Leonid Sirota: On the Emergencies Act, the Senate gets an equal say. It should lead

The House of Commons and the Senate are not making law here. They are scrutinizing the cabinet’s decision-making.

Photo Credit: Senate of Canada

By: Leonid Sirota

Last week, the federal government invoked ― for the first time — the Emergencies Act to deal with the “freedom convoy” protests in Ottawa and elsewhere. This gave the government extraordinary powers, including that of coercing tow truck drivers into working on clearing the protest and getting financial institutions to freeze the accounts of people involved in the protest without a court order. Justified or not, this is a serious interference with people’s rights and freedoms.

Even as it enables the government to take such far-reaching actions, the Emergencies Act provides safeguards against abuse. One such safety valve is that the government’s declaration of an emergency has to be approved, in short order, by both the House of Commons and the Senate in order to continue in force. In the Act’s words, “If a motion for confirmation of a declaration of emergency is negatived by either House of Parliament, the declaration, to the extent that it has not previously expired or been revoked, is revoked effective on the day of the negative vote.”

The House of Commons approved the motion to confirm the government’s declaration of emergency on Monday. It is up to the Senate to consider it now. And so, it may be useful to review the principles that govern the role of this much misunderstood and often maligned institution. 

The Senate is not a deus ex machina that can rescue us from bad government. The suggestion, put forward by some of the “freedom convoy” leaders, that a constitutional chimera made up of the Senate and the governor general could oust the federal government and redress whatever grievances they came to air was arrant nonsense. For the most part, the Senate’s role in the government of Canada is very limited, and rightly so. 

Senators are not elected and, as a result, lack the legitimacy to oppose the will of the House of Commons, whose members (the MPs) are, and the cabinet, led by the prime minister, which is responsible to the House of Commons. When the cabinet proposes that a law should be enacted, and the House of Commons agrees, constitutional propriety (a “constitutional convention,” in the jargon) dictates that the Senate’s role is limited to, at most, making suggestions for improving this law while respecting its general principle. 

For an example of these rules at work, recall the passage of Bill C-14, the assisted suicide legislation. The then-minister of justice introduced the bill in the House of Commons, where it passed. The Senate considered it in turn, and, considering that it unjustifiably restricted access to medical aid in dying, passed an amended version. But the House of Commons disagreed, and re-passed the bill in its original form, sending it back to the Senate. The Senate yielded. The elected House is entitled to get its way, and any violation of constitutional rights that results can eventually be redressed through the courts.

Back to the government’s emergency declaration: does the same convention mean that the Senate ought to follow the lead of the House of Commons and assent to it? It does not. Let me explain.

First, approving an emergency declaration is a different task from that of legislating. The House of Commons and the Senate are not making law. They are scrutinizing and checking the cabinet’s decision-making. Here, the electoral credentials of the House of Commons matter rather less than when it comes to enacting new laws.

Second, as I have noted at the outset, the emergency declaration has important constitutional implications. It grants the government extraordinary powers and upsets the usual balance between the executive, Parliament and the judiciary. It empowers quick government action that cannot be effectively challenged in the courts. While the Emergencies Act and the measures it authorizes are subject to the Canadian Charter of Rights and Freedoms, the Charter does not protect our property rights or freedom of occupation and will be of little use in the current context.

Third, remarkably and quite inappropriately, the prime minister bullied the House of Commons into approving the emergency declaration by making the vote one of confidence, meaning that he would ask the governor general to call an election if he were defeated. One Liberal MP has publicly said that this was the reason why he voted to support the government. Who knows how many others did too, without admitting it? The Senate is not the House in which confidence in the cabinet is decided; that’s the special role and privilege of the elected House of Commons. Accordingly the Senate has an opportunity to think freely of government pressure.

Last but not least, consider the Emergencies Act itself. It gives both the Senate and the House of Commons a say over whether an emergency declaration should continue in force. Since we are dealing with, well, an (alleged) emergency, it would have made no sense at all to ask the Senate to debate and vote on this matter if its vote were intended to be a mere formality. No, when it adopted the Emergencies Act, Parliament meant for the Senate to exercise independent judgment.  

The Senate ought to do so. Now is the time for the “sober second thought” with which the Upper House is associated in our constitutional imagination. Emergency declarations are serious matters, and should continue only for so long as they are needed ― not for so long as the government finds them convenient to have lying around.

Will the Senate act independently? I do not know; I am just a boring law professor, and this question is above my pay grade. But I would like to conclude with an observation about how either answer to this question should make us reflect on the attitude the current prime minister and his predecessor have taken to the Senate. 

If the Senate defeats Mr. Trudeau’s government, it will be in part because he cut his ties with what used to be the Liberal caucus there, releasing existing Liberal senators and new appointees to act with greater independence (though, in fairness, senators were always somewhat more independent-minded than MPs; not having to get re-elected does that to one). What may have seen a cost-free symbolic gesture might yet turn out to have been quite consequential.

Conversely, if the Senate ends up siding with the government, this will in part be because there are fewer Conservative senators than one might have expected. The reason for that is that Stephen Harper simply stopped appointing senators, in a fit of pique over the failure of Senate reform plans. That was a dereliction of constitutional duty ― the prime minister must fill Senate vacancies as they arise. And now, if not Mr. Harper himself, then at least many of his erstwhile supporters may come to regret that he did not.

The constitution is not to be messed with. This crisis has become as bad as it has because various institutions have failed to act responsibly and do their duty. It is high time this changed. The Senate has a chance to lead by example.

Leonid Sirota is an associate professor at the Reading Law School (U.K.) and the founder of the Double Aspect blog.

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