a cross-country committee tour.

In the end, the vast majority of Conservative amendments were not accepted by the House, Batters said.

She also cited the debate on Bill C-48, which bans oil tankers from a portion of the B.C. coast. It narrowly passed by three votes in the Senate after every Conservative voted against it.

Batters and her Conservative colleague Sen. Don Plett of Manitoba accuse Trudeau of appointing Liberals masked as Independents.

"When it walks like a duck and talks like a duck, it's likely a duck," Plett said.

"I don't think the Senate is broken. I think we need to just accept that we are all political people, and we need to continue with that."

Even those in the Senate who still identify as Liberals say they have concerns about the role of Independents in passing legislation.

"They don't seem to function wholly as a group, so sometimes that can slow the process down a little bit," said Independent Liberal Sen. Lillian Dyck of Saskatchewan.

"I think that sometimes can be a bit of a hindrance."

Independent Liberals worried about numbers

Dyck is one of nine independent Liberal senators; she said she's concerned about that number dropping down any further. 

"Once we get to below nine, we cease to function as a group," Dyck said. "I would, of course, like to see that group continue on and so we're hoping that somehow maybe people will join us."

Meanwhile, the face of 'sober second thought' is changing. Nearly half of all senators are now female and 12 are Indigenous.

"We're talking about an institution that was completely designed for white, privileged men and that's changing," said Independent Sen. Marilou McPhedran of Manitoba.

"Overall, do I think the Independents have brought positive changes to the Senate? Yes. Overall, do I think we've got more to learn? Can we become more effective? Yes.

"Do I think that this is a better system for the Senate than what existed for 151 plus years? I'm inclined to say yes, and I'm inclined to say yes because I think we're getting the work done of making laws, and I think ... it's a much more open process."

The process may be different, but other Independents say there's still a lot of room to improve. 

It's still a partisan Senate

"We haven't come anywhere close to finishing the reforms that need to be done, because the Senate still largely mirrors the state of political affairs in the House of Commons," said Independent Sen Murray Sinclair of Manitoba.

"As a result, it still follows a very partisan pattern and I think that's the element of the operation of the Senate that I think we most need to sort out. Our plan is to start looking (at) that more seriously now into the future."

Sen. Peter Harder, the federal Liberal government's representative in the Senate, agrees there's more work to be done to make the Upper House less partisan — but he sees the reforms implemented to date as a start.

"This Parliament has achieved great success for the Senate, in my view," Harder said.

"It has displayed a Senate that is less partisan, more independent and has achieved what the government wishes in terms of legislation, although there have been significant amendments made on a number of pieces of legislation and the government has accepted those amendments."

Harder said he would like to see the Senate introduce a business or programming committee that would offer a more transparent way of predicting when legislation would be debated and sent back to the Commons.

And although it takes longer for the Senate to come to a conclusion now, Harder said that he has never had to use time allocation for any government bill.

'Growing pains'

Harder said he received a good deal of cooperation from all senators to ensure that legislation was reviewed, amended where necessary or possible, and passed.

"We're making progress," he said.

"This is the first Parliament that has had, as its objective, less partisan, more independent behaviour in the Senate itself, while recognizing that we are a complementary body to the elected House of Commons and therefore we need to defer to the political chamber."

Not only is the Senate now more independent as a body, it's also physically separate from the Commons. The Senate chamber in Ottawa is a ten-minute walk down the street from West Block, where MPs have been holding question period and voting on legislation while Centre Block is closed for a decade-long renovation.

"We have a lot less human contact, so informal communications are not being done as well as they used to be when we were in the same building for 100 years," Independent Liberal Sen. Dennis Dawson said. "So it is a flaw.

"That being said, the independence of senators is to everyone's advantage in the long-term. Growing pains, obviously, at this time, but in the long term, I think it's in everybody's interest."