When the toll of the pandemic on Canada’s parliamentary institutions is finally tallied, it will be hard to argue that some of its most devastating impacts have been on the Senate and the job that is has been neglecting to fulfil. For two years now, far too many bills have been rammed through both Houses in a fashion that is too quick and lacks scrutiny or study, settling for a couple of well-meaning speeches and then sending them on their way. It’s not how our Parliament is supposed to work, pandemic or no pandemic, and yet we’ve been allowing it to happen with increasing frequency. Political expediency rules the day, and the role of sober second thought is being eroded with each bill that passes where no committee study happens.
There once was a time where the Senate’s committees were the heart of what it did. Debates in the chamber itself were short and perfunctory in order to ensure that the bill got to committee as expeditiously as possible, so that the real work could begin. It’s one of the reasons why the Senate’s Order Paper and their sitting schedule is built vastly differently from that of the House of Commons—because it recognized that its value lay elsewhere. With the advent of the new “independent” era, this has started slipping away as more and more time gets spent on second reading debate, and since the pandemic and the advent of “hybrid” sittings to maintain some semblance of parliamentary oversight, committees have almost entirely fallen to the wayside, which is an incalculable loss for our institutions.
In the past three weeks, two pieces of government legislation saw almost no debate, and no committee study at all—Bill C-4, which was the ban on conversion therapy; and Bill S-2, which aimed to make changes to the Parliament of Canada Act with respect to making changes to how the Senate operates to codify some of the changes since the rise of the independents (and to give some new allowances along the way). This should never have happened, and it’s a complete abdication of the Senate’s responsibilities, not to mention the responsibilities of the Opposition, whose own motions sped these bills along in spite of their constitutional duties to scrutinize and hold government to account through the process.
With Bill C-4, there are live constitutional issues that should have received a full airing in both Chambers, namely the scope and breadth of the legislation. When the bill was first introduced in the previous parliament, justice minister David Lametti said that the bill had a loophole for “consenting adults” because that was the limit of how far they could go constitutionally—a complete ban would be face challenges that they were apparently not confident they could win. When it was re-introduced at C-4 in this parliament, however, that loophole was removed. When asked, Lametti said it was because they better understood the harms of this practice and that was why it needed a full ban, but because the Conservatives moved the motion to pass the bill in one fell swoop in the Commons, that never got explored in committee as it should have.
The Senate should have done that work, especially because MPs did not. These are live constitutional issues that got zero exploration from expert witnesses, and there is almost nothing on the record for judges to look to when it comes to future court challenges to this legislation. The Senate was where this should have received a full airing, and in a way that is not about partisan point-scoring at committee (unlike in Commons committees), and yet they did not. Why? Because the Opposition in the Senate claimed that they didn’t want the government to use this issue as a political wedge, thus abdicating their constitutional duties and responsibilities.
As for Bill S-2, these are big and important changes to the fundamental operations of the Senate, which have the potential to devalue the role of the Opposition in the Senate, and yet this never saw any committee study, either in the previous parliament when it was Bill S-4, or in this iteration. There were a handful of speeches, most of them in favour of the changes because there are enough senators who have a self-interest in doing so, but there was no study. And because there was no study, nobody apparently flagged that the bill was problematic because it was ostensibly a money bill being initiated in the Senate, which goes against the constitution, and the tricksy language used to get around that might not fly. Well, when this bill sailed through—once again because the Conservatives, who are opposed to the bill, didn’t want to “bog down” the Chamber—the Commons Speaker raised objections about its admissibility, and lo, the government had to withdraw it and re-introduce the Bill in the House of Commons instead.
There are a couple of problems at work here. One of them is the problem of second reading debate, where too many of the newer, independent senators feel compelled to make unnecessary speeches at second reading when the practice had been to simply have the sponsor introduce it, the opposition critic raise objections a few days later, once they considered the sponsor’s speech, and then send it off to committee. Now second reading debate is interminable, much like the House of Commons, and the Senate is slowly turning into what it shouldn’t—some kind of debating society (and the push to organize speeches for the sake of television will only make this worse).
The other, more serious problem, is that hybrid sittings have effectively destroyed the committees because they need to share IT resources and interpreters with the House of Commons, and the Commons gets priority on those resources. This left senators too afraid to use those resources for most committee work (coupled with the unwillingness to simply bubble in Ottawa where they could operate more freely in a protected environment), and hence very little committee study happened, to the detriment of Parliament as a whole.
These are very worrying changes for the Senate, and I fear that this will start setting patterns and precedents, especially among the newer senators, as we have too few of the old guard willing to ensure that procedure is being followed and ensuring that the Senate is fulfilling its role of sober second thought. Sober second thought is not just reading a couple of additional speeches into the record. It was the work in committee that did the serious work the Commons never could do, and that is now in danger of extinction.
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