Thursday, October 08, 2009

Crime and the Senate

Reading news coverage this morning leaves me pondering just what role many media and politicians expect the Senate to play in our democracy and whether, all things considered, blowing the thing up may just make more sense.

I’ve read many headlines this morning alleging that Liberal senators are “gutting” the latest Conservative pander/get tough on crime legislation: the bill dealing with ending the 2-for-1 credit for pre-sentencing confinement.

In short (or not), every day served in jail before someone is actually convicted counts as two days off the sentence they’re given, the thinking being they hadn’t been found guilty of anything yet, and it’s the poor that are more likely to be confined pre-conviction because they can’t afford to make bail.

The Conservatives proposed legislation to end the 2-for-1 credit, and make one day count as, well, one day. They say defense attorneys are abusing the system by dragging-out cases to maximize the pre-conviction credit, and, rawrr, the time sentenced should be the time done. It received all-party support and then went to the Senate, where the drama began.

The Senate heard from expert witnesses who said the bill was unconstitutional. The Senate decided to amend the bill to 1.5 days credit for pre-sentencing time, with judicial discretion for 2 days. The bill is expected to the House, where the Senate changes can be over-ruled and the legislation reverted to its original form.

This has triggered much predictable braying from the Conservatives, with the NDP jumping-in with their Conservative friends for good measure. Unelected Senators shouldn’t change House legislation, they complain. The Liberal Senators are soft on crime, they bellow. Oh, and Michael Ignatieff is a weak leader because Liberal Senators don’t do exactly what he says.

I don’t want to debate the merits of the legislation at the moment. Rather, I want to look at what this episode says about the role we expect the Senate to play in our democratic system. Because, like it or not, what the Senate did here is exactly what it is supposed to do: it examined the legislation, heard from learned witnesses, considered their concerns, and made amendments.

The House has the right to over-rule them, and it probably will but the Senate didn’t overstep its bounds at all. It did its job: sober second thought.

Then there’s the attacks on Ignatieff’s leadership here: are we really saying that the party leader should insist on rigid discipline and party-line votes from its Senators on every piece of legislation? That doesn’t make sense, it’s not how the system has worked or is meant to work.

And if the Senate is to be a party-line institution, a do whatever the House says institution that can’t amend legislation, why the heck would we keep it around anyway?

Only the NDP supports abolition, Harper supposedly want to reform the Senate. One wonders, to what end, though? If it was elected Liberal senators amending his legislation, would he find that more legitimate? I find that unlikely. Is he going to expect every elected Conservative Senator to toe his party line, or might they have other ideas about the role of an elected, equal and effective Senate?

And, while I do favour Senate reform and while I don’t want to sidetrack into a debate on the merits of this particular crime legislation, let me just say that this could well be a case-study for why the Senate is here.

You have a house of elected MPs who are so dammed scared of the “soft on crime” label that they often let their better judgment be swayed by political considerations. As a check and balance we have a Senate, the chamber of sober second thought that, not having to fight for election seemingly every year, is free to listen to experts, consider legislation on its merits, and made decisions based on facts, not political positioning.

Unelected as they may be, that freedom at times seems like a pretty good thing. Would six-year terms for Senators help achieve that for elected Senators? Perhaps. But that freedom is certainly something worth preserving somehow, in my view.

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ChrisInKW said...

The last thing we need is to have sober second thought inebriated by partisan politics.

Barcs said...

To deal with your example... why do we give any credit for time served before sentencing? I mean I know you are a fine upstanding citizen Jeff, but if you were falsely accused, spent some time behind bars and then were found innocent. What credit do you get?? "Opps sorry", and a pat on the back if you are lucky. So why does someone who is actually convicted get treated better over that time than you do?

To the points on the senate.

I used to believe in the necessity of an unelected unaccountable senate to keep controls on the House. A chamber of elders to carefully weigh the days events for the better of Canadians as it were.

But the problem is; I learned too much about it.....

I learned that most appointees are part hacks through decades of both shades of governments.

I learned that people abuse the fact that they can't really be fired. Lavish expenses, lots of days where many don't even show up for votes.

I learned that the party line you speak of still exists in the senate rather than voting for conscience.

Even the fact that Mulroney was able to use a little known mechanism to temporarily expand the senate with a few extra partisans than normal.

So given all that (and there is more) I believe that that system doesn't work as intended.

I like that the separation of powers that exists... absolute power corrupting absolutely after all...but a second opinion is always of value.

For those reasons I would like to see an elected senate but elected on a rolling date. ex a 6 yr term 3 groups .. one elected every 2 years.. or even an 8 yr term....

Appointment for life just shouldn't cut it in an democracy.

Barcs said...

"The last thing we need is to have sober second thought inebriated by partisan politics."

Apparently you need to look at who does the appointing and who they appointed over the last 50 or more years.

Jeff said...

To deal with your example... why do we give any credit for time served before sentencing?...

You make some points, barcs, but I think you may a better argument for doing something to compensate the wrongly accused then you do to offer no/minimal credit for the guilty.

On the Senate, as I've written in the past reforming it is a can of worms that requires a fundamental rethink of the role of the institution. As I think more about it though, I really ponder the necessity of a bi-cameral system with two elected, partisan houses. Such a system would remove the checks and balances/sober second thought component, so why not just save the money and make it a Price Choppers?

ChrisInKW said...

"Apparently you need to look at who does the appointing and who they appointed over the last 50 or more years."

As an (exceptional) example, Paul Martin made 17 appointments of which 12 were Liberal, 3 Progressive Conservative and 2 NDP.

I agree the appointments process is woefully skewed towards the incumbent ministry's inmost inclinations and in modern times the gentlemanly respect for such institutions has diminished. However, injecting the Senate with the popularity contest of electoral races seems retrograde to the purposes of an effective check on a Commons majority.

ChrisInKW said...

"why not just save the money and make it a Price Choppers?"

Sounds good to me! :o)