Law Times

Page 6 April 16, 2018 • lAw Times www.lawtimesnews.com Balance of power shifting in Red Chamber BY KADY O'MALLEY E ven before Team Trudeau un- veiled the details of its plan to roll out regulated cannabis sales across Canada by mid-2018, there were rumblings that any legislative bid to repeal the long-standing pot prohi- bition would almost certainly spark a showdown between the elected repre- sentatives in the House of Commons and the sober second thinkers of the Senate. Back in the day — which, in this par- ticular instance, refers to that not-so- long-bygone era that came to an abrupt end on March 18, 2016 when Prime Minister Justin Trudeau announced the inaugural round of Upper House appointees selected through his much- self-vaunted independent nomination process — such standoffs were few and far between. On the rare occasion when one did occur, it was usually during those brief blips in the parliamentary cycle when the party in government found itself without a working majority in the Senate. Today, the balance of power in the Red Chamber is slowly but steadily tilt- ing in favour of the 44-and-counting senators with no formal af- filiation with any recognized party. Even the dwindling cadre of card-carrying Senate big-L Liberals seems increasingly unbound by any overrid- ing sense of loyalty to Team Trudeau, who did, after all, politely but firmly eject them en masse from the parlia- mentary caucus shortly after taking over as leader. Given that context, it's no longer a question of 'if ' a particular government bill may run aground in the Senate but 'when' and 'exactly how much.' For the pot bill, the first test came at second reading, when Senate Conserva- tives noticed a higher than usual num- ber of empty seats across the aisle and demanded a recorded vote on whether to send the bill to committee or render it dead on (or, to be scrupulously accurate, shortly after) arrival. Such procedural formality is rarely observed at such an early stage in the process, as it's generally agreed that all but the most spectacularly ill-conceived government bills should at least be passed on to committee, where senators can go over the fine print in detail, make any changes they see as necessary and, if truly unpersuaded by the govern- ment's rationale for its exis- tence, even recommend that it proceed no further. Despite the last-minute burst of drama, the pot bill sailed through second read- ing — the final tally was 44 to 29, with just one non- Conservative — step forward, Sen. Mike Duffy — voting nay. It was an outcome the Tories were swift to seize as still more evidence that those so-called "independent" sena- tors are simply closet yea-men for the Trudeau government. The framework for legalizing pot, as both Trudeau and his Senate repre- sentative, the avuncular retired deputy minister turned parliamentarian Peter Harder, have been keen to point out is not just any government bill but a key pledge in the Liberals' 2015 campaign platform, which, in their view, means that defeating it wouldn't just be over- ruling the elected House but the collec- tive will of the Canadian people. It's worth noting, though, that the Senate has never tacitly or explicitly ceded its constititional right to kill any bill, government or otherwise, regard- less of the will of the Commons, al- though it has historically been reluctant to pull that lever. Still, it's fair to say that the real trial by fire — for both the bill and the Sen- ate's independents (and, for that matter, independence) — will be at committee — or, in this case, committees, as there are, at last count, five that are currently or soon to be analyzing the potential impact of legalization on everything from cross-border logistics to Indig- enous communities. With the countdown to both the summer recess and the Liberals' hoped- for summer deadline to bring in the new laws already ticking away, what happens in the Senate over the next few months won't only decide the fate of the govern- ment's pot legalization plan, it could al- ter the already complex cross-chamber dynamics for years to come. LT uKady O'Malley is a member of the par- liamentary press gallery in Ottawa and writes about politics, procedure and pro- cess for iPolitics. She also appears regu- larly on CBC television and radio. 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In the most recent rul- ing — released this month — Ontario Superior Court Justice Patrick Monahan said the government should conduct a review of the pro- cess for assessing lawyers' accounts because of delays that are under- mining public confidence in the administration of justice. In Linett v. Aird & Berlis LLP, Monahan said the vast majority of the delay was due to the assessment officer involved and it raised "serious questions about the fairness and effectiveness of the current process for assessing solicitors' accounts in Ontario," thus requiring review. "Not only is this important for the administration of justice, as well as for solicitors and their clients, it is simply a matter of consumer protection," he said. To make matters worse, lawyers have said backlogs continue at the assessments office at the Superior Court in Toronto. "If you can't get these backlogs cleared up and people wind up waiting and waiting for 18 months or whatever length of time it takes, it really sends the wrong message to the public [and] it hurts the ad- ministration of justice," says Robert Schipper. For its part, MAG has said there have already been improvements made and that the provincial ministry has "taken concrete steps to ensure that matters at assessments offices are heard in a responsive, effective and efficient manner." "In September 2016, the Ministry hired addi- tional assessment officers and co-ordinated ad- ditional assistance from other regions in Ontario to manage the workload in Toronto," said a MAG spokesman. "By taking these steps, we have seen a reduction in the time needed for a dispute to be reviewed." However, from the additional complaints, it's clear more needs to be done. LT The Hill Kady O'Malley Kady O'Malley

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