With Bill C-14 on medical assistance in dying now having passed the Senate in a partially amended form, and after weeks of clutched pearls and tut-tutting columns about the Senate supposedly overstepping their bounds, it bears taking a look at where this "newly independent" chamber is headed, and the direction that some of its members want to take it in.
Even within the Senate during the debates on the bill, there was a great deal of diversity of opinion when it comes to how each of them saw their role as senators. Some felt that they should always defer to the elected House, no matter what, while others hammered away at the role of the Senate when it comes to protecting the rights of minorities and in ensuring the constitutionality of bills. The Leader of the Government in the Senate err, "government representative," Peter Harder, stated that the Senate's role is "to provoke, to inquire, to make recommendations for improvement, to urge the government to consider our reflections." You will forgive me if I take his assessment with more than a grain of salt, considering that he has been a senator for all of about six minutes as he begins offering lectures.
In his Third Reading speech, Senate Liberal Serge Joyal gave a blistering speech about the times when the House of Commons used their elected majority to strip Canadians of their rights, and when senators objected to those very practices. With this particular debate, there was a great deal said about how the government's version of C-14 would turn those suffering intolerably from non-terminal conditions into a minority stripped of the right to assisted dying that the Supreme Court of Canada had already granted to them. Joyal demonstrated clearly why there are times when the Senate should not defer to the Commons, and outlined why C-14 should have been one of those cases, but not everyone was moved, preferring that the Supreme Court take the heat rather than parliamentarians in either chamber.
While other bills like Bill C-7 on RCMP unionization also face being sent back to the Commons in an amended form, and this new sense of independence that the chamber seems to be feeling, what with there being no government caucus, the Liberals having been cast adrift, and the Conservatives suddenly being moved to having more free votes, there are questions about how the chamber will handle itself going forward. The constant cries of alarm over the past two weeks was that C-14 portended a Senate that no longer felt itself to be bound to a sense of deference (absent of the context of a bill that was contentious and had some major constitutional issues), contrasted with voices that the Senate was actually doing its job, for better or worse.
Within the Senate, the newly minted Deputy Leader of the Government in the Senate err, "deputy government representative" Diane Bellemare has been planning on moving a motion that would lay out guidelines as to how senators should behave "more responsibly" when it comes to considering bills before it.
Bellemare believes there are only three criteria that senators should consider in their deliberations whether the legislation is constitutional, whether it falls under federal jurisdiction, and whether it contains any obvious drafting errors. She makes the salient point that bills should not be rejected for personal or partisan reasons, but her blanket declaration that the Senate must always bow the Commons is wrong-headed and goes against the whole reason why the Senate of Canada was constructed in the way that it was. Bellemare and some other senators insist that they have no legitimacy to do anything more than review, which is one of those arguments that makes my head explode because it's built on a false premise that direct election is the only true legitimacy under our system.
The Senate is legitimate in our parliamentary democracy, not only granted that legitimacy by the constitution itself, but also because of the fundamental principles of Responsible Government that are the bedrock of our system of government. Governments that have the confidence of the Commons make the appointments that fill its ranks and that does confer legitimacy to those appointees. To insist otherwise is to be wilfully ignorant. (Whether they are of a good quality, however, is a debate for another day).
The Senate has a variety of roles that extend beyond simple review of bills, and to reduce it to that, especially by sitting senators, is disturbing and short sighted. The Senate was given its powers of amendment and unlimited veto because elected officials don't always get it right particularly when they are cravenly campaigning for re-election. The Senate is that safety valve for when an elected majority is on the wrong path, and sometimes they are. It's also why they have institutional independence so that they can speak truth to power and not face the consequences of removal (and conversely, have enough security that they are unlikely to be bought off by the government of the day). This is all by design, and it signals that there is an importance to the work that necessarily goes beyond simple review, and that sometimes they need to say no to the Commons.
What both Harder's statement and Bellemare's motion are saying to me is that the government that they represent is trying to draw some very neat lines around the Senate as they are seeking to reform it from within using non-constitutional means. If Bellemare's motion passes and the Senate effectively neuters itself, does that actually improve our democracy? Hardly. Our system allows for very powerful prime ministers to wield a lot of power, and this has become an even bigger problem as party leaders have amassed greater power for themselves as the system has evolved. That also means we need strong countervailing forces to push back against them, and the Senate is such a force. We should let it do its job, not tie its hands.
