Over the past few months, MPs on the Procedure and House Affairs committee have been examining the possibility of creating a second debating chamber something that apparently our elected representatives have a romance with after seeing them created in Canberra and Westminster.  Liberal MP Frank Baylis had the creation of such a chamber as part of his comprehensive attempt at rewriting the Standing Orders (an attempt thwarted by the fact that he forgot that private members' business is debated first thing on Monday mornings rather than at the end of the day), but reading through the PROC report, there are at least a few questions that MPs need to ask themselves before they set down this course.

Canadian legislators being enamoured with foreign legislatures is nothing new.  In the 1970s, during the heyday of constitutional reform talks, there was a great love affair with the German Bundesrat, and there were attempts to try and propose a similar means of reforming our Senate to match it, but those fell apart when the Supreme Court of Canada poured cold water on Pierre Trudeau's attempt at reform.  This eventually led to the patriation of the Constitution in 1982 but the Senate remained untouched.  In the current parliament, we saw Bardish Chagger try to import the programming motions from Westminster but was shot down in a procedural meltdown and filibuster, while our own Leader of the Government in the Senate err, "government representative," Senator Peter Harder, is enamoured with the House of Lords' Salisbury Convention so much so that he tries to claim that it exists here when it doesn't.  As well, a number of "progressive" political figures look longingly to the experimental consensus-based legislatures in the Northwest Territories and Nunavut, without understanding that it is neither scalable, nor workable outside of its particular cultural context.

Australia was the first to adopt a second debating chamber, dubbed the Federation Chamber, in 1994, under the excuse that the increased volume and size of government legislation was preventing adequate time for study and debate, and saw an increase in "guillotine" motions, but rather than add more sitting days or hours in the sitting day, the parallel chamber was seen as a compromise.  Its debates are largely bills that the House of Representatives refers to it, usually at second reading or "consideration-in-detail" stages, as well as private members' business, committee reports and delegation business.  It only debates issues but does not vote on them, and while there was a reduction in "guillotine" motions after its introduction, that was also likely attributable to changes to the parliamentary calendar and other practices around introducing bills.

The UK created their parallel chamber, known as Westminster Hall, in 2000 on an experimental basis, and it was made permanent in 2003.  Unlike Australia, they don't debate government bills, but have a system whereby they debate petitions and e-petitions on Mondays, have debate slots on Tuesdays and Wednesdays for topics of MPs' choosing that is determined by lottery, and backbencher businesses essentially private members' business on Thursdays.  When you consider that the Westminster parliament has 650 MPs, there is far less ability for them to do private members' business or to debate topics of their own choosing in the main chamber, which means that Westminster Hall makes more sense for them.

But what excuse did the Canadian committee see as the pressing need for the creation of such a chamber here?  That there would be more time for "meaningful debate" on bills, that it would allow for more private members' business to be debated, that they could have more time for members' statements, and that it would help be a "proving ground" for MPs to learn the rules and procedures.  The problem, of course, is that all of these things are not problems that a parallel chamber would solve, but in some cases, would actually exacerbate.

To wit, the general dissatisfaction with the state of debate that MPs report feeling is their own bloody fault.  MPs don't debate legislation they read twenty minute prepared scripts into the record.  I wouldn't find that fulfilling either, but guess who has the power to change that?  You guessed it the MPs themselves do.  We need a rewrite of the rules of debate in the Chamber, doing away with scripts, speaking lists, and the twenty-minute time limits that they feel compelled to fill, and have a more fluid system like they have in Westminster, if we're going to look to them for ideas of how to improve our Parliament.  As for more time for members' statements, I might be more sympathetic if MPs didn't use the time to read attack lines at one another.

And while I understand that there is a desire for more private members' business among MPs, we also have to remember that this is not really their job it's a nice add-on, but it's been overinflated and increasingly abused, and we have a growing number of bills being floated that are unconstitutional, illegitimate by virtue of the fact that they would either require the government to expend money or intrude into areas of provincial jurisdiction, or they are symbolic and hollow, and if they're not useless and waste everyone's time, then they have the added potential of creating problems (like the Reform Act did).  Add to that, there is only so much capacity for Parliament as a whole to deal with them, particularly in the Senate (especially after the lessons learned by recent events).  Even the report recognized that fact:

"An important practical consideration of using a House of Commons' parallel chamber to increase the number of private members' bills that are considered each Parliament is the added legislative pressure this increase would have on the Senate's work."

And yet the committee report says that the positives of the chamber outweigh the downsides, never mind that the case for the chamber is not actually being made, and they recommended that the next parliament spend the first six months coming up with a pilot program to test it out here.  It won't solve any problems, it won't encourage MPs to do their actual jobs which is holding the government to account and studying the Estimates and it will create an expectation for greater make-work speechifying, which we're already terrible at.  Hopefully the Procedure and House Affairs of the 43^rdParliament will realize that this is all hokum and put this plan where it belongs on a shelf, never to be dusted off again.

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At this point, three private members' bills that the government was counting on are looking like they'll die on the Order Paper.  Despite my predictions that the Senate would wind up sitting into July, bills have been moving through both Chambers at such a clip that both aim to rise by the end of this week, but with one proviso that those three bills are going to die.  Of course, there is nothing to say that the Senate has to rise right away, and they could have sat for as long as it took for them to get to those three bills after all of the government bills passed, but right now, the direction from the Leader of the Government in the Senate err, "government representative," Senator Peter Harder, is that he is willing to let them die, and in a stunning bit of news, he announced that the government planned to campaign on making Bill C-262, which would ensure that Canadian laws comply with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into law.

First of all, let it sink in for a moment that Harder, who insists that he is "non-aligned" and independent of the government (while similarly engaging in the half-pregnant fiction that he is also their representative), is announcing campaign promises on the floor of the Senate.  Had Harder been a member of Cabinet as his position is supposed to be, this would not be an issue, but they continue to operate under the polite fictions that they are.  Nevertheless, in his haste to ensure that Senators can leave Ottawa and head home for the summer, he has given up on trying to do any horse-trading to get these bills passed, and it sounds like some of the senators championing these bills among the Independent Senators Group weren't able to convince their fellows to stay around either.

Nevertheless, I'm not sure that we should mourn any of these three bills, because they were all problematic.  Bill S-228 was originally a bill from Senator Nancy Green Raine to ban advertising junk food to children, but it was overbroad and had lawyers across the country raising red flags.  The government nevertheless decided it was something they could support, and amended it heavily in the House of Commons to make it palatable, but it has languished in the Senate since September as they consider those amendments.  Bill C-262 is the aforementioned UNDRIP bill, but it was also problematic in its drafting none of the language was consistent with actually implementing international laws or treaties into Canadian statute, and was mostly a symbolic bill that would simply say the government would ensure that its laws were consistent, but did little else.  The final bill was C-337, which was Rona Ambrose's bill to ensure that future judges had sexual assault law training.

Of the three bills, Ambrose's was most problematic, and was very likely unconstitutional because it impacted on judicial independence.  It got no proper review in the House of Commons no critical debate, it was sent to the Status of Women committee instead of the Justice committee, which didn't have the proper competence to raise any issues with it, and it passed unanimously on sentiment alone.  It wasn't until it got to the Senate that its problems were spelled out constitutionality aside, it put lawyers in an awkward position of trying to get their training without alerting their firms that they were applying to be a judge, if training was available in their region at all; it was overbroad in its reach because the proportion of federally-appointed judges who deal with sexual assault law to begin with is fairly low; and it also put impartiality of future decisions in question because it mandated that the training needed to be done by survivors groups, who are generally called upon as expert witnesses, meaning that it could taint future trials.  It was not a good bill.

Once C-262 and C-337 were in the Senate, they became subject to the rules of the Senate no matter that the government supported them, as private members' business, they are not priority, and given that the government had an ambitious agenda of legislation going through the relevant Senate committees, these bills were not going to get time for study anytime soon.  There are no procedural mechanisms to prioritize them outside of an extraordinary motion, which C-337 eventually got, but it was also with the proviso that it would be done with amendments to make the bill palatable (but in doing so largely turned it into a symbolic bill, since the Canadian Judicial Council is already doing the training that the bill demands).  The backstory here, however, is that there were Conservatives in the Senate who knew the bill would need amendments and tried to get Ambrose to work with them on it, and she refused, preferring to get uncritical interviews on the national politics shows, who couldn't be bothered to do the literal twenty minutes of research as to why there were problems with the bill.  (I know it was twenty minutes because I timed myself when I researched the second reading debates in the Senate).

With C-262, the horse-trading in the Senate was that the Conservatives would allow it to go to committee on the promise that ministers Carolyn Bennett and David Lametti appear before them to explain why they used to object to the bill and suddenly decided to support it.  The ministers then reneged on the promise to appear, which was then followed by a shocking display during clause-by-clause consideration of the bill when Liberal and Independent senators on the committee limited Conservative interventions and even had Senator Tkachuk removed from the room, which is now the subject of a question of privilege.

After that were more procedural shenanigans on the Commons side, when they passed a resolution to tie C-262 and C-337 together, and demand that the Senate pass those bills something the Commons has no authority to do.  That the Conservatives in the Commons didn't object means that they shackled their Senate colleagues to a bill they didn't support (C-262) with one that they ostensibly did (C-337), which sealed their fates.  With the Conservatives determined not to pass C-262, both because they objected to the contents (under the belief it amounted to an Indigenous veto on all future projects) and the fact that the government broke their promise to have the ministers appear, not to mention the antics at the committee during clause-by-clause, it meant that C-337 would share its fate.

Is there a lesson to be learned here?  There are a few.  One is that Cabinet should not reach into the Senate and try to meddle with legislation without an awareness of how its rules operate (and if they had a competent Cabinet minister as Leader of the Government in the Senate, that would certainly help).  Another is that negotiations for the passage of bills should be undertaken in good faith, which was apparently not the case.  If the government feels strongly about these bills, they should make them their own with actual government legislation drafted by the Department of Justice, to ensure that the constitutionality is sound.  And while there will be an outcry over the deaths of these bills, we should remark that they were not good bills to begin with, as feel-good as they were, and that kind of sentimentality has no place on the statute books of this country.

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I spent the latter part of last week at the Institute for the Study of the Crown in Canada conference at Massey College in Toronto, where I was among the presenters on topics related to how the Crown operates in Canada and other Commonwealth realms Australia and New Zealand most especially.  While my own paper and presentation focused on a couple of the more bureaucratic offices related to vice-regals and the Crown in Canada, it was the presentation by the esteemed Senator Serge Joyal that made some particularly trenchant points about the ways in which we have been using and indeed abusing the positions of the governor general and lieutenant governors in the ways in which we have been appointing them in Canada.

There has been a long history of patronage appointments to these positions made by the federal government of the day.  For the provincial lieutenant governors, the post was originally designed to be the representative of the Dominion Government in the province, who would report back to the federal government and in the very early years, was involved in refusing to sign bills that the federal government deemed out of bounds, but that quickly fell away as provinces gained more autonomy thanks to decisions from the Judicial Committee of the Privy Council, at that time the highest appeal court in all of Canada (and it happened to be in Westminster).  As the Crown became divisible and Canadian after the Statute of Westminster in 1931, the office of the lieutenant governors became much more vice-regal in nature, and more akin to the provincial analogues to the governor general that we think of them today.  But that didn't stop successive federal governments from making patronage appointments to those positions.

Similarly, there have been quite partisan appointments to the position of governor general along the way, once we started naming Canadians to the position Ed Schreyer was a former NDP premier, Jeanne Sauvé a Liberal MP and later Speaker of the House of Commons, Ray Hnatyshyn a Conservative MP, Roméo LeBlanc a Liberal Cabinet minister.  But as Senator Joyal also pointed out in his presentation, there have been other worrying trends that successive governments have also implemented, somewhat by stealth that most governors general have been getting younger, meaning that this is not a final bow after a long career of service, but rather treated as a stepping stone to a next career and their terms have been getting shorter, to as little as five years in some cases, meaning a high turnover and that a two-term government can appoint more than one governor general over their mandate.  Even more worrying has been the attempts by Schreyer to get back into partisan politics on more than one occasion, which is an affront to the dignity of the office, quite frankly.

Add to that, Joyal also made an observation that successive governments have repeatedly chosen television personalities when it came to women appointed to the office Sauvé, Adrienne Clarkson and Michaëlle Jean were all television personalities, and while Julie Payette was an astronaut, she was also a public figure with no background in politics or the Crown (and even more worrying was the fact that she appointed a friend with no governmental or Crown experience as her secretary, a position that requires in-depth knowledge of the vice-regal's constitutional role and powers).  That successive governments would choose women who had a career on television and men a career in politics is also a bit of inherent sexism that we should probably ponder collectively.

If there was one good thing that Stephen Harper did during his time in office, it was to rethink the way in which we appoint vice-regals.  (This was not the only good thing he did, but it was probably one of the most important).  He first attempted the change with an ad hoc committee that came up with a short list from which David Johnston was chosen, and because that process went so well, he created a permanent committee to draw up the short-lists for future lieutenant governors and territorial commissioners (even though they are not actually vice-regals or represent the Queen, but in the Yukon at least they play a similar role Nunavut and the Northwest Territories are complicated by their use of a consensus-based legislature).

This committee not only professionalized the search for vice-regals, but the consultations gave communities a greater sense of buy-in to the process and ownership over their vice-regal once appointed.  Harper's own directives, according to my research, were that while a candidate could have a political past, it needed to be far enough back that they could be seen as acceptable to all parties in the province, and they were by-and-large successful at all of it.  A number of high-quality appointments were made to these provincial vice-regal positions, and its use as a patronage reward for good service was curbed.

And then the Liberals came into power and killed the committee.

Not only that, but they then replicated its essential features as part of their senate appointment process, which makes the decision to kill the vice-regal committee all the more baffling, and to make it look like it was scrapped simply out of partisan spite.  And rather than have any kind of process to find a replacement for Johnston, we wound up with Payette, who has been a constant source of problems in the office.

If the Liberals were smart, they would reinstate this committee (and tying it to a restored Canadian Secretary to the Queen to chair the committee as it existed under the Conservatives would be even more ideal), because it would address many of the problems that we have seen over the years candidates who are far enough removed from any political past, hopefully more qualified on the constitutional mechanics, and who are at a stage in their careers for whom this won't simply be a stepping stone that diminishes the dignity of the office.  But time to do this is running out, and if nothing else, we should hold them to account for killing the committee once the election starts.

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