By Richard Forbes.
Featured Image via Neil Robertson.
As Democratic Institutions Maryam Monsef took her seat in the House of Commons, having just risen in defense of the government, the unexpected happened:
Silence fell over the ranks.
The minister sat without the Liberal caucus cheering, clapping, jeering, banging, dancing, hallooing, or any of the other juvenile verbs we’ve come to expect from the honoured members during Question Period on a predictably partisan basis. The change to procedure this Thursday – the decision not to clap, that is – was reportedly called for and made by regular members in caucus. Granted, it’s a small change, a symbolic challenge to the partisan order in the House of Commons, but one that reflects the “renewed” democracy the Liberals campaigned on last fall. But this was far from the only sign of a changing parliament observers witnessed this week.
Down the hall, the government’s assisted dying legislation, Bill C-14, was being chastised on its second reading from senators. Although the criminalisation of physician-assisted suicide is set to expire on Monday, it’s now clear the government’s legislation will not be in place by then as had been hoped. The Senate voted Friday to send the bill to committee, review it and propose amendments. But with that having been said, although the deadline was not meant, the Senate, the first of a new “independent” Senate as proposed by Trudeau, has shown a willingness to discuss, compromise and collaborate.
That rigor for freewheeling synergy began Tuesday with a Senate motion to hold a committee of the whole, a couple of two hour sessions, inviting the Justice and Health Minister to answer questions and defend the bill in the Senate. Those sessions on Wednesday offered a rare televised window into the workings of the Senate and proved heated but thoughtful. It was a near unprecedented move to hold such a series of back to back committees before the bill’s second reading in the Red Chamber. But unprecedented as it may be, if this was the Senate’s opportunity to demonstrate to Canadians that the Senate still possesses a purpose and an important role for Canadian democracy, many senators made the most of that opportunity.
Questions from senators, although often repeating one another, were on the whole of it, passionate, researched and pertinent. The lion’s share of the questions and criticism was focused at C-14’s requirement that the death of those applying for assisted suicide ought to be “reasonably foreseeable.” While there was quite a lot quibbling over whether right-to-die pioneer Kay Carter (plaintiff in Carter v Canada) would have met this condition for a “reasonably foreseeable” death solely due to her advanced age, this debate was if anything just a tangent, a distraction from the senators’ broader point that the Supreme Court had not regarded terminality as a reasonable condition for assisted suicide.
In denying assisted suicide to those whose deaths are not “reasonably foreseeable,” but their conditions, still grievous and irreversible, many senators passionately advanced the view that C-14 was denying these individuals their constitutional rights and was, in effect, encouraging them to take matters in their own hands: self-mutilating to worsen their conditions to the point of qualifying for assisted suicide, committing suicide unnecessarily before a decline in their capacity, spending their final months of life in court to fight for their right to die – the same kind of tragic scenarios and cruel bureaucracy, the Supreme Court lamented and ultimately rejected in painful detail in Carter v Canada.
The first round of questions, making that very argument, came from opposite sides of the Red Chamber: Senators Claude Carignan and James Cowan, the former, the current leader of the Senate Conservatives, the latter, an ex-leader of the opposition for the Senate Liberals. With both statesmen voicing similar opinions, articulate and candid, the talks in the Senate started off on the right foot – and in doing so, they demonstrated the bipartisanship and the quality of discussion and scrutiny the Senate is capable of when vetting important, landmark legislation such as C-14 where a rushed or botched decision – one wrong move – can be the object of someone’s unnecessary pain, suffering or death.
Negative as it was, the tone of the Senate during their questioning of the ministers was not unfamiliar to those who followed the Senate’s harsh words for C-14 from their earlier pre-study – their resistance to the bill was as strong then as it is now – the disapproval is not a new development. While the government and the ministers involved would have preferred the bill to become law before the Supreme Court’s deadline on Monday, with the Senate adjourning until then, the deadline will not be met. The Senate will likely propose a number of major amendments to expand the eligibility to assisted suicide – amendments that will need to be approved by the House of Commons – which, in addition to delaying legislation from being enacted sooner, will force the government to make changes to its assisted dying legislation it hadn’t previously been willing to make.
This experience, good or bad, however is a learning curve for the Liberals and the Senate alike as they charter a new normal, a new way to conduct parliamentary business with an independent Senate. Given key legislation now stands a greater chance of being vetoed or delayed in the Red Chamber, the government over the next few years will have to innovate and direct its focus towards planning an achievable timeline. The hard lessons learned with the C-14 debate will eventually come to inform and influence the Liberals’ parliamentary strategy moving forward as they set their sights on a number of big ticket items. As old ways of doing things in Ottawa become ineffectual, new paths to assent will no doubt come to fruition. That’s strategy. Nay, that’s politics.
The election reform debate is one of the Liberals’ main planks most vulnerable to a changing Senate and it’s one area that the government of the day has the most to learn from the current C-14 episode. Conservatives have already signaled their intention to use their Senate majority to squash changes to the first-past-the-post system, although they may not possess a Senate majority by the time the legislation is introduced in the Senate. Regardless however, as the number of independent senators grows and the opportunity the government’s representative has to motion for time allocation limits shrinks, the prospect of a Senate election reform debate becomes far riskier for the Liberals.
Democratic reform, of course, took a surprising turn this week with Maryam Monsef signaling the government’s support for an NDP motion (via Nathan Cullen) to strike an all-party committee on election reform where the party membership is based on proportional representation, rather than by seat count – abandoning typical convention.
This move, which cedes the Liberals’ majority control over the committee, has been widely regarded (with an exception of an exceedingly outraged Tory caucus) as a positive gesture of good faith and it’s quickly revived the chances of the government establishing an all-party committee (a campaign promise in and of itself) before the summer recess. Although the government may have regarded that majority control as security against the opposition ganging up on them, ceding that majority – while uncharacteristically optimistic of parliament – has resurrected the government’s hopes of replacing Canada’s first-past-the-post system before the next general election as promised.
The Prime Minister’s remarks on the compromise made it clear the decision was made to honour the government’s commitment to a more cooperative, open and collaborative parliament – the vision it had pitched to Canadians during the 2015 federal election. “We heard the opposition’s concerns that we were perhaps behaving in a way that was resembling more the previous government than the kind of approach and tone that we promised throughout the electoral campaign,” notes Trudeau. Adding, “We’re happy to demonstrate that absolutely we’re looking for ways to better work with our colleagues in the House, […] and I look forward to working towards reforming our electoral system with the input of as many Canadians, including opposition parties, as possible.”
But like assisted dying, the government faces a steep timeline to achieve election reform, even with this encouraging development. The NDP motion would see the all-party committee’s final report completed in December; meanwhile the Liberals promised to introduce their proposed changes to parliament 18 months after forming government.
Media reports have often cited that due date as April 19 2017 but there’s some room for interpretation: if you consider the swearing-in ceremony, not the election, as the “forming” of the government (which it technically is), the Liberals have another three weeks (May 3) to introduce their election reform legislation. But either way, no matter if the Liberals introduce the changes in April or May, the timeline for passing the legislation before the summer recess, only 35-50 sitting days, is as tight as (or tighter than) C-14’s nightmare of a deadline. And without passing the legislation before the summer recess, the government risks implementation issues with Elections Canada and even more heated controversy during the fall sittings.
One path the Liberals could take could be to break from tradition and introduce their election reform legislation first in the Senate, as opposed to the House. There are some downsides to this plan, namely “Bill S-3” (as it’d be called) would risk becoming stillborn in the Senate. Moreover, the Senate, not the House of Commons, would have the final say on any amendments made in the House. And, if there’s not enough time to pass the legislation in both the Senate and the House of Commons, given the greater attention the House receives, the Prime Minister might prefer the legislation is passed in the House before the summer recess rather than have the matter return in the fall.
But its advantages make this plan very attractive: it would get the Senate stage, the more vulnerable stage for the legislation, done and over with first. It would also cool the rhetoric surrounding election reform, as the Senate reminds others, as they typically do regarding legislation introduced first in the Senate, that election reform is first and foremost a technical, not political issue. The eyes of commentators would no doubt fog over, and the heated diatribes subside, as the Senate began its behemoth of a panel discussing the ins and outs of the Sainte-Laguë method, Robson Rotations, Duverger’s law, Droop Quotas, Later-No-Harm, Gibbard–Satterthwaite theorem, Monotonicity and… zzzzz….zzzzz… and so on and so forth. Governments have in the past turned to the Senate as a pathway for its legislation when the House’s schedule is busy – and the Liberals, elected on an ambitious agenda, may find themselves stuck in a similar situation.
If the Bill C-14 saga is any indication, however, we can expect the parliamentary process to include longer, more frequent exchanges between the House of Commons and the Senate. The committees of the whole this week, a rare approach, could become more commonplace as the government hopes to shepherd its legislation through an independent Senate. There is also some speculation on Parliament Hill that the practice of “conferences” between the House of Commons and the Senate might be revived (a tradition that hasn’t been made use of since 1947) with the hopes of resolving differences over C-14 and finding some mutual agreement over possible amendments. Indeed, at the risk of sounding painfully credulous: what we could be witnessing, dare I say it, is a Senate, freed from the talons of party policy, reviving parliamentary tradition and the need for communication and dialogue.
This week was a much better week for the government, even if its deadline on Bill C-14 will be missed. By stepping back from the kind of heavy-handiness that helped contribute to “#elbowgate,” the Liberals have revitalized their hopes of democratic reform and demonstrated to Canada that their efforts to reform the Senate are not in vain. Although it wasn’t below the hypocrisy of many a columnist to knock this week’s events as a “climbdown,” a “white flag,” and “chinks in the armour-” the truth is these signs of a changing parliament are a mark of leadership rather than a sign of weakness. The Liberals’ trademark “sunny ways”, naive as they may seem, have gone a lot further for the government towards advancing its agenda than the cynicism and machinations its sought to cast aside. The power of a democrat transcends that of the autocrat in more ways than one.
Richard Forbes studied Political Science and Philosophy at the University of Waterloo. Winner of the Peter Woolstencroft Prize in Canadian Politics (2015).
Follow him on Twitter at @richardjforbes.