This week I found another perfect example of Politics 101 in the Canadian news headlines: two Senate bills made their way into law through the House of Commons.
It is not really unusual for Senate bills to become law but the passing of S-201 and S-217 provides us some lessons about legislative processes.
A piece of legislation or bill can be initiated in either the House of Commons or in the Senate but as the Senate fact sheet says: "While bills can be introduced either in the Senate (in which case their number is preceded by the letter S) or in the House of Commons (in which case their number is preceded by the letter C), the Senate cannot initiate money bills (i.e. bills imposing taxes or providing for the collection or spending of public money)."
S-201 is a bill to disallow companies from requiring genetic testing and S-217 is a bill that would "expand the grounds for the justification of detention in custody," especially when the accused has been previously convicted of a crime.
While the substance of both of these pieces of legislation is very interesting I would like to highlight the process by which they both came into law.
In the case of S-201, the headlines read: "Liberal backbenchers vote against Trudeau, pass law banning genetic discrimination" (National Post); "Liberal backbenchers defy cabinet wishes and vote to enact genetic discrimination law" (CBC); and "Liberals defy Trudeau, approve 'unconstitutional' genetic testing bill" (Globe and Mail). There appears to be a lot of drama in the passing of this bill and I suppose there is... if you love constitutional law and parliamentary convention. Assuming you do, I will try to explain why the headlines look so dramatic.
S-201 is not a government bill. It was introduced in the Senate and it passed three readings before being turned over to the House of Commons for a further three readings and becoming legislation.
Like all bills, it requires a 50-per-cent-plus-one vote in the House of Commons (170 votes) to pass. Between readings in the House (and in the Senate), committees review proposed legislation to determine the impact on the Canadian public and, as was the case here, the constitutionality of the legislation.
Most people are aware of the way that the state may infringe upon their rights and so when we think about "constitutionality" we usually ask: "How will this law impact my right to (fill in the blank)?" Few observers are concerned with the question: "Is this legislation in the jurisdiction of this level of government?"
You see our Constitution outlines a federal system which means that areas of jurisdiction are enumerated. In other words, the Constitution tells us in which areas each level of government may legislate. The "lists" are framed out broadly. Not every single example is listed and it is the role of the legislature and, ultimately, the courts to determine if any particular bill falls within federal or provincial areas of jurisdiction.
In the case of S-201, the Liberal government argued that they felt that this law overstepped their authority "on the grounds that in regulating insurance companies the bill was wading into an area subject to provincial jurisdiction" (National Post). A quick look at Hansard, which is the complete transcript of debates in the House of Commons (for this topic, type in "constitutional experts testify on S-201" to Google and find "Publication Search" - it will take you straight there) points to a number of speakers who said that constitutional experts testified that there was precedent for the federal government to enact this type of legislation. Clearly the government disagreed.
The second part of the media headline that is interesting is the aspect of "MP defiance" in voting against the government. In the case of S-201, Prime Minister Trudeau asked his party, but specifically his cabinet, to vote against the bill. Many backbenchers defied that request. Clearly the constitutional jurisdiction issue was less pressing to them than was the issue of protecting privacy rights. There was no great risk in the MPs voting in favour of the bill. There was no issue of confidence in the House.
In the case of bill S-217, Wynn's Law as it is called, it was supported by Liberal MPs and they were given the right to free vote by the party. The Senate bill was sponsored in the House of Commons by a Conservative but its merits were clear to MPs as the law arose in response to the death of an RCMP officer, Dave Wynn, who was shot and killed by an "individual who had a lengthy rap sheet and who had skipped bail" (National Post).
Both S-201 and S-217 may not warrant dramatic headlines but they do warrant the attention of observers of the legislative process.
