Phew, that was close. Or: darn, that was close. That sums up the reaction to the Senate’s near defeat last week of two important, if controversial government bills: C-69, establishing a new regulatory approval process for major infrastructure projects, and C-48, banning oil tankers from the northern coast of British Columbia.That the Senate did not, in the end, defeat the bills, passing them by majorities of, respectively, 57-37 and 49-46, was treated either as a calamity, by those opposed to them, or a triumph, by those in favour. More typically, it was greeted with relief. The appointed Senate had declined to overturn a vote of the democratically elected House of Commons. A constitutional crisis averted, once again.As a Canadian Press story notes, the last-minute reprieves — another, C-83, abolishing solitary confinement in federal prisons, passed only after Conservative senators, uncharacteristically siding with the government, voted to reject amendments to the bill — were the closest the Senate has come to a showdown with the Commons since Justin Trudeau’s “non-partisan, merit-based” appointment process was introduced.It has not been unduly obstructionist
“Had the bills gone down,” CP reports, it “would have handed ammunition to critics of Trudeau’s Senate reforms.” But so long as the Senate does not vote to defeat a bill outright, it would seem, all is well. Constitutional scholar Emmett Macfarlane, in a recent commentary, finds that, “contrary to the concerns expressed by some critics,” cough, “the Senate has successfully navigated the changes to its composition.”“Although there are clear signs that a more independent Senate has made the legislative process more challenging and complex from the government’s perspective,” he writes, “it has not been unduly obstructionist.”Not “unduly” obstructionist? OK. But the Senate doesn’t have to actually defeat a bill to obstruct or deflect the will of the people’s elected representatives. The mere threat, for starters, can deter governments from introducing legislation, or ensure it is its drafted in such a way as to avoid a confrontation.How many bills fall into either category we will never know, but it would be hard to imagine there weren’t some. And so long as there are any then the drafting of our laws is not solely the province of the people we elect, but is subject to the approval of an appointed claque, unelected and unaccountable, overpaid and underworked: government, not with the consent of the governed, but of the expensive.The Senate has also taken to amending legislation much more often than before: of 88 government bills passed by the 42nd Parliament, 33 were amended by the Senate — almost four times the rate of recent Parliaments. Perhaps most of those amendments were friendly, enthusiastically adopted by a grateful Commons. But a good number were probably accepted only under duress. At least those bills passed, in the end. Not so the bills that, having passed the Commons, languish for months or even years in the Senate, eventually to expire with the end of each parliamentary session. Though no government bills met such a fate this time, more than 20 private member’s bills “died on the order paper,” as the phrase has it — killed, that is, by inaction that is as often the product of malice aforethought as mere sloth.This is the notorious “pocket veto,” and if you think it is not deliberate have a word with Romeo Saganash and Rona Ambrose. Saganash is the NDP MP who succeeded, against the odds, in getting his private member’s bill, C-262, incorporating the 2007 United Nations Declaration on the Rights of Indigenous Peoples into Canadian law, passed by the Commons, on May 30, 2018. The vote was 206-79.Ambrose, the former Conservative cabinet minister and interim leader, was the sponsor of Bill C-337, requiring that federally appointed judges receive mandatory training in sexual assault law. It passed the Commons by a unanimous vote on May 7, 2017 — more than two years ago. Yet both bills are now dead, the victims, as has been widely reported, of some crafty procedural manoeuvres, not in the House of Commons but the Senate.Beautiful! The senators opposed to these bills did not even have to muster a majority of their fellow appointees to overturn a vote of the Commons — or even expose their names to public view, not that anything would happen to them if they did. The Senate didn’t defeat the bills outright? They didn’t have to! If that is not a constitutional crisis, it is only because in this country we prefer that assaults on democracy take place in private.In this country we prefer that assaults on democracy take place in private
These were not trivial or flippant pieces of legislation. Whether or not one thinks either were advisable, they were drafted to address some of the most serious concerns of our society. And they had the support, not of narrow majorities of the House, but supermajorities, even unanimity.Every member of the House of Commons had first to secure his or her party’s nomination, often in competitive races, then win election in his or her riding. The average MP was the choice of more than 25,000 citizens; collectively, they received some 8.5 million votes. To pass the House, then, a bill must have the support of MPs elected with the support of at least 4.3 million voters.But what are the wishes and desires of those millions of Canadians compared to those of 105 senators, or however many of them were required to quietly suffocate these bills. How many people elected them? In most cases one: the prime minister of the day. Or in the case of those appointed on the advice of Trudeau’s Senate-selection panels, five — though he appoints all of them.No doubt these latter appointees are of a better quality than the bagmen and hangers-on of old. But are they of such exceptional wisdom, such exalted character, that each should be entitled to the same voice as 80,000 of their fellow citizens?