Cannabis bill a valuable test for how new Senate could work policyoptions.irpp.org/magazines/february-2019/cannabis-bill-a-valuable-test-for-how-new-senate-could-work/
The government’s bill to legalize cannabis was sponsored in the Senate by an independent senator. Key lessons were learned in the process.
Although it is still early days in the reform of Canada’s Senate, the success of an independent senator and his colleagues in sponsoring the Cannabis Act (Bill C-45) legalizing cannabis shows that non-partisan action on legislation and institutional change in Ottawa are both possible. These are a few of the valuable lessons gleaned from the tumultuous period leading up to October 2018 when legal cannabis became the law of the land.
We share these lessons here to demonstrate that taking a position on major policies, including proposing amendments to government bills, does not have to be a partisan activity. Indeed, we learned that successful change often benefits from a non-partisan approach along with collaborative planning and strategy development, and continual communications.
That said, the Senate is a political institution and likely to remain so, given its important role in representing and accommodating divergent values, interests, concerns and needs in a diverse country. Yet there is considerable room for the Senate to evolve into a less partisan and more independent institution, a task that independent senators signed up for.
We will elaborate on those points, and on these key lessons from the experience: the value of continual communications and of sharing credible information; of addressing contentious issues; and of building collaborative relationships – all within the context of a modernized Senate.
But first, let’s review some context.
In March 2016, Prime Minister Justin Trudeau made his first Senate appointments drawn from recommendations by an Independent Advisory Board, and signaling a disruption in the long-standing duopoly of Conservative and Liberal political party rule. (There are, of course, other senators of differing backgrounds.) The prime minister asked only that the independent appointees work hard to build a less partisan Senate.
The Trudeau reform initiative had been prompted in part by a Supreme Court of Canada (SCOC) decision concerning limits on Parliament’s ability to reform the Senate. Trudeau’s Conservative predecessor Stephen Harper had been keenly interested in an elected Senate and term limits, but the SCOC had warned that such reforms required Constitutional changes approved by Parliament, plus two-thirds of provincial legislatures representing at least 50 percent of the population. This meant immediate Senate reform must instead emerge from within the institution.
Trudeau had already taken early steps in reform when, as Liberal party leader, he essentially abolished the Liberal caucus in the Senate. His bold decision meant that, in a dramatic break from past experience, sponsorship of a major Liberal government bill in the Senate would no longer fall automatically to a member of the government caucus. (Trudeau’s decision led to initial bitterness, but some Liberal senators may have welcomed the freedom from constraints of caucus solidarity.)
Independent Sen. Tony Dean (co-author of this article), became sponsor of Bill C-45 in the Senate. Dean brought a policy perspective consistent with his role as an independent senator and with his previous career as a professional, non-partisan public servant. Essential to that was ensuring a deliberative approach was taken, with a thorough understanding of policy issues contained in the complex bill – including public health, social and justice policy. Statistics Canada estimated that Canadians spent $5.7 billion on cannabis in 2017, with 90 percent of that on illegal, non-prescription products.
The cannabis legislation was highly polarizing and politically contentious. Tough questions were raised in the Senate and ultimately, a number of significant amendments to the bill were proposed by senators, including independents. Legalization and regulation of cannabis had been a campaign promise by the Liberal party, which had won a large majority in the 2015 election and would soon face another national vote. Therefore, all political parties had a considerable interest in Bill C-45 as it arrived in the Senate. This intense political interest was reflected in a call by Conservative MP and party Leader Andrew Scheer for Conservative senators to block or delay Bill C-45. That call came at the time of a vote on second reading – a vote on principle held well before the bill had even been studied by senators.
While Bill C-45 was itself significant, we realized it also provided an opportunity to explore reforms to modernize the Senate’s culture, procedures and structure. In our work on the bill, we experimented with approaches that complemented the principles and purpose of the Independent Senators’ Group (ISG), as well as the vision of a modern Senate – one reflecting transparency, independence and collaboration. For example, we realized that early stakeholder engagement was important, as were communications strategies. We also advocated for structured Senate debates with timelines and themes, and engaged with interested parties outside of government as well as with regular Canadians.
All of this work on the Cannabis Act can be viewed through five lenses: policy, strategy, education and information sharing, communications, and relationship building.
Policy
The first step was to identify Bill C-45’s policy objectives. What need was the government addressing? What were key issues and challenges? What did the public, the medical and justice communities think? What impact might the legislation have on various jurisdictions, existing laws and the Constitution?
Then, given its scope and complexity, we divided the legislation for research and analysis purposes into four pillars:
- health and consumption (users and impacts);
- justice (consequences of consuming or selling outside the law; impacts of cannabis criminalization in society);
- production (who could cultivate cannabis in what circumstances); and
- distribution (who could sell cannabis in what circumstances).
This helped us to better understand the context for contentious issues. For example, we looked at consumption patterns when considering the age of legal access to cannabis, which some argued should be set at 25 years. Given that the largest number of Canadian users are 20 to 25 years old, establishing 25 as a minimum would tie a large number of users to illegal markets, where they can only guess about health issues such as potency and contaminants.
Strategy
Within days of Bill C-45 arriving in the Senate, our policy-based, information-led approach collided with hard-nosed opposition politics. We therefore needed a strategy to respond rapidly to changing debate and political maneuvering while staying focused on collaborative policy considerations combined with Senate modernization. Communications planning was quickly elevated from an afterthought to a daily priority.
Well before the bill arrived in the Senate, our office had been sharing generic information with all senators about the proposed legislation, including government materials used to explain the bill in the House of Commons, and details from an expert task force that contributed to its design. We also made our office research available to all senators. While this seemed obviously part of a more transparent and collaborative Senate, such information sharing was apparently rare and was met with considerable surprise.
Although the ISG does not take official collective positions on bills, smaller groups meet on common interests. For Bill C-45, ISG senators collectively developed some of our strategies, although opinions ranged from nervous/concerned/opposed, to those comfortable with cannabis legalization so long as they thought the policy and legislative prescription made sense.
Strategy and analysis meetings focused on controversial policy issues, such as home cultivation, age of legal access, the five-gram “allowance” for youth under 18, Indigenous concerns about community health and addictions, and public education. Rigorous and sometimes testy discussions were supported by input from medical experts, enforcement professionals and harm reduction specialists.
Team leads were developed with independent senators, aligned with key issues: one senator led discussions on Constitutional and federal-provincial jurisdiction; another led on Indigenous considerations; one prioritized mental health; another took on possession limits and home cultivation.
This collaboration among independent senators developed, in part, as a response to a highly effective and organized Conservative caucus. But it was also consistent with the group’s principles. The collaboration opened space for discussion within the ISG to identify shared objectives for amendments and observations, and promoted participation in committee and the chamber.
We also borrowed ideas, such as setting calendar deadlines for key Senate votes on Bill C-45. This came from a successful approach used by senators in the 2016 debates on the Medical Assistance in Dying legislation, part of an effort by independent senators (plus a handful of Liberal and Conservative reformers) to modernize outdated and often counter-productive Senate rules and processes that made little sense in a more independent, less partisan and inclusive Senate.
Education and Information Sharing
Sharing information and research among colleagues and staff was important to our success, as was helping senators organize their work based on evidence, and discerning what material was useful. Once policy objectives were identified and the bill divided into manageable pieces, we could pinpoint hot-button issues and understand where greater clarity and impartial information would be helpful for all senators, regardless of political affiliation.
Mail-outs to senators focused on contentious issues discussed in committee, in the chamber, and in the media. Short briefing notes, often demand-driven, were effective in responding to questions from senators. Our approach differed from more traditional practices, where controversy might have been minimized or downplayed in caucuses. Instead, we acknowledged contentious points, and organized information sessions and technical briefings where senators could also voice concerns. Trips to licensed cannabis production facilities were arranged so senators and staff could gain a tangible sense of legally produced and regulated cannabis.
Library of Parliament staff helped to develop a series of reliable and fact-checked research papers on key issues, and provided impartiality in a context in which government-sourced data was contested.
Communications
Communications strategies were partly informed by work from Paul Thomas of the University of Manitoba, who has highlighted the importance of communication, persuasion, enlisting support and negotiation as key elements in the legislative process.
Outreach targets included pro- and anti-cannabis reform groups, the law enforcement and medical communities, educators, members of the public and the media. Opinion columns were developed on key policies and social media platforms used to share thoughts on major issues. Subsequently, media coverage of the entire issue increased.
We found it was important to repeat that the key objective of Bill C-45 was to address important existing public health challenges, and that the legislation wouldn’t cause young people to start consuming cannabis. Rather, it was designed to address over-consumption by young Canadians.
We also responded easily to the Conservative leader’s call for his senators to delay or block the proposed legislation, characterizing that as an effort to frustrate careful consideration of signature government legislation by the chamber of sober second thought. This buttressed our case for organized, evidence-based debates on proposed legislation.
Relationship Building
From the outset, relationship building with key players was critically important. Those included ministers, political staff and senior public servants from lead departments, research staff in the Library of Parliament, academics, and mental health and harm-reduction professionals. Investing time to build trust and demonstrate integrity was crucial, as was mutual respect for each other’s institutional independence. These relationships gave our office direct lines of communication to obtain verified information in a timely manner – and proved to be especially important during committee hearings and debate in the Senate, particularly concerning contested policy objectives or data.
Even with solid relationships, boundaries must be respected. Senators and cabinet ministers have busy schedules and must manage multiple priority files simultaneously. Yet several ministers spoke to the Senate and to multiple Senate committees to an unprecedented extent concerning Bill C-45. At times, this unfortunately devolved into political theatre and in some cases created tension between the Senate and the government – a lesson perhaps for those who have joined the Senate more recently.
All of these lessons learned throughout the Bill C-45 process have emphasized the value of a more independent, non-partisan Senate. Such a body can continue the work of conducting substantive policy analysis and legislative development via transparent and effective legislative processes, with a view to obtaining the best possible outcomes for Canadians. We believe that such an outcome was obtained with the success of Bill C-45.
Senator Dean would like to thank Dr. Paul Thomas of the University of Manitoba for his review and commentary of this paper.
Photo: The Senate of Canada building and Senate Chamber are pictured in Ottawa on Feb. 18, 2019. The Senate will remain in what is Ottawa’s Old Train Station during the renovations of the Parliament Hill Centre Block. CANADIAN PRESS/Sean Kilpatrick
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