The case for gong shows and eggheads

Senate

Steven stood up.

“It’s strange that the Conservatives are promoting democracy abroad while limiting it here.”

Then Joanne rose by her seat.  Her daughter just turned 18, and her only useful piece of ID is a health card.

“Will she be able to vote?”

Then Peter piped up.

“Can C-23 be challenged in the Supreme Court?”

Good question, Peter!

I was at the NDP’s town hall on the Fair Elections Act.

The vaguely partisan affair was held in the Lord Elgin Hotel’s windowless basement conference room.  100-some Dippers and non-nominally-lefty-types alike crammed into the bunker to chat and prognosticate on the inherent uselessness of C-23.  If it was a circus, it was a pretty boring one.

But it was not Steven and his hyperbole, or Joanne and the question about her daughter (for what it’s worth: yes, seemingly, her daughter can vote) but it was Peter with the million dollar question.

Unfailingly, when discussions about the Senate crop up, as they so unfailingly do in the hallowed halls of Ottawa Bubble bars, some tipsy partisan (usually a Liberal, sometimes a PC-era Tory) will tell you why they support a Senate: because it ensures that bad bills don’t get passed.

And then you, being a student of Canadian politics, say something like: what bad bills has it stopped?

And then they say, with great bravado: That CBC bill!  And…uh.  We need to fix the Senate.

And they are quite right.

One of the Senate’s core functions is to pass legislation if it should, fix legislation if it can, and kill it if it must.  I wave away with complete impunity all of the supposedly constitutional and historical purposes of the Senate because, if it is unable to execute its core function, those are all moot.

According to Parliament, the Senate has amended 116 bills since 1960.  For context: the Harper Government has passed over 800 bills since 2011 alone.  Those include a number of amendments made at the behest of the ruling party.  C-10, the Safe Streets & Communities Act, falls into that category — the Senate amended the legislation to ensure that it goes further, not to fix errors.  (Admittedly, the amendments, which ensured that victims would be able to sue foreign states for acts of terrorism, were an improvement.)

What of bills rejected outright by the Senate?  Since 1868, there have been 133 — only seven since World War II.  Those were, almost unfailing, private members’ business, or government bills rejected by a politically contrite Senate.  In other words: partisan rejections.

That’s not a great track record.

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But sitting in the NDP’s subterranean town hall, I had a thought — populist political opposition has killed and fixed more bills than the Senate ever has.

While the Senate was intended to be a counterbalance to the voix du peuple of the House of Commons, installed in perpetuity to protect the rights of the little guy, it has utterly, entirely and absolutely failed to stop unconstitutional legislation with such mind-numbing ineptitude that it has essentially become a rubber stamp, and thus a facilitator, of the trampling-over of our Charter rights.

I will posit this: the rough-and-tumble pure populism of the House of Commons, if it ever even existed, has dissipated into disconnected and contrarian partisanship — which was the initial purpose of the Senate.  So what’s the value in having two competing bodies, one with power and one without?

Take for example, the appointment of Marc Nadon.  While the Senate had no real say in appointing the judge, it did consider two clauses that were intended to clarify sections of the Supreme Court Act relating to the eligibility of Justices.  Submissions to the Senate echoed exactly what the Supreme Court said last week — Parliament cannot unilaterally change the eligibility of the top bench, as doing so constitutes a change in an effectively constitutional document.  Now, had the Senate sat there and really studied the issue, they may well have come to the same conclusion.  Instead, they considered the clauses over two meetings, totalling three hours, then passed it.

You can chalk all that up to Harper’s PMO, but that’s not quite fair.  It’s true that this Conservative Government is particularly in need of a copyeditor, as they’re not fond of letting the partisans in the House play that role.  But in situations where the Government’s legislation could be fixed to better serve Harper’s agenda, it’s still not being done.

The result is that bills that they pass are being struck down because of the way they were drafted.  Take Bill C-10 — yes, the same one that was amended by the Senate — that imposed mandatory minimums on possession of an illegal firearm, amongst other things.  It was struck down as unconstitutional by an Ontario court for, of all things, limiting the rights of lawful gun owners.

Harper-haters might be torn on this one.  On one hand, it’s an anti-gun law.  On the other, it’s a mandatory minimum.  In the end, there ended up being some celebration over this, as people figured it was a general rebuke of Harper’s policies.  It, in fact, was not.  The judge actually called the law “a rational legislative response to the very real public safety concerns.”  The issue arose around the fact that the legislation didn’t take into account regulatory issues — that is, there was no exemption for lawful gun owners who merely forgot to re-register their firearm.  As such, the court struck it down.

Now, in an ideal world where the Senate works, that should have been picked up on.  But it wasn’t.

And talk all you want about how great the newly-freed slaves in the Senate Liberal caucus are, it doesn’t make a difference.  You can appoint Senators on a non-partisan basis.  It doesn’t matter.  They didn’t pick it up, and we just can’t expect them to.

Because the case for the Senate appears to be that they should focus on the big-name stuff — the Fair Elections Act, say.  Yet that request is problematic on so many fronts — how can an appointed Senate, bound by some level of convention, dare kill a bill passed by the lower chamber?  And, in the end, isn’t that the population’s job?

But in the minutiae, the area where the Senators are supposed to excel, the Upper Chamber fails anyway.  Unless you stack the red satin seats with only lawyers and scholars at the top of their game, each subject to yearly aptitude reviews, they won’t catch the issues in these bills.  They may call witnesses and read submissions, but too often they — as every politician does — get caught up in the broad strokes.  The fundamental structure of our Parliament does not create much of an environment for Parliamentarians to take a microscope to these bills, and especially not the ones that really matter.

What this country needs is a better conduit for the public to express outrage, concern and support for bills in the abstract, and for clever brains to vet and improve legislation in the specific.

There are better options for achieving the latter than the circus of the Red Chamber, as our choices need not be limited to the Senate, or not-the-Senate.  If we’re concerned about fixing fundamental flaws in our legislation, as we really should be, we ought to be actively looking for something else.  What that is — legislative council, a bureaucratic consolation committee, an independent legal vetting — could be informal and purely advisory.  What we need are eggheads.

On the other front, the NDP’s ad hoc town halls are a good model to build from on the populist front, and it’s an idea that shouldn’t be too foreign to the ex-Reformers in the House.  The Dippers tried to suggest something akin to that by bringing the Procedure and House Affairs Committee on the road.  That was struck down by this government, as they fretted that it could be a partisan “gong show.”

Considering how often Ottawa is capable of passing crap legislation with impunity, if you ask me, we could use more gong shows.

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OTHER ARTICLES BY JUSTIN LING

This Week In Voter Suppression
Minister Poilievre Interviewed On Fair Elections Act
Building Poilievre’s Electoral Fraud in the Sky

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Follow Justin Ling on twitter: @Justin_Ling

 

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