Canada’s unelected democracy
If there can be such a thing as an unelected democracy, Canada would appear to be heading in that direction.
The Liberal government has j ust days remaining before it must meet the Supreme Court’s command for a new law on assisted dying. The court gave Ottawa until June 6 to come up with a new law, with very specific parameters to be met. Its original demand was delivered to the previous, Conservative government and inherited by the Liberals when they won the election in October ( a fourmonth extension was granted to the new government).
None of t he Supreme Court justices is elected, of course, but in the case of Bill C-14 the court went so far as to specify the contents it would like to see contained in the bill. If the Liberals miss the June 6 deadline, those preferences would take effect in their place.
Voting on the bill is expected this week. Once it passes the House of Commons, which seems certain given the Liberal majority, it will go before the unelected Senate for perusal. In the past, one criticism of the Senate — among many — was its partisan nature. Given that its members are appointed by the prime minister, governments tended to stack its seats with reliable acolytes. That has changed since Prime Minister Justin Trudeau ejected Liberal senators from his caucus. Though they remain Liberals, they’re now able to act outside the strict parameters of party loyalty, should they feel so inclined. In addition, Trudeau has appointed a group of neo-independent senators who, though beholden to him for their seats, have no express obligation to tailor their actions to reflect his wishes.
Thus, the Senate is in a position to question C-14, propose changes and delay its swift passing. Indeed, this may be the most independent Senate in memory. Whether that is a good thing, or an affront to democracy, depends on how you feel about the fact a bill dealing with an issue as important as C-14 — literally, a law on life and death — is subject to the approval of 86 unelected men and women (there are 19 vacancies in the 105- seat Senate).
Given what’s at stake, it should come as no surprise that several senators say they intend to take a very close interest in the bill and feel no obligation to please the party that wrote it. Conservative senators, who have not been freed of their partisanship and belong to a party with no permanent leader, can be expected to do their best to embarrass the Liberals. Some of those appointed since Trudeau became prime minister have already signalled they are unhappy with elements of the bill and will seek changes.
As with Canadians at large, there is a sharp divide between those who feel the bill goes too far in enabling people to gain help in ending their lives, and those who feel it does not go far enough. It is impossible at this juncture to predict what the bill will look like when it is sent back to the Commons for another go- round by actual elected members of Parliament. A prolonged stand-off between the elected House and the unelected Senate is not impossible. And there are still the nine Supreme Court justices who will be watching to ensure the result meets the criteria they set.
Though the new law will eventually require confirmation by elected legislators, it can hardly be said that its path reflects democracy in its purest sense. The MPs will only get their chance once the contents have satisfied the demands of unelected judges, as amended by unelected senators. It’s striking that this same government is immersed in an effort to alter Canada’s electoral system into what it considers a more democratic form, on the theory that the government should reflect the views of a broader range of voters.
Should it succeed, one hopes f uture l egislators are made aware of the constraints in place, and disabused of any notion that it’s their job to run the country. If Bill C-14 becomes law, it won’t be traceable to the initiative of any elected Canadian government.
A PROLONGED STAND-OFF BETWEEN THE ELECTED HOUSE AND THE UNELECTED SENATE IS NOT IMPOSSIBLE.