LP_468x60
ontario news watch
on-the-record-468x60-white
and-another-thing-468x60

It's no secret that the way things are headed, there will be at least one, if not two bills that the Senate is going to amend and send back to the House of Commons for a test of wills as to which chamber is going to prevail.  The constitutionality of each of those bills will be in question, both arising from decisions from the Supreme Court of Canada, and both will have passed their court-imposed deadlines for legislative changes.

The first, most famously, is the medical assistance in dying legislation, which has been subject of much consternation on both sides of the aisle Conservatives generally think it needs to be more restrictive, while New Democrats and most Senate Liberals think it needs to go further.  The Liberals in the Commons are being given a free vote on the issue, and you have some voices on both sides of the issue for a variety of different reasons, but given that the Liberal-dominated Justice Committee let the bill pass without substantive amendments that would have made the language much closer to that in the Supreme Court's Carter decision, well, we can largely expect it to pass third reading relatively unscathed.

The other bill in question is one related to a collective bargaining regime for the RCMP, after the Supreme Court ruled in January 2015 that the legislative ban on their forming a union was unconstitutional.  As the previous government was wont to do, it punted the need to come up with legislation until after the election, leaving the Liberals with a short amount of time to draft a bill and get it passed, and even with a four-month extension from the Supreme Court, Parliament still couldn't get it passed in time and that deadline has just expired, while the bill hasn't yet passed third reading, nor has the government requested the Senate to do any kind of pre-study.  That means it'll take even longer to get passed, while RCMP members start a certification drive for a new collective bargaining agent like the Mounted Police Professional Association of Canada.  Oh, and in case you thought that the government got the language in the bill right, well, they loaded it with exclusions to what can be collectively bargained, so things that RCMP members have been screaming about, like proper resources or harassment issues are being left out of the legislative regime that the government is proposing.  And you can bet that there are Senators who are not impressed.

With both bills, part of the government's excuse for not accepting any amendments was that they needed to get the bills passed quickly and amendments would slow the process down too much.  Well, one deadline has passed, the other one is about to, and the sky won't fall when it does.  In fact, there was no real need for the Supreme Court to even give the government a year to come up with a new legislative framework around assisted dying, given that the one the court imposed in the Carter decision could have sufficed perfectly well until Parliament came up with something new (or not we could easily live with a situation like abortion where it was the colleges of physicians and surgeons who stepped into the legislative vacuum with self-regulatory measures).  But too many people felt that the Carter rules were too permissive, and they wanted a stronger framework in place, and the government came up with a regime that pushes back against the Court's decision, possibly in the hopes that in a future court challenge, the courts will say that the new rule will suffice.

The Senate, however, is very keen to flex their newfound independence, and their role in ensuring the constitutionality of legislation, and with the exclusions in the RCMP bill and the narrow restrictions in the assisted dying bill, they sound like they're not going to let them pass without a fight.  And that independence is going to be the real kicker especially for the government that has put the wheels in motion to set up this particular scenario.

To be clear, the Senate has always had institutional independence and could always tell the government to go stuff itself.  There has always been an awareness, however, that without a democratic mandate, their unlimited veto was to be used very sparingly, and for the most part it has been.  But with the Senate Liberals freed from the party's national caucus and given free votes, and with the growing ranks of unaligned senators now outnumbering the Senate Liberal caucus (and both the unaligned and Senate Liberals combined outnumber the Conservative Senate caucus), that throws the legislative agenda for some of these contentious bills up into the air.

The levers by which a government could exercise power in the Senate chamber were always relatively non-existent and relied more on party loyalty and fealty to the prime minister that appointed a senator to get reluctant senators to fall into line.  But those particular pieces of social control largely falling away, and the Senate Liberals in particular are under no compunction to acquiesce to the government's wishes.  If anything, they are more than happy to show just how independent they are when it comes to this disagreement over whether the assisted dying bill in particular is Charter compliant.  And the fact that the government didn't accept any recommendations from the Senate's pre-study of that bill looks like they're not in the mood for compromise.

A showdown is brewing, and it remains to be seen which chamber will back down first the House of Commons, which will howl about the democratic will of the people not being respected by the unelected Senate, no matter the merits of the Senate's amendments, or the Senate, where a number of its denizens will ultimately resign themselves to that "democratic will" argument.  Either way, it looks increasingly like Parliament will sit well into July to see these bills get royal assent.

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.