Bill S-201 and the breakdown of caucus unity

The proposed Genetic Non-Discrimination Act set many balls rolling

Private Members’ Business offers the occasional opportunity for a backbench to collectively disagree with their leadership. One of the sharpest examples of this in my four years was Bill S-201, a Senate-originating Private Member’s Bill called, simply, “An Act to prohibit and prevent genetic discrimination”, which laid the groundwork for later chasms and internal opposition.

The bill was designed to ensure that companies could not force genetic tests nor use the results of genetic tests to negatively impact employment, services or, for example, insurance coverage, and open the door for people to seek genetic testing for, for example, improved medical outcomes, without fear of misuse of the resulting information. It had widespread support in all parties, but not from Cabinet. 

The government, on the advice of Justice Minister Jody Wilson-Raybould and visibly not shared by all members in spite of a pronounced effort at cabinet solidarity, believed that the bill infringed on provincial rights and therefore had constitutional issues. Cabinet and the leadership team worked hard to convince Liberal caucus members that this bill had to be opposed with arguments widely viewed as flimsy and dishonest, but Members pushed back, with Jewish members in particular making obvious arguments about the impact of not passing a law that prevented companies from using genetic markers to discriminate.

The end result was a public walloping of the government not once, but four times, in an absolutely avoidable egg-on-the-face moment, with the final vote on March 8th, 2017 being 222 in favour, 60 opposed. Those were the ten members of the Bloc, seeing it as an infringement on provincial powers, and just 50 of the 187 Liberals. The 50 Liberals, it was said around the Hill, were “Cabinet and those working hard to join it,” a play on the “Middle class and those working hard to join it” tagline the government had adopted. 

The comment proved prescient - of the 50 Liberals to vote against Bill S-201 at 3rd reading that day, 22 were Ministers already, with 9 members of cabinet, including the Prime Minister, having been absent for the vote. Of the remaining 28 Liberals to vote in favour, 12 eventually joined the Privy Council, 11 of them as Ministers, and another has since been named to the Senate. Just 5 of the no-votes were backbenchers, none of whom have yet gone to Cabinet, and only two of which are still in Parliament – Sonia Sidhu and Anju Dhillon. 21 were Parliamentary Secretaries, with the two remaining being the Whip and the Deputy Whip. Of the 21 PSes to vote with the government, Omar Alghabra, Terry Beech, Bill Blair, Gudrid Hitchings, Kamal Khera, Marco Mendicino, Marc Miller, Joyce Murray, and Ginette Petitpas-Taylor all became Ministers, and Steven MacKinnon joined the Privy Council as Chief Government Whip, and both Pablo Rodriguez, whip at the time, and Filomena Tassi, deputy whip at the time, also eventually joined cabinet.

That isn’t to say any of them should or should not have been in Cabinet, but that toeing the government line – even when it’s the obviously wrong thing to do and nearly the entire back-bench has revolted – is a good career move.

It was also a key moment in the breakdown of the Liberal caucus’s relationship with Jody Wilson-Raybould. The call to have this fight with caucus was seen as her decision and suggested a tone-deafness and unwillingness to be open to the views of caucus in the then-Minister of Justice. The Supreme Court ruled three years later, on July 10, 2020 in decision “2020 SCC 17” that the law was within federal jurisdiction as a matter of criminal law, not a matter of contract law which would have made it provincial, and was the basis of the government’s opposition. The decision was, however, a rather narrow 5-4 split, demonstrating a bit late that neither side in this internal caucus fight was straight-out wrong.

The fight over S-201 had opened a chasm and, as the well-documented events since then have shown, these divisions were never addressed, much less repaired. It also gave Caucus a much-needed feeling of empowerment, that it was possible to convince our own government to change an incorrect position. While Private Members’ Bills are one of the few sources of direct power for backbenchers, those same MPs, if sufficiently motivated, can have a silent power on government bills that the public is rarely aware of.

In the 42nd parliament, Finance Minister Bill Morneau, who had made his money in Morneau-Shepell, a Bay St company specialising in labour relations and pension services, introduced bill C-27 “An Act to amend the Pension Benefits Standards Act, 1985”. The innocent-sounding bill’s purpose was to destroy Defined Benefit pension plans in Canada by removing them from the public service and replace them with “defined contribution” pension plans, which essentially completely derisk the employers. According to Morneau’s staff, it was essential to saving Canada Post.

This effort belied the government’s pro-union messaging. After passing C-7 to give the RCMP the right to unionise, and rescinding controversial Conservative anti-union bills C-377 and C-525 from the 41st parliament, cabinet first tried to destroy the public service’s pension system and then brought in back-to-work legislation when postal workers went on strike in 2018. I was one of only a handful of Liberal MPs to vote against that bill.

Backbench MPs in the government caucus individually and collectively made it clear to Morneau that Bill C-27 was a non-starter and would result in a public caucus revolt; and the bill was quietly left to die on the order paper — the list of bills currently up for debate, with no procedural way to withdraw it. It spent years rotting there, attracting an endless flow of angry correspondence from constituents, but it was ultimately killed by the government’s own back bench.