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Debate concerning Bill S-8
An Act respecting the selection of senators

Extract from the Hansard, 40th Parliament, 3rd session: June 17, 2010  2

with personal comments inked in

Resuming debate on the motion of the Honourable Senator Brown, seconded by the Honourable Senator Runciman, for the second reading of Bill S-8, An Act respecting the selection of senators.  3

Hon. Bob Runciman: Honourable senators, I hope my comments will not throw too much cold water on the warm feelings that Senator Campbell referenced earlier.  4

Senator Runciman is simply referring to a comment made by Senator Campbell in a debate that took place earlier that day ("Honourable senators, in keeping with the love that has been building in this place as we move hand in hand together toward the summer, I rise in support of Bill C-24 ...."  n4

Honourable senators, I rise today as the seconder of Bill S-8 to offer a few comments on why I believe this bill merits your support.  4-1

At the outset, I want to compliment the mover of the legislation, Senator Bert Brown. Senator Brown has been tireless in his efforts over many years to pursue the elusive goal of Senate reform. Whether or not you share his view, you have to admire his tenacity and commitment.  4-2

Two weeks ago, my colleague, Senator Nolin, outlined a number of reasons why he was not prepared to support Bill S-8. While I disagree with his position, I commend him for exercising the independence that should be the hallmark of this institution.  4-3

We have also heard disagreement, through an inquiry, with the thrust of Bill S-8 from a much less surprising source, the Leader of the Opposition in the Senate, Senator Cowan.  4-4

Senator Nolin talked about the need to respect the wishes of the Fathers of Confederation. Let us consider that for a moment. The primary purpose of this house is to give a voice to the regions in a country vast in size but sparsely populated outside of Central Canada, to give a reason for those far-flung areas to buy into the idea of Canada as a nation that would respect their interests and to make the Parliament of Canada representative of the whole country. Those areas that could not command the votes to drive the agenda in the House of Commons would still have a say because of the regional balance provided by the Senate.  4-5

How do we see regional representation expressed today? Well, we have a senator from Alberta strongly supportive of Bill C-311, a climate change bill that threatens the economy of his province. Another senator from that province is the champion of a bill that would all but exclude jurists from Alberta serving on the Supreme Court of Canada, a bill that was recently criticized harshly by Alberta's Attorney General.  4-6

I ask honourable senators, how is it that this Alice-in-Wonderland scenario is able to play itself out in the Senate of Canada? I think the answer is clear: Because there is no democratic accountability. Because senators are not answerable to the people in the region they purport to represent. Without democracy, claims of representation are a sham. Unfortunately, the reality of two Liberal senators taking positions that are strongly opposed within the region they represent was not reflected in Senator Cowan's remarks.  4-7

The Leader of the Opposition in the Senate, while decrying Prime Minister Harper's recent Senate appointments, called on the new appointees, and I quote, "to take pains to ensure that their positions reflect those of their regions over and above the views of the Conservative Party."  4-8

Honourable senators, I guess Senator Cowan's admonition only applies to members on this side of the chamber; what is good for you is good for you. Of course, if Senator Cowan had simply turned around and looked at his own benches, he would have to admit that this critically important goal of the Fathers of Confederation, a voice for the regions, is not being met.  4-9

Senator Cowan also referenced the protection of minorities, political minorities, the political opposition, as an important role of the Senate, and indeed it is. How well have we done? Honourable senators, history has shown us that the current method of choosing senators does little to protect the political opposition.  4-10

Of the 103 senators appointed by Prime Minister Mackenzie King, 101 were members of the Liberal Party of Canada. During the Trudeau years, 70 of 81 appointments went to Liberals. In the Chrétien era, 72 of 75 appointments were Liberals. Tell me how the unelected nature of the Senate during those eras helped give voice to the political opposition.  4-11

As well, both Senator Nolin and Senator Cowan suggested that appointments to the Senate versus elections would be the only way to achieve a Senate that is more reflective of the makeup of Canadian society. I point out that one of the options available to the provinces under Bill S-8 is an election through a system of proportional representation. Such an approach — a decision of the province, I emphasize — could not only encourage greater diversity of representation but could also provide an opportunity for other well-established political parties to break through the two-party duopoly that has historically characterized the makeup of this body. Proportional representation, as emphasized in the Beaudoin-Dobbie report of the early 1990s, would help to distinguish the makeup of the Senate from the House of Commons.  4-12

In concluding his comments, Senator Nolin advised us that, in his view, the election of senators would result in a less effective Senate. He gave great emphasis to that view. The senator said, and I am quoting, "electing senators does not guarantee effectiveness," the implication of that comment being that an appointed Senate, including individuals serving for over 40 years without any accountability to the regions they represent, does guarantee effectiveness.  4-13

Honourable senators, I suspect most Canadians, even those with strong affection for the current makeup of the Senate, would have difficulty accepting that conclusion. Surely, when we measure effectiveness, we must look at whether senators are pursuing issues that matter to the people they represent. Otherwise, this room is no more than an echo chamber.  4-14

How do we tell whether we are effective? I would suggest that is not up to us to determine. The people we work for, the people of Canada, should decide whether we are effective. There is a time-trusted way for that determination to be made — it is called an election. Bill S-8 is a realistic way to move in that direction. It proposes reform that is achievable.  4-15

Some honourable senators seem to be preoccupied with the need to make this as complicated as possible, suggesting even consultative elections cannot be implemented without constitutional reform. I respectfully disagree. Section 24 of the Constitution Act says the following:  4-16

    The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.  4-17

Right now, the provisions of section 24 are met by the Prime Minister recommending names to the Governor General. Bill S-8 does not change that. All it does is address the circumstances under which the Prime Minister comes up with those names. Instead of consulting his or her inner circle, the Prime Minister listens to the people and consults those who will be represented. What can possibly be wrong with that?  4-18

Honourable senators, at the end of the day, Bill S-8 is, out of necessity, a very modest initiative, an offer to the provinces that hopefully some will accept. If enough do, it could lead to the degree of public support required to propel significant change. I hope I am around to see that happen.  4-19

The Hon. the Speaker: On debate or question and comments?  5

Senator Segal: I hope to participate in the debate before I die.  6

The Hon. the Speaker: Are there any questions and comments on Senator Runciman's time?  7

Hon. Mac Harb: Will the honourable senator take a question?  8

Senator Runciman: Yes.  9

Senator Harb: Honourable senators, I have no problem if the will of the provinces and the will of the government in both houses is to proceed with an elected Senate. Let it be.  10

If the truth is that the government intention is to have an elected Senate, that would mean the government would have to appoint senators to cabinet. That would mean, as well, that the Senate will have the power to defeat the government. In the end, we would have two houses. Is that really the intent of the government in the end, to have two Houses of Commons, one smaller than the other one? Each senator is elected by 500,000 people, as is the case in Ontario, while a member of Parliament is elected by 100,000 people. Should those two representatives have the same power or should the one who represents 500,000 people have more power?  10-1

If so, would the honourable senator not agree that the government should also propose reform of the House of Commons at the same time, if that is their intent?  10-2

Senator Runciman: Senator Harb is reaffirming what I said in my comments. He is trying to complicate this matter by going into situations with respect to a possibility of constitutional change. That is not being suggested in Bill S-8. This is a modest initiative, as I outlined in my comments. This bill only changes the appointment process by allowing the prime minister of the day to select from a province, which makes the decision on who among them should be given a voice to represent them in this chamber.  11

The honourable senator is going down a road that I hope we go down in the not too distant future, but it is premature to get into those discussions at this stage. We are not talking about the kind of constitutional reform the honourable senator is trying to engage me in where we talk about the powers of the two houses and those kinds of implications. This is a modest initiative to allow the provinces the option, the choice, to go in this direction.  11-1

The bill allows the provinces to look at the possibility of their legislative chamber electing representatives to serve here, and the current prime minister has indicated that he will honour the selection of that given province.  11-2

Hon. Anne C. Cools: Will the honourable senator take a question from me, please?  12

Senator Runciman: One of my favourite senators, of course.  13

Senator Cools: Oh, good. Let us keep it that way. I supported Senator Runciman on Bill C-68, the gun bill, many years ago.  14

Honourable senators, I have listened to Senator Runciman with some interest, as I listened to many members on this matter with some interest. My question is twofold. The first part has to do with the fact that the position of prime minister, not this or any particular prime minister, in our system is not an elected position. He is appointed just as we are. He has a commission on his wall, just as we do.  14-1

Following the logic that Senator Runciman and this bill is putting forth, would it be acceptable for someone here to bring a bill asking the provinces of this country to run processes or consultations to bring forward names to be submitted to Her Majesty's representative for appointment as Prime Minister?  14-2

Senator Runciman: That is the intent of the legislation. It is an indication from the government, the Prime Minister, that if a province decides to move in that direction, there are a number of options afforded under the legislation. The Prime Minister has indicated that he will respect the decision of that province and their electorate.  15

The Hon. the Speaker: Honourable senators, before I call upon Senator Segal — I did not want this to wait for some distant millennium — I want to ensure that we all understand that 45 minutes has been reserved on our common understanding for the official opposition.  16

Hon. Hugh Segal: Honourable senators, I will be brief. I know taxicabs have been ordered.  17

I am delighted to support Bill S-8 and the motion of my seatmate and colleague Senator Bert Brown for second reading. It is my view that the role of Parliament is to moderate and control the role of the Crown in any way that connects the discretion of the Crown and its ministers to the will of the people. In the United States, democracy evolved in violent revolution against the Crown. In Canada, democracy evolved in collaboration with the Crown. Responsible government is the basis for our constitutional monarchy. It is how our democratic traditions developed.  17-1

This chamber, whether its proponents or opponents like it or not, is an integral part of how that evolution took place.  17-2

The replacement of the Château Clique and the Family Compact of Ontario, with executive councils directly responsible to the elected assemblies, is an example of the step-by-step approach that created Canadian democracy. The decision by the Fathers of Confederation to have a second chamber, the Senate, reflects the principle of regional representation and the principle of placing limits on the will or, from time to time, the enthusiasm of the voters.  17-3

When I started in this building 41 years ago as a young research assistant to David MacDonald, a Progressive Conservative MP from Egmont, Prince Edward Island, first as an unpaid volunteer and then as a research assistant earning $58 a week, the narrative was that the Liberal Prime Minister's office had way too much power. That Prime Minister, of course, was the "Sun God," Mr. Trudeau. Every prime minister since has faced the same narrative. Whichever party, whether minority or majority, the narrative is the same: The Prime Minister has too much power.  17-4

To some extent, this reflects how our constitution and political culture operates. The truth is, a Canadian Prime Minister heading a party that has a majority in the House of Commons has far more domestic authority and discretion than the President of the United States, the Prime Minister of Great Britain, the President of France, the Prime Minister of Australia, the Chancellor of Germany.  17-5

WOW! Canadian Prime Ministers wield "far more domestic authority and discretion than the President of the United States, the Prime Minister of Great Britain, the President of France, the Prime Minister of Australia, the Chancellor of Germany." That leaves only the Supreme Court and the Senate to prevent a Canadian P.M. the assume absolute dictatorship. Well, maybe the Queen also. Again, abolishing the Senate is not such a grand idea.  n17-5

Why? Constitutionally, because those other leaders have secondary upper chambers with public legitimacy that can countervail the lower house's majority when necessary. In the British case, they have government caucuses that are not whipped in totality ever, as a matter of principle. As the U.K. White Paper on Lords Reform in 2006 certified, we have here in this place the most powerful upper chamber in the world, at least in terms of raw, undiminished and unmitigated constitutional power. It is rarely used because we do not have an ounce of democratic legitimacy or legitimacy from the provinces under whose name we are affiliated in this place.  17-6

This restraint, of course, is laudable and appropriate, but to attack the present prime minister as being power hungry or trying to side step the Constitution when the purpose of the bill before us is to strengthen the ability of this chamber with a measure of electoral legitimacy to dilute a prime minister's power in the future makes no sense at all.  17-7

It also makes no sense, as my good friend the Leader of the Opposition in this place has suggested, that the measures in this bill are an effort to avoid the Constitution in making changes to how this place might operate.  17-8

Honourable senators, I believe that this bill is the absolute opposite of that. It embraces the Constitution by letting provinces decide how and when to choose an individual to fill a vacancy. It forces no province to do so. It embraces the rights provinces have to decide how to engage with the present Constitution as it now exists and provides. When Prime Minister Harper spoke of open federalism in the 2004 and 2006 election campaigns, he meant it, and this bill is further proof of that commitment.  17-9

Imagine, honourable senators, a decade or so onward this place has a plurality or majority of senators appointed by the Governor General on the Prime Minister's recommendation as a result of elections in many provinces, and perhaps some based on a determination made by the Assemblée nationale in Quebec. In that instance, if a bill came to this place that reflected the misuse of a parliamentary majority by any prime minister, the legitimacy of this place to stop it would be clear and uncontested.  17-10

Some worry about gridlock. I say to my friends opposite, you cannot have it both ways. You cannot on the one hand wring your hands about allegedly excessive prime ministerial power and then cry tears of concern about gridlock. There are ways to manage gridlock and dilute its more excessive applications, ways that would replace the reality of gridlock between the two houses with a more rational traffic control and reflection on bills with a firm stand against, ways that would be essential only when there is no other option.  17-11

Our credibility to take any of these measures sans electoral legitimacy is zero. That legitimacy can be created with longer terms of office to ensure continuity and institutional memory, as vacancies occur sporadically. Elections to this place can also have a role in venting and expressing public anger or frustration with the government-of-the-day or the opposition, as the case may be or require. Democracies benefit from these sorts of opportunities and safety valves.  17-12

My appeal to honourable senators, in the sense of love that Senator Campbell has referenced, is frank and direct. Let this bill go to committee for intensive, constructive study. Concerns have been expressed across the aisle about how the elections might work, how they might be honestly financed, what electoral approach might be used, how the provinces retain their "executive federalist" role in serving their own legitimate provincial interests here, all legitimate and timely, and can and should be addressed in committee. Holding it up excessively before second reading only feeds the myth that this place is unalterably opposed to this place's reform.  17-13

Some honourable senators may recall that I championed a referendum on reform or abolition. I put that on the shelf temporarily because I believe we can work together to produce a good bill and recommendations with amendments that will advance Senate reform. We are only the temporary and appointed stewards, except for Senator Brown, of a national legislature that includes one third of all Canada's federal legislators at this time.  17-14

We work in this place, but we do not own it. We were trustees, unelected, except for my seatmate Senator Brown, who by the way, was elected twice in Alberta as a Progressive Conservative candidate for this place. Is this bill perfect? What bill is perfect? Is it timely? It is long overdue. Will it provide a firm basis for provinces to engage well within the terms of the Constitution of Canada? Yes, it will. Is it forcing any province to act? No. Does it impede the full range of the province's section 92 powers? Not in any way. It moves the option of an elected Senate forward with a statutory framework that puts this place on record as wanting an electoral future.  17-15

My colleague, Senator Nolin, for whom I have great admiration and respect, disagrees with the electoral option. Senator Nolin believes that it would contaminate this place with popularity over competence, as if the two are counterproductive or in competition.  17-16

I must say that I denoted a slight Marie-Antoinette "let them eat cake" approach to his speech which, for other Tory reasons, I admire. In a democracy, one may disagree with the votes or the decisions of the people from time to time. As I said on election night on CBC in 1993, the voters are always right; they can be, on occasion, excessive, but they are always right.  17-17

They are supreme. Senator Nolin is right: That is not how this place was initially conceived 140 years ago. My advice to my good friend, with the greatest of respect, is: Get over it. The war is over; the debate has happened; and the parrot of autocratic, elitist, self-congratulatory denial of democratic rights and prerogatives has passed away. The parrot is dead.  17-18

Our challenge is not to rubber stamp this bill and not to kill it, which would be seriously foolhardy and counterproductive. I suggest, with great unelected humility, that our task is to work with it, improve it, hear detailed witness analyses on every issue from likely constitutional challenges — no doubt unavoidable — to electoral systems operation and financing.  17-19

This bill is not perfect. It does present an excellent opportunity to advance Senate reform based on principles and perspectives of established provincial jurisdictions and respect for the Constitution. We must not miss this opportunity.  17-20

Hon. Bert Brown: Will Senator Segal accept a question?  18

Senator Segal: Given that we are seatmates, I had better accept.  19

Senator Brown: Is the senator aware of the fact that for 90 years in the United States, all senators were appointed?  20

The State of Oregon in 1903 decided to hold an illegal, unconstitutional election. They elected two senators to represent Oregon. The members of the Legislative Assembly had always elected their senators and refused to accept the election outcome. Within a year, the MLAs were defeated in an election and they went ahead with another Senate election, which was respected by the electorate.  20-1

Senator Segal: Honourable senators, I was not aware of the facts at that level of detail. However, I was aware that, as is the case with many things in Canada, good things begin at the provincial or state level. Tommy Douglas began health care in Saskatchewan, and it spread from there.  21

Alberta has shown leadership on this issue. Other provinces are giving the issue serious consideration or have legislation in place, as Senator Runciman suggested.  21-1

The fact that a few provinces make the decision to fill vacancies in the manner prescribed by this bill will produce a constructive, contagion effect. It will not be radical and it will not happen overnight. It will be evolutionary, which is how we became a democratic society to begin with.  21-2

(On motion of Senator Tardif, debate adjourned.)  22

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Hon. Bob Runciman
The Hon. the Speaker
Senator Segal
The Hon. the Speaker
Hon. Mac Harb
Senator Runciman
Senator Harb
Senator Runciman
Hon. Anne C. Cools
Senator Runciman
Senator Cools
Senator Runciman
The Hon. the Speaker
Hon. Hugh Segal
Hon. Bert Brown
Senator Segal
Senator Brown
Senator Segal