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OP-ED: As more key pre-election government bills head to the Senate, we can learn from our work on Cannabis Bill C-45

Senator Tony Dean

In the 12-month run-up to the next federal election several priority government bills are landing in the Senate. These include Bill C-59 dealing with national security, C-69 which would create a new energy regulator, and Bill C-71 which touches on the regulation of firearms.

As Senators ready themselves for more political fireworks they can lean on their experience in reviewing Bill C-45, the Cannabis Act, earlier this year. Here’s a quick reminder of how C-45 played out:

Conservative Leader Andrew Scheer did Canadians and the Senate no favours in calling for “his” Senators to block or delay Bill C-45. This effectively disenfranchised Conservative Senators from participating in an open-minded inquiry into a hugely important bill. In many cases, extensive research and evidence was sidelined by rote speeches drawn from the era of reefer madness. This was a reminder of the importance of working towards a more independent and less partisan Senate. We aren’t going to take politics out of the Senate but we can surely find a better balance than this.

On the bright side, and after some nudging from the bill’s sponsor and others, Senate leaders agreed on some sensible approaches to organizing our extensive C-45 debates. This rarely-used approach saw key government ministers invited into the Senate Chamber to address the Senate sitting as a “Committee of the Whole” to face a grilling on emerging issues in the legislation.

It also saw the negotiation of a predictable series of Senate debates with blocks of time set aside for discussion, avoiding the normal, and dispiriting, on-again, off-again, debates frequently adjourned by any Senator wanting to shut down discussion. Agreement followed on deadlines for key votes in order that Senators could organize their time efficiently and Canadians could follow our work. A similar process was used successfully in the Senate’s 2017 debates on medical assistance in dying.

A business planning approach to the Senate’s work has been promoted for years by several reform-minded Senators and is at the centre of discussions at the Senate Committee on Modernization. A majority of Senators and, likely, Canadians, would like to see this sort of process formalized.

The complexity and scale of C-45 required an early start to getting basic information and research out to Senators as early as possible—and not just to those in my own group. My office worked over the summer of 2017 tracking debates and committee deliberations in the House of Commons. We compiled existing research and commissioned new research on gap areas and controversial aspects of the bill. And we didn’t hold the results close to our chest, as seems to be the norm. Our research was made available to all Senators, which was apparently unusual. Transparency, internally and externally, should become a hallmark of a more independent Senate.

Efforts to delay Bill C-45, and to vote it down at second reading, prior to committee review, prompted a discussion of the Senate’s role in dealing with priority government bills which found prominence in election platforms. The U.K.’s House of Lords operates under the “Salisbury Convention” under which it can delay government bills by several months, but not defeat them. Canada has no parallel, with the result that the unelected Senate can, and has, defeated government bills. And we saw an effort by Conservative Senators to do just that.

Senator Peter Harder, the government’s representative in the Senate, has argued for consideration of a made-in-Canada version of the Salisbury model. The Bill C-45 experience reinforces the need for further discussion of this proposal.

The controversial nature of Bill C-45 saw vast amounts of research and data contested and polarized. Some Senators claimed that they were taking an “evidence–based” approach to the bill—which sometimes seemed to mean finding a piece of research that supported their viewpoint and sticking with it.

Public policy professionals have become more comfortable in recent years with the concept of “evidence-informed policy” which acknowledges that there is often competing data, or different interpretations of data, or that data is sometimes interpreted loosely through both political and bureaucratic lenses. Public service leaders now expect our public servants to look at policy issues and data from a variety of perspectives and to make an effort to reconcile competing data and points of view. We would benefit from developing this sort of capacity in the Senate.

The Senate can and should build on this learning. These are relatively small and obvious changes that are achievable as we transition to a less partisan and more independent Senate—and all would attract public support.

But none of this will come easily without challenging those who keep telling us that they prefer the Senate “just the way it is.” Canadians deserve better, and senators should rise to that challenge.

This op-ed appeared in the September 24, 2018 edition of the Hill Times.