Stanley HarttThe newly independent Senate’s handling of assisted dying was fairly successful. But where does this unaccustomed independence go next?

The Senate might thwart the government’s electoral reform plans, although that could be the best thing for all, including Prime Minister Justin Trudeau.

By Stanley H. Hartt, Dec. 14, 2016

Prime Minister Justin Trudeau’s modest effort at Senate reform now looks as if it may have paid off. Rather than rail against the continued existence of an unelected parliamentary body and insist upon elections or abolition, he opted for a path less controversial and within his power to achieve.

First, in January, 2014, well before becoming Prime Minister, he expelled all Liberal senators from his party’s parliamentary caucus. Cynics argued that this was done so that during the height of the expense-claims crisis gripping the Upper Chamber, he would never have to endure a headline that began with “Liberal Senator so-and-so accused of ripping off taxpayers”.

The previously loyal and highly partisan senators whom former prime ministers had appointed as Liberals would thereafter sit as senators who happen to be Liberals. The next move was equally crafty. To fill the mounting number of vacancies, why not, he reasoned, appoint as independent senators individuals who were generally of a progressive persuasion, highly accomplished in their own fields of endeavour, and could reasonably be seen as non-partisan?

So far, so good. Mr. Trudeau was fortunate to find Peter Harder, once a Conservative political staffer but later an eminent public servant as deputy minister of Foreign Affairs, who had assisted the Liberal transition team after the election. Harder was named “Government Representative in the Senate”, not “Government Leader” as in the bad old days of partisan appointments, political rewards for bag men, and out-of-control spending.

The new appointments have been of a quality appropriate to a non-aligned legislative body of sober second thought, perhaps even the calibre that should always have been nominated. Of course, many previous prime ministers had made appointments of equal or superior competence without having to pretend that political commitment and public policy wisdom were mutually exclusive.

A test of the newly fashionable senatorial independence came with Bill C-14, the government’s legislation on physician-assisted dying in response to the Supreme Court of Canada’s unanimous decision in Carter vs. Canada (Attorney General) in February 2015. The government had been cautious in its approach to how society should handle the moral and ethical end-of-life decisions necessarily involved in bringing our law into line with the Charter of Rights and Freedoms. This had disappointed many who had hoped for a euthanasia-on-demand regime similar to what exists in the Netherlands and Belgium.

The bill that the House originally passed provided for the need for safeguards not expressly called for by the Supreme Court ruling. Among a number of other things, it obliged the doctor who intends to offer a person medical assistance in dying to ensure that another independent medical practitioner has provided a written opinion confirming that the person meets all of the criteria set out in the law.

This was a particularly intelligent way of managing the dilemma left by the Supreme Court’s ruling: the Court had relied excessively on the ability of a physician to discern whether a patient’s consent to the termination of his or her life was truly voluntary and free from external pressure, rather than build in a mechanism to provide some level of assurance against deception or error in this regard. Undoubtedly, the Court had in mind its own decision in Morgentaler, in which it struck down Canada’s law limiting a woman’s right to abortion because of the cumbersome, and sometimes unavailable, machinery that law had required.

Senators, acting with only the authority of their individual consciences, were all over the map on whether protecting the vulnerable meant making it easier or more difficult for them to seek and obtain help in killing themselves. In the end, seven amendments to the government’s version of the bill were passed in the Red Chamber, only one of which captured journalistic and popular attention.

The “sexy” senatorial amendment was from Serge Joyal, who objected to limiting access to medical assistance in ending one’s life to those whose death is “reasonably foreseeable”. Arguments were made that this constraint failed to comply with the Supreme Court’s judgment in Carter and exposed the legislation to yet another Charter challenge. Much less dramatic, but nevertheless important were other amendments, proposed by Conservatives and former Liberals alike. One would ensure that patients considering asking for a physician’s help in terminating their lives are provided with a full briefing on available palliative care options. Another would prohibit a person who would materially benefit from the death from helping the patient to end his or her life where third-party assistance is contemplated by the law.

The Senate sent the bill back to the Commons with the seven changes. The Commons rejected the Joyal initiative but accepted all the others and resubmitted the legislation for a new vote in the “other place”. After due consideration and soul searching about what their newfound independence meant and how far their new muscles could be flexed, senators backed down in deference to the elected Commons and passed the bill without Senator Joyal’s contribution. Interestingly, this made for legislation that, taken as a whole, could hardly be said to be inconsistent with the Charter but which improved the Supreme Court’s regime by leaning in the direction of the government’s own submissions during the Carter case to the effect that a circumspect attitude to this newly recognized right would be appropriate.

A guru of political science could not be happier! Sober second thought had occurred; good suggestions had been made to the elected Commoners, of which six were accepted and one rejected; due deference had been shown to the elected chamber; the bill was adopted and given Royal assent. Isn’t this how the system should work at its best?

Perhaps. But it remains an open question as to where this unaccustomed independence goes next. A monumentally important social issue where right answers are a matter of individual conscience, as in physician-assisted dying, is one thing. Fundamental changes to how our electoral system works will be quite another.

So it would not be unreasonable to expect a much less respectful, courteous, and constructive interchange between the houses of Parliament when examining the issue of electoral reform. The Liberals had promised that the 2015 election was the last to be contested under the first-past-the-post system, where defined-boundary constituencies elect individual members of Parliament by a plurality of votes cast. All of the arguments against such a proposition have already been ventilated:

The present government was elected by the system they themselves have condemned as so flawed it must be discarded without delay;

The present government got only 39.1 percent of the popular vote so, by their own logic, they do not have a mandate to make systemic alterations to our voting practices;

The Oct. 19, 2015 election involved multiple issues and campaign promises and it would be stretching a point to suggest electoral reform was uppermost in the minds of voters when they cast their ballots;

Any change the Liberals propose should be analyzed with caution to determine whether they are feathering their own nest because the post-reform mechanics could well result in a larger Liberal contingent and provide them with an eternal grip on power.

Moreover, changing the way we elect our representatives, while limited to the constitutional constructs affecting the federal side of our federalist institutions, and so not requiring the formality of a constitutional amendment needing the consent of a majority, or all, of the provinces, is nevertheless as fundamental a change as many reforms that would require such ratification. It will affect the way we are governed for generations to come. It is neither a decision to be taken lightly nor one which we should rush into before the next fast-approaching fixed election date.

Because of the implications of changing how we choose the members of the House of Commons, many have argued that this should not be undertaken without the broadest consultation with Canadians, up to and including a national referendum. Due consideration of such an important reform should not have a deadline, even to help the gentleman with the good hair keep a promise.

The recent report of the Parliamentary Committee on Electoral Reform, on which the Opposition parties had manoeuvered to obtain a majority of members, demonstrated how partisan interests can influence a decision with such vast implications: the NDP has long wanted some form of proportional representation while the Conservatives are perfectly happy with the current system and have been insisting that a referendum be held as the ultimate form of popular consultation (because they believe Canadians would reject the proposed change). So the Committee recommended a referendum on an unspecified form of proportional representation to the chagrin of the Liberal Minister for Democratic Institutions who chastised the Committee for not doing the job that was assigned to them.

The Prime Minister’s preferred option seems to be a ranked ballot, which would reallocate the votes of the least-favoured candidate in an electoral district according to the indicated second, third and fourth choices until one candidate had more than 50 percent of the votes cast. This is a system that favours the centrist Liberals. This is deceptive in its pose as a democratic enhancement (members would still not be the first choice of a majority of their constituents). But every option has the problem that it would have produced a different result than that of the last election, thus favouring some and goring the ox of some others.

The PM courted criticism with his early October interview with Marie Vastel of Le Devoir, in which he appeared to be back-tracking on the urgency for electoral reform, saying, “… we now have a government [Canadians are] more satisfied with and the motivation to change the electoral system is less compelling”, and yet the “hurry up and consult” events that the government organized have not slowed down, culminating in the recent mailing to every Canadian household of postcards seeking views on the present and potential alternative systems.

Dealing with multiple options makes consultation by referendum impossible. There can be an infinite variety by combining elements of one voting system with attributes of one or more of the others. Leaving aside the inherent risks of a referendum campaign focused on emotional rather than substantive choices (did anyone say “Brexit”?), a multiple choice question in a referendum would almost certainly not produce a clear winner with more than 50 percent of electoral support (PEI recently used a ranked ballot among five potential structural options which took four run-off rounds to produce a result)!

To really provide fairness and validity to a public consultation on voting reform, there would have to be an exceptionally clearly expressed option and the majority by which it was chosen would also need to be clear, for many of the same reasons that led to the Supreme Court’s 1998 judgment in the Reference re Secession of Quebec which in turn led to the adoption in 2000 of the federal Clarity Act.

So what is a poor head of government to do with such a self-generated dilemma? He could stand down from his preferred option or use his majority in the House of Commons to adopt it and send it to the Senate. The newly emerged senatorial independence could be a way to let himself off the hook for an ill-advised promise in the last election. Conservatives, non-Liberals, and independents alike could do democracy, their institution, and the entire country a favour by employing every device at their disposal to resist a bum’s rush to a partisan outcome, which would likely amount to constitutionalizing the Liberal Party’s role as the Natural Governing Party.

If the newly independent Senate saved his bacon by turning down what would be seen as a self-serving Liberal proposal for electoral reform, he could shrug (surely it must run in the family), and state that this matter will have to be studied further, since while it merits broad consensus, it is not an apt subject for the forms of consultation employed thus far.

Stanley Herbert Hartt, OC, QC is a lawyer, lecturer, businessman, and civil servant. He currently serves as counsel at Norton Rose Fulbright Canada. Previously, Mr. Hartt was chairman of Macquarie Capital Markets Canada Ltd. Before this he practiced law as a partner for 20 years at a leading Canadian business law firm and was chairman of Citigroup Global Markets Canada and its predecessor, Salomon Smith Barney Canada. Mr. Hartt also served as chairman, president, and CEO of Campeau Corporation, deputy minister at the Department of Finance and, in the late 1980s, as chief of staff in the Office of the Prime Minister.