Bill C-11 passed second reading in the Senate recently. A total of 68 senators voted on it (49 Yea, 19 Nay & 0 abstentions). But the total number of senators is supposed to be 105. The missing 37 senators point to a fundamental defect of our democracy.
On October 25, the official Twitter handle of the Senate of Canada posted the voting results for the Second Reading on Bill C-11, showing that 68 senators had voted (49 in favour and 19 against, with zero abstentions). I had a vague idea that the total number of senators was supposed to be greater than 68 (more on that later), so I decided to check for the exact number. The website of the Senate was helpful; that number is supposed to be 105. The next logical question, of course, was, ‘Where were these missing 37 senators?’. Given the grave importance of Bill C-11, and the strenuous objections from several quarters against its provisions, one would hope that all the parliamentarians in each chamber would vote on it. For what it is worth, my opinion is that C-11 is the most important piece of legislation in a generation, if not the entire 21st century, given that it seeks to regulate all Canadians’ online communication. I believe that it is going to decide the shape – and the state – of the Canadian society of the future.
Upon seeing this tweet from the Senate of Canada, I tweeted about these ‘missing senators’, tagging Senators Paula Simons & Denise Batters. Senator Simons was kind enough to reply, saying that there are ‘more than a dozen vacancies’, and that some senators are ‘away on sick leave’ while ‘some are travelling on Senate business’. Let us look at each of these categories one by one.
The first line of inquiry was, of course, regarding Senator Simons’ phrase ‘more than a dozen’ vacancies in the Senate. I found an article from June 29, 2022 by CBC’s John Paul Tasker with the information that at the time, there were 17 senate seats that were ‘unoccupied’ (the situation is the same as on today, October 29, 2022; see this list of senators on the Senate’s website). In addition, the article notes, 4 more senators were ‘slated to retire in the next year when they hit the mandatory retirement age of 75’ (all of these retirements are happening in 2023, according to the list of senators).
This means that the Senate was more than 16% under-strength at the time – and that the situation is the same as of today. This is the equivalent of the House of Commons having 55 vacant seats out of 338. If that scale of vacancies were to occur in the HoC, there would have been tons of coverage, commentary and indeed uproar as to how the government of the day was being negligent in ensuring that so many Canadians are left without representation in the parliament. The opposition parties would be pounding the desks on a daily basis. But when it comes to the Senate (which is still part of the parliament), there is an eerie quiet about similar lack of representation for the affected people. And this isn’t a new development – the CBC article notes that ‘The Senate hasn’t had a full complement of senators since late 2018’. Imagine so many of the seats in the House of Commons not being filled for 4 years.
Let us recall the popular expression that the Senate is supposed to act as the ‘chamber of sober second thought’. When the Senate is chronically under-staffed, the amount of sobriety that it can bring to the affairs of the State is necessarily diluted. Moreover, as I noted above, certain Canadians end up getting under-represented. But the Senate seats don’t get filled as a result of the razzmatazz of elections, so we don’t notice when they are vacant. Out of sight, out of mind.
The CBC article points out that the seat vacated by former B.C. senator Richard Neufeld had not been filled for 965 days (as of the date of the article, which means 1,087 days as of today – just 9 days short of a full 3 years) and the one vacated by Saskatchewan’s former senator Lillian Dyck had remained similarly unfilled for 673 days (so 795 days as of today). Nova Scotia had been waiting for a replacement for its senator Tom McInnis since April 2020 (so roughly 800 days as of today), while 2 out of PEI’s 4 seats were vacant. Ontario had 5 vacancies. The only province that was fully represented in the Senate was Quebec. There are times when I feel that resentment against Quebec in the rest of Canada isn’t justified, but this is certainly not one of those times. I think it is a grotesque irony that the province that doesn’t want to remain in Canada – or at least, isn’t sure about it – is also the only province with full representation in the Upper House of our parliament that is supposed to act as a check on the Lower House.
The issue here is that there is no check built into our democratic structure on a Senate seat being left vacant for expended periods of time. As the CBC article notes, “Under the Constitution, the Governor General appoints individuals to the Senate. By convention, senators are appointed on the advice of the prime minister. I contend that this convention creates a very real conflict of interest. Let me explain how.
APPOINTING YOUR SUPERVISOR
In the House of Commons, legislation passes based on the numerical strength of the party in government. When the government is in a majority situation, this makes it a lot easier for legislative proposals to succeed in the HoC. The issue of ‘whipping’ votes is contentious, but for the moment, let us accept it as a reality of (parliamentary) life. Currently, we have a minority government, but they do have a de facto majority due to the blank cheque that Jagmeet Singh / NDP has given to Prime Minister Trudeau (I believe this act by Singh to be a blunder of monumental proportions – but that is just my opinion). It is precisely for such situations that the role of the Senate is thought (perhaps out of childlike innocence) to be one of a supervisor to the House of Commons. The senators can provide the final resistance, the last line of defence, against bad legislative proposals becoming the law of the land. For any prime minister, this would be an irritant (because we are all human).
Therefore, a prime minister (and I mean any prime minister) being in a position to decide when – or even whether – to fill a vacancy in the Senate creates room for political shenanigans. Here it is noteworthy that many of the currently vacant seats in the Senate were held by Conservative senators. Is it, therefore, the case that a ‘suitable’ replacement for them couldn’t be found? I don’t want to drift into the realm of speculation, but one must not dismiss the possibility out of hand – after all, we are talking about politics here.
Regardless of whether these vacancies have been allowed to remain unfilled for so long due to partisan machinations or just plain apathy, the fact that the individual who, as the head of government, is responsible for all the legislation brought before the parliament by his government is also able to dilute the ‘final parliamentary resistance’ against the said legislation by the easiest of devices viz., inaction, needs to be remedied – pronto.
NOOBS AND NAWABS
One reason why the government has got away with leaving so many vacancies in the Senate – when a similar proportion of vacancies in the HoC would have brought the wrath of assorted constituencies upon the government – is that in general perception, the Senate is often thought of (or at least described as, in the context of the discussion at hand) as a basically useless institution. A parallel school of thought holds that the Senate seats are no more than tools providing room for patronage for appointment to cushy, well-paying gigs to individuals in return for acts of currying favour for this or that political party in the past. These two combined factors are probably the reason why most Canadians don’t even know who their senator is – and why I wasn’t sure, off the top of my head, as to the exact number of senators that we are supposed to have. Naturally, people can’t raise a hue and cry about their lack of representation in the (Upper House of) parliament; they would first have to know that the Senate seat is vacant.
The CBC article quotes University of Manitoba professor Paul Thomas as saying that these vacancies show that ‘the government has little regard for the upper house and its work’. This is made possible because a lot of people share this view. It is common to see barbs, especially on social media, about an ‘unelected’ senator taking a particular stance on a policy issue. This animosity overlooks the fact that this is the structure of parliamentary democracy that we have; unless we get around to changing that structure – which would be a monumental exercise that nobody in politics has the appetite for – we will have to force ourselves to work within it. In this regard, the very least that we can do is to insist that the Senate be at its full strength. Sadly, the Senate is mostly not on Canadians’ radar, except when we want to complain about an ‘unelected’ or ‘entitled’ senator who only got there as a result of a patronage appointment.
MISSING IN ACTION
Let us now turn to the senators who were away on account of either sickness or travelling on Senate business. As for the first category, would it have been possible to enable them – or at least some of them – to vote on C-11 remotely? Given the evolution of parliamentary functioning since the start of Covid, this possibility certainly exists and should have been explored. Was it explored? If yes, why wasn’t remote voting made possible? As the people paying the senators’ salaries (and the expenses of the functioning of the Senate), we are entitled to an answer.
Even for the senators who were travelling on Senate business (I am taking senator Simons’ words at face value here), remote voting remains a possibility. Beyond that, the scheduling of the vote, that too on a Bill as gravely important as C-11, when 20 senators were away (due to sickness or travel) is not acceptable. What were the possibilities of scheduling the vote when all – or more – of the senators were able to participate in it? This question brings us to a point that I haven’t seen brought up so far, a lacuna that sits at the very base of my ire at the fact that the Senate vote on C-11 was held at a point in time when the equivalent 55 MPs were not around to cast their vote.
MORE EQUAL THAN OTHERS
When it comes to passing legislation (both in the House of Commons and the Senate), I note with consternation that all Bills are treated equally. Without taking anything away from any piece of proposed legislation, some Bills are of vastly greater import than others – but the structure and functioning of our parliamentary process blithely disregards these differences. Translating an old saying from my mother tongue Gujarati, ‘we use the same stick to drive horses and donkeys’. Just as there is a specific and highly rigorous process prescribed for any legislative proposal that has the effect of amending our Constitution, we need a well-defined and case-specific process for certain types of Bills as opposed to other, more mundane ones.
In the immediately preceding parliament, the predecessor to Bill C-11 was also at play (Bill C-10, which ‘died on the floor’ when PM Trudeau dropped the writ and an election was called). At the time, I wrote an article on it (‘Bill C-10: A Fatwa On Knowledge’), detailing my views on how this Bill, if made into law, would have the effect of inflicting a long-lasting wound on the Canadian society in an increasingly knowledge-based and globalized world, leading to erosion of our geopolitical competitiveness that will most likely cause our decline as a society, relegating Canada to the ‘backwaters’ category in the comity of nations.
Bill C-11 is basically identical to Bill C-10. My views on it, therefore, remain unchanged. Earlier, we were able to dodge the bullet because Bill C-10 didn’t become law. This time, we aren’t likely to be as lucky. Regardless of whether you agree with my pessimistic view on the adverse consequences of Bill C-10 (and hence Bill C-11) or not, I think you will agree that its impact is going to be substantial, and will likely define the Canadian society, given the state and direction of communications technology at the moment. So here is my idea about Bills of this nature:
Can we agree that certain types of Bills would require the full contingent of the parliamentarians (in either chamber, and without any vacancies) should vote on them in order for the voting exercise to be valid? I realize that this would create two categories of legislative proposals, and some people may be wary of creating a ‘class system’ of Bills. But let us remember that we already have a specific arrangement for any Bill that has the effect of changing the Constitution of Canada. By requiring a higher threshold for certain Bills to become law, we would merely be acknowledging the importance of the matters and issues that some of the Bills would pertain to. As it is, out of a population of 38 million (and growing), only 443 individuals are able to vote directly on a legislative endeavour. I don’t think it is too much to ask if we expect that on certain issues, all of them in fact vote on the matter hand for their voting exercise to be binding on the rest of the 338 million Canadians.
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