Adam Dodek is co-director of the University of Ottawa's Public Law Group and author of the forthcoming second edition of The Canadian Constitution.
First comes the budget, then comes the omnibudget bill. Over the past decade, Canadians have grown accustomed to governments introducing massive "budget implementation bills" that make a mockery of parliamentary democracy. Now that the Trudeau government has delivered its first budget, will it be able to resist the temptation to follow in the footsteps of its predecessors?
The Trudeau government has promised to be different. In its 2015 election platform, the Liberal Party promised not to resort to the use of omnibus bills to avoid parliamentary scrutiny.
This promise will now be tested because omnibudget bills are not only the worst type of omnibus bills, but also the most tantalizing for governments.
Omnibus wasn't always a dirty word. Such bills are as old as Canada itself. As the late Herb Gray explained in 1988, when he was Opposition Leader, an omnibus bill is simply one that creates or amends different statutes but which has one basic principle or purpose which ties together all the proposed amendments. This is supposed to make the bill intelligible for parliamentary purposes. The key word here is "intelligible."
Omnibus bills became controversial only fairly recently in parliamentary history.
The first recorded objection in the House of Commons to an omnibus bill was in 1953 and we have to wait until Pierre Trudeau's omnibus criminal law bill in 1967 for any further serious objections.
In the 1970s, objections became more frequent, reaching their apex in 1982 with the famous "bell ringing" incident when the Progressive Conservative opposition succeeded in shutting Parliament for two weeks to protest against the Liberals' omnibus energy bill.
Omnibus bills and opposition to them continued during the tenures of Brian Mulroney and Jean Chrétien. However, they morphed into an unintelligible and obscene format when they were combined with budget bills, thus producing the obscene "omnibudget bills."
Until recently, budget bills were a rather drab affair. Parliamentary expert Ned Franks found that between 1995 and 2000, the average length of budget bills was 12 pages. In 1994, Reform MP Stephen Harper complained about the omnibus nature of the Liberal government's budget implementation bill, which was 24 pages.
Omnibudget bills began under the minority government of Prime Minister Paul Martin with bills of more than 100 pages and grew to mammoth proportions under Prime Minister Harper: The most egregious topped 800 pages. The Harper government went beyond the accepted understanding of an omnibus bill by tacking on subjects to its budget bills that had nothing to do with the budgets (such as changing the Supreme Court Act in the face of the challenge to the government's nomination of Marc Nadon in 2013).
These bills are an affront to parliamentary democracy because they prevent the House and the Senate from doing their job to adequately scrutinize legislation. The bills arguably infringe on the privileges of individual MPs, despite rulings to the contrary by successive speakers of the House. Instead of standing up for the rights and responsibilities of individual parliamentarians, successive speakers have allowed omnibus bills to persist and grow to offensive proportions.
Fortunately, unlike many other desperately needed democratic reforms, fixing omnibus bills is relatively easy: It doesn't require a constitutional amendment, a referendum or even a law. All that is required is for the government to take the initiative and change the House of Commons rules of procedure to restrict the use of omnibus bills.
That's the easy answer. But there is also a brave solution and a bold one as well.
The brave solution would be for a speaker to stand up for the rights of parliamentarians and draw a line in the sand at omnibudget bills and rule them out of order. The bold solution would be for a newly independent Senate to assert its independence and refuse to consider omnibus House legislation that cannot be properly scrutinized. I doubt that is the sort of independence the Trudeau government desires from a reformed Senate. However, it may be reason enough to spur the government into acting, sooner rather than later.