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

Extract from the Hansard, 40th Parliament, 3rd session: November 30, 2010  2

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. David Tkachuk: Honourable senators, it is my pleasure to speak today to Bill S-8, the senatorial selection bill.  4

I want to respond to the comments of Senator Joyal who, in his remarks on October 20, questioned the constitutionality of this bill. I also want to say a few words about Senator Mitchell's contribution to this debate, as he represents a province which already has a senatorial selection process in place.  4-1

I always appreciate Senator Joyal's comments, and this time was no different. However, his statements on the senatorial selection bill, while enjoyable, were wrong.  4-2

I would like to address each of his primary criticisms, beginning with the idea that Bill S-8 would change the method of selecting senators.  4-3

Let me be clear: This bill would not change the method by which senators are appointed. It does not bind the Prime Minister in making recommendations to the Governor General. It does not affect the power of the Governor General when making appointments to the Senate. It would require the Prime Minister to consider the names of any nominees put forward by a province, provided that these names were the result of a democratic consultation process with the citizens of that province, as it is presently done in the province of Alberta.  4-4

I have not seen or heard anyone question the constitutionality of the Alberta process, which has been used by Prime Minister Mulroney in the case of Stan Waters, and by Prime Minister Harper in the case of Bert Brown. This bill would not require the Prime Minister to recommend those names for appointment, nor would it require the Governor General to summon these individuals to the Senate. It states only that the Prime Minister must consider the names.  4-5

In short, the bill does not in any way change the method of selection for senators, and therefore does not require a constitutional amendment.  4-6

Honourable senators, our government has been clear about our desire for Senate reform since taking office in 2006. Specifically, we believe Canadians should have a say on who represents them in the Senate. To facilitate and promote reform, the Prime Minister has invited the provinces to develop and implement their own democratic process for the selection of Senate nominees. The senatorial selection act would codify this approach.  4-7

Senator Joyal's second point, that Bill S-8 somehow delegates power to the provinces, is false. It does no such thing. Nothing in Bill S-8 changes the powers of the Governor General or of the provinces. The sole power to summon individuals to the Senate remains firmly in place with the Governor General.  4-8

Not only is there no delegation of powers to the provinces, but the bill does not even require that the provinces establish a consultation process. We are simply encouraging the provinces to develop legislation, not forcing them to do so.  4-9

The framework contained in the schedule of the bill is voluntary. It is provided for the provinces and territories to use as a basis for implementing the process to consult voters on Senate appointments. In our view, the most important aspect of any selection process is that it provides citizens with the opportunity to have input on their Senate representatives. Whether or not a particular province provides its citizens with that opportunity is a decision of that province alone.  4-10

Finally, I come to the third objection, that the legislature of a province has no jurisdiction to enact legislation with respect to the Senate. Again, the premise of the bill has been misinterpreted. Provinces will not be legislating with respect to the Senate because the bill does not empower provinces to legislate with respect to the Senate. Any provincial process would only be consultative in nature and not legally binding. Thus, this bill does not violate the Constitution.  4-11

In many ways, these consultation processes would resemble referendums or plebiscites. Most provinces already have legislation that enables them to seek the views of citizens through a referendum on any matter of public interest or of concern.  4-12

Indeed, back in 2002, the Supreme Court of British Columbia ruled that it is open to the provincial government to elicit public opinion and that whether the government ought to have held a referendum is a political matter for which it is accountable to the electorate.  4-13

Honourable senators, the court has already stated that a province is well within its right to consult its citizens to determine their views on important public matters. The senatorial selection act encourages provinces to do exactly that. Any provincial process would be a nonbinding mechanism that would seek the views of its residents. Provincial governments would be accountable to the electorate on whether or not they chose to have a selection process. Similarly, the Government of Canada would continue to be accountable for its appointments to the Senate, just as Prime Minister Harper was accountable when he chose to accept the wishes of the people of Alberta and appoint Senator Bert Brown. At the end of day, these are political matters for governments.  4-14

Let me address what I suspect to be the real reason the Liberals are focusing on the Constitution. They are opposed to citizens having a say in who is their senator, even though a recent Angus Reid poll found that 70 per cent of Canadians would like to see direct Senate elections. The Liberals have had five years to develop their own ideas, yet the best they can offer up are 15-year terms and constitutional reform—a 15-year term, honourable senators. One election per generation: That is the Liberal approach to democracy.  4-15

A senator now coming to the end of her or his 15-year term would have been elected in 1995, a couple of years after Al Gore "invented" the Internet and around the time that Jean Chrétien was discussing public policy with street people. Bill Clinton had just welcomed a young intern named Monica Lewinsky to the White House and O.J. Simpson's lawyer was telling an L.A. courtroom, "If a glove doesn't fit, you must acquit."  4-16

Honourable senators, this past January their leader in the other place said he would like to see senators selected by a panel. Mr. Ignatieff and his Harvard friends—they would all be visiting of course—would be sitting around discussing who should be the next senator from Saskatchewan, or the next senator from Manitoba or Nova Scotia. Anything but the electorate.  4-17

This is not democracy, and it is time the Liberals were clear with Canadians on where they stand on Senate elections. What I suspect is that they would say something to the effect of, "We support Senate elections as long as they never take place."  4-18

Senator Mitchell may very well have demonstrated this when he attacked the government's approach during his November 2 remarks. Perhaps he felt a bit of déjà vu as he rose to speak on Bill S-8, a flashback to his days in the Alberta legislature when he spoke for Senate elections, but against the similarly named Senatorial Selection Amendment Act. Speaking of what was known as Bill 40, he told the legislature on April 29, 1998:  4-19

    I've never met a Senator who deep in their heart didn't want to be elected, because they know there is something slightly missing.  4-20

We have noticed. Of course, having spoken out on the need to elect senators, Senator Mitchell then proceeded to vote against the bill.  4-21

This was around the time that Senator Mitchell had just handed over the Alberta leadership to a successor and thus was open to new challenges, so he made it abundantly clear that his reasons for opposing Bill 40 did not include a future Senate appointment, stating:  4-22

    I know that the Treasurer wants to speak. . .  4-23

The treasurer at the time was the Honourable Stockwell Day.  4-24

    . . . and I bet I know what he's going to say. He's going to say that Grant Mitchell, the Member for Edmonton-McClung, is concerned about this because he would be in the running for a senatorial position perhaps. I'm not.  4-25

    I'm not interested. I have no interest in going to Ottawa, period, and I want to lay to rest before the member from the Treasury Department. . .  4-26

— who was Stockwell Day— 4-27

    . . . gets up and starts to try to promote that little myth.  4-28

    It's interesting that patronage would immediately come to a Conservative's mind, because it really hasn't crossed mine. Not interested.  4-29

Well, how about that, fellow senators?  4-30

He even claimed that Senate elections were actually a Liberal idea, telling the legislature, on April 27, 1998:  4-31

    For any of those members who would suggest that we're not in favour of Senatorial elections, we absolutely are. In fact, it was Nick Taylor, the previous leader, who actually proposed the motion to elect a Senator, who eventually became Senator Stan Waters.  4-32

Indeed, a few months prior, he had demanded that the vacancy created by the death of Senator Walter Twinn be filled by an elected senator.  4-33

The Edmonton Journal, on November 7, 1997, told readers:  4-34

    Alberta politicians ranging from Manning to Klein and Liberal Leader Grant Mitchell have demanded a repeat performance of the 1989 election that resulted in the 1990 Senate installation of victor Stan Waters.  4-35

I am sure that when the call finally came in 2005, Senator Mitchell said, "Thank you, Prime Minister, but the people of Alberta have spoken, and they want Bert Brown as their senator."  4-36

To summarize, Senator Mitchell thinks that unelected senators are missing something. He claims that Senate elections were originally a Liberal idea. He demanded that an Alberta vacancy be filled by an elected senator and then turned around and accepted an appointment, even though elected senators were waiting in the wings. Honourable senators, Senator Mitchell is not willing to support this bill.  4-37

Honourable senators, we are seeing the same kind of story. The Liberals pay lip service to the idea of Senate reform, but they will do whatever it takes to obstruct progress, and the flavour of the day is the Constitution.  4-38

As I have already outlined, from a legal and constitutional perspective, the senatorial selection act is sound. It does not alter the Constitution, nor would it bind the Prime Minister or the Governor General in appointing senators. Senators would continue to be summoned to the Senate by the Governor General on the advice of the Prime Minister pursuant to the Constitution.  4-39

Although this bill may not be a radical change, it is an important change that illustrates our government's determination to enhance the legitimacy of our democratic institution. It indicates that this Prime Minister is willing to listen to the provinces and the people of Canada regarding Senate appointments. Our government continues to believe that this chamber needs to be reformed for it to be considered a modern democratic institution.  4-40

Honourable senators, four years ago, in its first report, the Special Senate Committee on Senate Reform told the Senate—and the Liberals controlled the committee back then—that the issues the committee proposed to address included "development of a model for a modern, elected Senate." Liberal members of that committee included Senator Austin, Senator Chaput, Senator Dawson, Senator Hubley, Senator Munson and Senator Watt, four of whom are still serving.  4-41

We now have a perfect opportunity for a committee of the Senate to look at the creation of a modern, elected Senate. Let us give Canadians a say on who represents them in this institution.  4-42

(On motion of Senator Tardif, debate adjourned.)  5

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Hon. David Tkachuk