Medically assisted dying bill offers reminder that Senate has purpose

So once again, public attention turns to the Senate. This time, oddly, it's for something to do with the upper chamber's actual legislative mandate.

"I enjoy having this kind of discussion around something substantive rather than trying to defend the latest bad news story about expenses or something," says James Cowan, leader of the Senate's Liberals. 

"This is what I came to the Senate to do. And I think most senators would probably agree with that — even if they didn't agree with what I thought about this bill."

The bill that has brought new interest to the Senate is Bill C-14, the Liberal government's legislation on medically assisted dying. With it comes a chance to consider the Senate's stated purpose and potential role.

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For the first time in recent memory, television cameras will broadcast the Senate's proceedings to the outside world  Wednesday afternoon, when Justice Minister Jody Wilson-Raybould and Health Minister Jane Philpott visit the upper chamber to take questions from senators.

Rather than familiar footage of harried senators walking through and past the packs of reporters that have staked out the Senate on its worst days, Wednesday's images will show a deliberative body at work. 

"I am hopeful and optimistic that the Senate will do its job on this bill," says Ratna Omidvar, one of the seven independent senators nominated by Justin Trudeau in March, "and in doing so, move its reputation ahead by demonstrating to Canadians that it is possible to have thoughtful, intelligent, informed and independent discussion."

Few recent cases

In theory, rightly or wrongly, the Senate exists to act as a check on legislation passed by the House of Commons. Recent examples of the Senate forcibly applying its judgment are few, however.

The last government bill sent back to the House of Commons with an amendment was the previous Conservative government's omnibus crime bill in 2012, though in that case the amendments seemed to be merely to fulfil the government's tardy desire for changes.

Previous to that, the Senate last amended a government bill in 2009.

(Senate pre-studies of bills still in the House of Commons might have also otherwise influenced amendments made in the House, but classic examples of the Senate exercising sober second thought have been relatively rare.)

Of course, Senate committees have conducted relevant studies and senators have proposed interesting initiatives, but otherwise any news of the Senate's primary reason for being has been subsumed by the tawdry business of entitlement and expenses and competing proposals to either overhaul the upper chamber or eliminate it altogether.

Whether or not the Senate should exist, it unquestionably still does. Without a democratic mandate, however, any foray into sober second thought is potentially fraught. In C-14, the Senate has a bill it could potentially amend with some justification — various experts and voices having questioned the constitutionality of the legislation.

'A very responsible way'

"I feel that I have a job as a legislator when I'm requested to study a bill to satisfy myself that the bill meets the Charter test as defined by the Supreme Court," Liberal Senator Serge Joyal explained to CBC News this week when asked whether it would be irresponsible to not pass a bill before the Supreme Court's June 6 deadline.

"And to make sure the bill will be safe and that it will be permanent and not open to challenge the next day in the Canadian court is, in my opinion, a very responsible way of being a legislator."

While New Democrats fumed six years ago when the Senate defeated an NDP bill on climate change, they might not reject the upper chamber's intervention now.

"I'm a member of a party that believes that our democracy is not well served by an archaic institutions to which individuals are appointed not elected," says NDP MP Murray Rankin, who has strongly condemned C-14 in recent days.

"But I live in a world where it's part of our governance system … so consequently, I want this law to work for all Canadians. I want it to be a law that is consistent with what a bunch of people won in the Supreme Court, and which this bill takes away."

Rankin's concerns about the scope of the bill are shared by at least some senators.

Redemption for Senate?

In a note on Monday night, Wendy Robbins, the Liberal activist who challenged last weekend's Liberal convention to consider the federal government's bill, suggested that a "moment for full redemption" was at hand for the Senate.

Which is perhaps not quite to say that the Senate's seriousness or utility must now be measured by its willingness to amend the bill (nor that the Senate should amend the bill simply to demonstrate its utility).

It remains to be seen whether a majority of senators will support any particular move to change the legislation. Liberal senator George Baker, for one, argued earlier this week that the Senate should not pass any amendment that was already defeated in the House.

C-14 does provide the Senate an opportunity to be seen doing something other than embarrassing itself. But even if C-14 somehow passes without substantial amendment, with the Trudeau government aiming to create a more independent and less partisan chamber, great displays of sobriety might still follow.