Some Kind of Monster: A Brief History of Harper’s Big Fat Omnibus Bills
Bill C-51 is the most polarizing issue in Canada right now. It has sparked a national debate about surveillance, terror, and judicial oversight, but it is also the most recent in a long line of mind-numbingly long Conservative bills.
Bill C-51 is the most polarizing issue in Canada right now. It has been criticized by over 100 legal experts as "a dangerous piece of legislation" yet polls suggest widespread support across the country. At the heart of this controversy is the fact that C-51 will give Canada's spy agency, the Canadian Security Intelligence Service (CSIS), extensive but vague new powers, namely to "disrupt" terrorist activity at home and abroad with very little supervision or judicial review.
But this national debate about surveillance is also a distraction from the fact that Stephen Harper is once again using a monstrous bill to simultaneously change dozens of pieces of legislation while severely limiting Parliament's ability to have a meaningful debate about these issues.
Bill C-51 is an omnibus bill, meaning that it is creating two laws but also amending roughly a dozen others from the Department of Fisheries Act to the Criminal Code to the Income Tax Act.
This mechanism may seem inherently undemocratic, but it isn't. Omnibus bills can be a pretty useful tool for speeding up our sometimes cumbersome legislative process and they can also be an instrument of social change, like the 126-page Criminal Law Amendment Act introduced in 1967 by Pierre Trudeau when he was minister of justice.
That bill decriminalized homosexuality, anal sex between adults (although it's still illegal if you are not a grown-up), abortion, and contraception, prompting Trudeau's famous "there's no place for the state in the bedrooms of the nation" soundbite. It was considered massive at the time, but at least there was a unifying thread—modernizing Canada's puritanical Criminal Code.
Fast-forward five decades and omnibus bills are now being championed by the Conservatives, who have passed eight of them since winning a majority government in 2011.
Mike Spratt is a criminal lawyer from Ottawa who has testified numerous times before House and Senate committees about the detrimental effects of omnibus legislation on the criminal law landscape in Canada, from increasing jail time for minors to minimum jail sentences for possessing more than five marijuana plants.
"I have appeared a bunch of times before Parliament on these bills—they are insane," Spratt told VICE. "These omnibus bills prevent meaningful study. Critics are demonized—you are either with us or against us. The government says these crime bills are about keeping the public safe but quite often the evidence shows that the opposite is true. That demonstrates either insanity or crass politicking. I don't know which is worse."
"C-51 is a good example of omnibus legislation. It is obviously responding to very serious events and national security concerns, but when you cloak a bill in rhetoric and link it to fear and you demonize those who may have contrary opinions, which are based on evidence... it's very hard to subject these bills to rigorous and intellectually honest criticism."
But Bill C-51 is not the first time this tactic has been used to muffle debate.
In 2012, the Conservatives rammed the Jobs and Growth Act (Bill C-45) and the Jobs, Growth and Long-term Prosperity Act (C-38) through Parliament with almost no time for meaningful debate. With a combined length of 900 pages, they contained over 1,200 clauses which amended 135 unrelated federal laws affecting everything from nuclear safety to judges' pensions to the Seeds Act.
In doing so, C-38 and C-45 also became catalysts for social change but in a far more perverse way than Trudeau's libertarian crime bill because buried within those 1,200 clauses were significant changes to the Indian Act, Navigation Protection Act, and Environmental Assessment Act, which have had a profoundly detrimental impact on aboriginal land and fishing rights.
These "budget" bills were perceived by many in Canada's aboriginal communities to be the last straw in a long battle with a federal government that has systematically and unilaterally reneged on legally binding treaties. This frustration led directly to Idle No More, one of the most vital political movements within Canada in recent history.
Bob Rae is the former premier of Ontario and one-time interim leader of the federal Liberals. "Use of omnibus legislation has become abusive. We've seen several budget bills that are over 400 pages long and that cover everything from budget to the environment," he told VICE.
Rae has retired from public life, but unlike most political veterans who end up working for Power Corp. or Bay Street law firms, he has chosen to practice aboriginal law and has acted as chief negotiator for the Matawa First Nations group seeking reconciliation with the Ontario government.
"We need to achieve reconciliation with First Nations," Rae says. But the mind-numbing length of these bills is proving to be a huge obstacle to that.
"The process has been badly abused by the recent government. Major changes in environmental legislation came through budget bills which makes it very difficult to debate or divide these amendments. And when you consider the importance of the protection of land and water to First Nations—who believe that treaties were never intended to undermine these rights but to protect them—then it's just unlawful."
Nor is it inconceivable that C-51 could have a direct impact on First Nations groups who frequently protest fracking and pipeline projects that violate legally binding treaty rights. A recently leaked RCMP report describes these groups as "violent aboriginal extremists."
When asked about the impact that the broadly worded Anti-Terror Act could have on aboriginal or environmental groups, Rae brought the issue back to a lack of oversight: "The question really is, does a protest represent a threat to 'security'? The risk is always there that authorities will interpret the act too broadly, which is why the accountability and review questions are so important."
So while omnibus bills are not inherently undemocratic, they can, and are, being used as a legislative sledgehammer. Even Harper agrees with that, or at least would have when he was a starry-eyed Reform MP for Calgary West who went on tirades against the dangers of omnibus bills during parliamentary debate in the 90s:
"We have a chance to right some of the wrongs and some of the questionable practices we have fallen into, in particular the practice in recent years of presenting omnibus legislation with respect to budgetary matters." Stephen Harper, MP
"I submit to you that it has become a standard practice with governments to bring in omnibus legislation following every budget under what we might call the kitchen sink approach." Stephen Harper, MP
"In the interest of democracy I ask: How can members represent their constituents on these various areas when they are forced to vote in a block on such legislation and on such concerns? Stephen Harper, MP
Spoken like a true democrat.
Conservatives now defend their use of omnibus bills by pointing out they have been used by other governments, or more often, by saying Canada's economy requires the quick passage of these big bills.
So how is it that in the space of 15 years Stephen Harper can go from staunch critic of mega-bills to their biggest proponent in parliamentary history? That's a complicated question. Better call Saul.
John Ralston Saul is one of Canada's foremost intellectuals and author of The Comeback, a recent book about the legal triumphs of aboriginal groups and the failure of our governments to recognize reconciliation as "the greatest issue of our time."
"These enormous anti-democratic bills have nothing to do with the Canadian tradition of what used to be called Omnibus Bills, which simply gathered together legislation dealing with a single area of interest such as trade or criminal justice reform," Saul told VICE. "And they aren't budget bills. They are like a thick jungle hiding dozens of dangerous traps."
In fact, in The Comeback, he goes as far as comparing Harper's reign to the tyrannical but efficient regimes of Napoleon, Mussolini, and Peron.
"Their view was that debate wasted precious time and brought unplanned results. They argued that patriotism, along with centralized power, the heavy use of secrecy, and an emphasis on self-interest should replace such things as debate, the public good, and the concept of citizen responsibility." Sound familiar?
"Bill C-51 has already been questioned or condemned by a very wide range of legal and other experienced figures who are known to believe in democracy and the rule of law. They come from the right, the centre, and the left. The biggest concern today in western democracies is that governments are attempting to make use of fear in order to increase their prospects in elections."
And the fear-mongering is definitely a tactic that the Conservatives have not hesitated to employ is the C-51 debate.
"The most worrying thing is that the principal outcome of a strategy, which was clearly formulated by Bin Laden, has led western democratic governments to cut back on free expression and citizens' rights," said Saul. "Our own democratically elected governments have set about undermining the role of citizenship and the complexity of democracy. This is exactly what people like Bin Laden wanted."
Unregulated spies, aboriginal rights, and mandatory jail for marijuana possession might all appear unrelated on the surface, but looking at these issues from the omnibus perspective shows a direct link between political hot potatoes and the Harper government's willingness to avoid debate and ram the bills through the House. And unless the rest of Canada mobilizes as effectively and as vocally as aboriginal groups did during Idle No More, that tactic is unlikely to change.