Law Times

Page 6 June 4, 2018 • Law Times www.lawtimesnews.com Successful private members' bills need fortitude BY KADY O'MALLEY F or devotees of the federal parliamentary system, it's like being confronted by a particularly observant child who has suddenly spotted a glaring hole in Santa Claus's Christmas eve alibi: that moment when a rookie or even a not-so-new-to-the-game backbench MP realizes that their chance of successfully shepherding a bill through the House and Senate to become the law of the land lies somewhere between "slim" and "none" on the parliamentary probability scale. It's at least partly our fault, of course — we, in this case, being the rose- coloured-glasses-half-full Pollyannas who go on about how much more eq- uitable the current system for handling private members' business is than was the case during the dark days before the 1985 McGrath committee report. Among the changes brought in as a result of that review: guaranteed time slots to debate private members' pro- posals, rather than allowing it to be pre- empted by government business, and making all such bills and motions vot- able unless there were specific grounds not to allow it. Further reforms followed in subsequent years, and it's fair to say that a non- government member of the 42nd Parliament is consider- ably more likely to at least get to make their pitch to their Commons colleagues than their 1970-era counterparts. There are, however, still more snakes than ladders when it comes to getting from zero to even a preliminary vote in the House, starting with the lottery to estab- lish the priority list for presenting bills and motions to the House after the initial introduction, which, for MPs who end up below the 200 mark, effectively ends any chance they might have of getting a bill past first reading. Even those MPs fortunate enough to land a relatively high spot on the list will have to shoehorn their pet project into the strictly delimited format for votable legislation: It has to deal with an issue under federal jurisdiction, of course, but it can't stray into a question that has already been decided or is currently be- fore the House; it can't include an obvi- ous conf lict with the Charter of Rights; nor can it impose a cost on the federal treasury unless a minister is willing to sign off on a royal recommendation. Once they make it through the vetting process and are officially added into the rotation, MPs will have to work the benches on both sides of the aisle to muster up the necessary support, which, in a majority setting, means convincing the requisite num- ber of government-aligned MPs to back their play even if it gets a thumbs down from Cabinet. Private members' votes are, at least officially, considered to be "free" unless a party decides to exert its authority over its caucus. But if the government en- courages its members to reject the pro- posal, the sponsor will inevitably face a tough battle in attempting to get their colleagues to ignore that advice. If a bill opposed by the executive does manage to make it through second reading, the government can always use its majority clout to rewrite it at com- mittee, even over the objections of its sponsor. And, after all that, if a bill survives through third reading in the Commons, it goes off to the Senate, where, barring a helpful Upper House sponsor prepared to make it their mission to get it through the stages of sober, second thought, it will almost certainly die on the order paper. Given all that, it's both surprising and heartening to see so many MPs coming forward with carefully drafted bills and thoughtfully worded motions. For those MPs, the act of putting their proposal on the parliamentary re- cord is, itself, a victory: It may spark dis- cussion outside the Chamber, after all, or even inspire the government to put a similar policy forward under its execu- tive aegis. The trick is to not lose faith in the system or the underlying institution — even if it does seem rigged against you — while crossing your fingers that you and your bill may be the ones to beat the odds. 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. COMMENT u EDITORIAL OBITER By Gabrielle Giroday ©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reli- ance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. LT.editor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $205.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $199 + HST per year for online only. Single copies are $5.00. Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Keith Fulford at .............. 416-649-9585 . . . . . . . . . . . . . . . . . . . . . . or fax: 416-649-7870 keith.fulford@thomsonreuters.com SALES AND BUSINESS DEVELOPMENT Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Sales Manager Paul Burton ............................................ 416-649-9928 paul.burton@tr.com Consultant, Strategy and Business Development: Ivan Ivanovitch ...................................... 416-887-4300 ivan.ivanovitch@tr.com Business Development Consultant: Kimberlee Pascoe .................................. 416-996-1739 kimberlee.pascoe@tr.com Account Executive: Steffanie Munroe ................................... 416-315-5879 steffanie.munroe@tr.com Law Times Thomson Reuters Canada Ltd., One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com LT.editor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . Jacqueline D'Souza Electronic Production Specialist . . . Derek Welford Mental health T here's a kinder, gentler way mental health is being approached by the legal profession. Late last year, research by two University of Toronto so- ciologists created an extensive buzz in the legal community and beyond, reporting that the more lawyers got paid, the more likely they were to feel depression and experience dissatisfaction with their career choice and work-life balance conf lict. A recent Law Society Tribunal ruling pointed a finger at the Law Society of Ontario for its failure to accommodate a lawyer, Jeffrey Burtt, who was dealing with depression while investigating a com- plaint against him. Burtt was called to the bar in 1990, but he only ran into issues with the regulator in recent years. Burtt said an in- vestigation by the regulator over allegations he breached the Rules of Professional Conduct caused him to "freeze," and Bencher Larry Banack agreed, saying investigators should have been aware of medi- cal assessments from a previous disciplinary encounter that should have alerted them to the need to approach his case differently. "Mental illness is a medical condition, not a personality defect. A major depressive disorder is a debilitating illness that must be recog- nized as such," said the ruling. Notably, in his ruling, Banack went one step even further — call- ing on funding for a duty counsel system for lawyers involved in dis- cipline matters. "[It] is now time for the Society to implement a funded, permanent duty counsel system for the benefit of all licensees. The Law Society should not be complacent with its reliance on an institutionalized Volunteer Duty Counsel programme. "The very serious potential outcomes of a dis- cipline proceeding, which include licence revoca- tion, should not depend upon the vagaries of a vol- unteer lawyer being available and able to fulfill the duties of counsel in opposition to the well-funded, full-time, professional group of Discipline Counsel trained by and working for the Law Society," said the ruling. All lawyers should think carefully about this option. If societies are judged by how they treat their most vulnerable, then this might apply. LT The Hill Kady O'Malley Kady O'Malley

• Cover