The intervention of the Canadian Senate in the passage of Bill C- 14 highlights a serious and emerging problem. More than that it highlights the careless inexperience of our new Prime Minister.
Bill C- 14 is the Assisted Dying Legislation mandated by the Supreme Court of Canada decision that found or identifies that the ‘right to die’ is a protected right of the citizen under the Charter of Rights and if government wants to provide limitations or guidelines for those who would be involved in the decisions and execution of such decisions, that they need to do so in a timely fashion.
The House of Commons recently passed a version of the bill which was passed on to the Senate for passage as required in our constitutional bicameral arrangement.
But the Senate to whom the Bill was sent is not the Senate of yesteryears. Then, the Senate collectively and Senators individually understood they were not elected and had no mandate to interfere with the decision of the elected Commons. They were a ‘sober second chamber’ populated for the most part by sober, senior members of the political parties who appointed them, understanding their duties to approve the legislation sent to them for approval by the Commons.
Today it appears we have an interventionist Senate, an activist Senate, a Senate that is populated by many Senators who feel they are ‘independent’ of….. well anyone. Indeed, the former Liberal Senators are independent since their Leader (before he became PM) unceremoniously kicked them out of the Liberal caucus two years ago and declared that henceforth they would be Independents. At the time, he said he wanted the Senate to be nonpartisan. However, his real motivation for doing so seemed clear. He wanted to avoid the Liberal brand having any responsibility for the fallout from the Senate expense claims scandal that was erupting to the embarrassment and shame of many Senators and those responsible for putting them there. Senators receive their appointment to the upper chamber by the sitting Prime Minister of the day – roughly accounting for significant numbers of both Conservative and Liberal Senators in the Chamber at any given time. Most of those individuals had prior political involvement or otherwise enjoyed some degree of political experience and appreciation for the role of an appointed and unelected legislative body.
This then was Mr. Trudeau’s answer to a political problem that he was facing or thought he would have to face and didn’t want to face all dressed up as progressive change.
At the time a few of us predicted what would unfold. Based on his lack of understanding of the constitutional dynamic governing the nation – upon being cut loose and made ‘independent’ some of these capable Senators would indeed decide to think and act independently of the Commons and any direction from their former Leader.
In his grand emancipation, it was reported that he had not consulted with his caucus or his party in making the decision. It is clear Justin Trudeau had not consulted with his Liberal Senators – the decision came as a shock to them. Indeed at least one Senator, in reaction, commented that he was a Liberal and Mr. Trudeau had no right to say otherwise.
At the time, some few of us wondered about his apparent lack of understanding of the constitution and the constitutional arrangement that over time had ensured that the Senate’s role was both muted and compliant of the wishes of the elected House and the government of the day.
Many Canadians are unhappy with the Senate. Most would agree it is a seriously flawed institution – an unelected, unaccountable chamber of politicians who are appointed to serve without term limits or recall to age 75. The purpose of the Senate historically was to provide regional representation and balance for the elected Commons, but those origins were rooted in a nascent democracy when most ‘commoners’ were not trusted with the franchise (women for example). Times have changed. It is time we acted like a grown uo democracy.
Many would like the Senate abolished or otherwise reformed. Unfortunately it is enshrined in the constitution and any change to its role or even existence would require a constitutional amendment. And it is not surprising that our ten provinces and federal government cannot agree on what a reformed (perhaps elected) Senate would look like or do.
But the situation that endured over the years, not without the occasional bump, made for a de facto working arrangement that was not too offensive to even those who seek change. This was precisely because that Senate was not activist, interventionist or Independent. Senators understood that notwithstanding their ‘constitutional ‘ entrenchment, they were not a democratically mandated institution and their talents best lay in giving a sober second look to legislation and encourage useful amendments to the government of the day.
The issue is not whether the Senate is right in any given instance. It is whether this country – a democracy – will be governed by an unelected legislature. The Commons may be wrong, but they have a mandate to be wrong and can be held accountable at the next election.
It won’t end with Bill C-14. An independent Senate indeed will be an undemocratic institution and will likely lead at some point to constitutional crisis. Our inexperienced and impulsive Prime Minister opened a Pandora’s box. Thank you Mr. Trudeau.