Canada on Brink of Constitutional Crisis : Proposed Drug Bill Sparks Critical Parliamentary Confrontation

Canada’s Parliament, normally a model of political stability and predictability, is suddenly at the edge of a constitutional crisis that endangers not only the government’s ability to conduct business, but also its relations with the United States, including a probable new trade agreement.

There are two major issues involved, one concerning political and commercial differences and the other dealing with the very essence of democratic government: the power of elected officials to determine policy.

The immediate dispute concerns a proposal by Prime Minister Brian Mulroney’s Progressive Conservative government to increase patent protection for pharmaceutical manufacturers, most of which are American-owned, against low-priced competition from generic producers.

Unique Situation

The proposal would give the mainline manufacturers a 10-year monopoly on new drugs. At present, a generic producer can copy a drug after only four years if it pays a 4% royalty, a situation unique in the industrialized world.

But the debate has widened from an argument over whether the proposed law will mean higher costs for the consumer to a critical confrontation between the elected House of Commons, which is dominated by Mulroney’s party, and the appointed Senate, which is controlled by the opposition Liberal Party.

The confrontation began after the House bill was rejected earlier this month by the Senate, which rewrote the measure and recessed for the summer after sending its version back to Commons.

The House then rejected the Senate version. Now, if the Senate does not relent, the measure will die. It would be the first instance in modern history of the House’s will being thwarted by the Senate.

Commons Holds Clout

This would violate no law, only a tradition accepted until now by all parties. As Liberal Party leader John Turner put it in 1985, “Where there is a conflict between the two houses, the will of the elected chamber, the House of Commons, prevails.”

From its inception in 1867, Canada’s constitutional system has allowed for two houses of Parliament, the 282-seat Commons and the Senate, whose 104 members are appointed by the government of the day. Since the Liberals were in power for most of the 20 years preceding the 1983 election of the Progressive Conservative government, the 65 Liberal appointees dominate the Senate.

The approval of both chambers is needed for any legislation to become law. In practice, however, the Senate has been seen as “a body of sober second thought,” a collection of politicians rewarded for past service with a large salary and an appointment that ends at age 75 or death, whichever comes first.

At most the Senate has been expected to delay House-approved bills, not kill them. In fact, it has been 40 years since the Senate moved to block a Commons bill, and on that occasion, the challenge was ultimately withdrawn.

Wide Ramifications

Sources in Mulroney’s office, asking not to be named, said the ramifications of the present dispute go well beyond the drug bill.

“If Senate leaders decide they can ignore the will of the elected members on this,” one official said, “then they can stop any bill they want.”

He pointed to pending emergency legislation that would tighten immigration laws and limit claims of refugee status, and said:

“The opposition to that bill is pure politics, which is OK in Commons, but it is inexcusable if the unelected Senate stops it. We can’t punish them in an election. They aren’t accountable.”

The implications of a constitutional deadlock go beyond Canada’s internal politics. Mulroney is in the midst of delicate negotiations with the United States over a free-trade agreement. These talks are already troubled by uncertainty as to whether the prime minister can guarantee that Canada’s powerful provincial premiers will implement any accord. If there is no assurance against Senate rejection of bills to carry out an agreement, it is not likely that U.S. negotiators will agree to Canadian demands that might be unpopular in Congress.

Further complicating matters is the link between the free-trade talks and the drug measure. Canadian officials will not say so for the record but acknowledge privately that the Americans agreed to the trade negotiations in part because of a Mulroney promise to reform the pharmaceutical protection law.

All this has resurrected calls for reform or abolition of the Senate. Mulroney says he proposed killing the “other place,” as the Senate is referred to in the Commons, in the course of negotiations last spring with provincial premiers over constitutional reform. However, he said, several premiers rejected his plan, preferring reform sometime in the future.

But even that prospect is unlikely. In the constitutional talks, Mulroney agreed to give up the power to appoint senators and turn it over to the provincial premiers. But any change in procedure would require the unanimous agreement of the premiers, an uncertain prospect.

‘Senate Bashing’

“The government is a little caught” by its own strategy, a senior aide to Mulroney acknowledged. “We would be prepared to abolish the Senate, but (the constitutional agreement) prevents that now . . . and Senate reform is a long-term prospect.”

Instead, he said, “we are hoping the Senate will change” its mind.

Mulroney’s best hope appears to lie with an increasing barrage of “Senate bashing” that could force the opposition, particularly Turner’s Liberal party, to retreat in the face of public anger over the Senate’s intervention.

In previous instances, when the Senate did no more than delay legislation, Turner has said that the House of Commons must prevail. But Turner is not popular with the general public nor with the party, and he has difficulty controlling his parliamentary caucus.

Turner’s ability to influence the Senate is further weakened by a sense in his party that Mulroney, already the most unpopular prime minister of this century, will lose even more ground over the drug issue due to public fear over possible increases in medical costs.

“People already don’t trust Mulroney,” a Liberal member of Parliament said. “They think he is selling out to the American drug manufacturers. They aren’t going to listen to him when he bleats on about the evil Senate when they see drug prices going up.”

This politics-above-all attitude is seen in the position of the New Democratic Party, which has long supported abolition of the Senate to the point that its members refuse to accept appointment to the chamber. But in this matter, NDP leaders wish the Senate well in its move to damage the prime minister.