CANADA

Hon. James S. Cowan (Leader of the Senate Liberals), pursuant to notice of December 9, 2015, moved:  3

      That a Special Committee on Senate Modernization be appointed to consider methods to make the Senate more effective within the current constitutional framework;  3-1

Observe that the motion explicitly concerns methods. And most of the debate that follows is about methods, although, happily, not all of it. My essay, "On guard in a global environment," explicitly advocates an expansion of the Senate's role to be a guardian for our country in a tempestuous world. Does such an expansion come under methods as well as means, or objectives? Arrangements are underway for a brief version of this essay being discussed by the special committee.  n3-1

      That the committee be composed of fifteen members, to be nominated by the Committee of Selection, and that five members constitute a quorum;  3-2

      That the committee have the power to send for persons, papers and records; to examine witnesses; and to publish such papers and evidence from day to day as may be ordered by the committee;  3-3

      That the committee be authorized to hire outside experts;  3-4

      That, notwithstanding rule 12-18(2)(b)(i), the committee have the power to sit from Monday to Friday, even though the Senate may then be adjourned for a period exceeding one week; and  3-5

      That the committee be empowered to report from time to time and to submit its final report no later than June 1, 2016.  3-6

He said: Colleagues, in the few days since we returned to this chamber, several of our debates have quickly turned into lively discussions about how we can and should operate as the Senate of Canada. Yesterday we had interesting debates about our Question Period and about the composition of our committees.  4

Re Question Period, see the Hansard.  n4

Re composition of committees, see the Hansard.  n4A

These are issues that are of serious concern to all of us, so it should come as no surprise that senators returned to them, even in debates on apparently unrelated issues. Indeed, in his first statement here on Tuesday, Senator Carignan raised the need to consider ways to modernize the Senate, and I echoed those remarks when I spoke.  4-1

That only makes sense. Each of us is acutely aware of the challenges faced by the Senate as an institution, and each of us as senators. The Senate in its current form is not working as it should and as it can. We know that. Canadians know that. The Senate was established, amongst other things, to be an independent body to conduct effective legislative review.  4-2

But along the way, while the words were always spoken, and no doubt with the best of intentions, too often we simply failed to do our job. We allowed our studies to be rushed, we declined to hear important witnesses and we refused to pass amendments that we knew would have improved the legislation before us. This has been attributed by some to excessive partisanship in the Senate. They argue that we allowed partisan considerations to overwhelm this chamber's ability to conduct our mandated effective legislative review.  4-3

Meanwhile all of this, especially when combined with the actions of certain individual senators, has corroded the reputation of the Senate.  4-4

In October of 2013, after reading and hearing about Senate scandals, I decided to learn a little bit about this institution. At first it seemed things were as bad if not worse than advertised, but I quickly learned that our Senate ought to really be a most valuable institution. I then wrote some comments in a letter which, in November of 2013, I handed to my regional MP. She promised a response, but that was not forthcoming. I couldn't get the issue off my mind and eventually the letter grew into an essay—a document continually corrected, upgraded, edited, what have you. I put the essay on my personal website and, upon the urging of a candidate for the 2015 federal election, I alerted, in the Spring of 2015, our senators to the effort.  n4-4

Where do we go from here? How do we reinvent this institution and our role as senators to regain the confidence of Canadians?  4-5

There have been many discussions about changes to our rules, practices and procedures to make the Senate a more open, transparent and accountable organization, and these, of course, are essential. But as I said last June before we broke for the summer recess, simply tinkering with our rules is not enough. We have to improve the way we do our job. At the end of the day we will not be judged on how efficiently we manage our budget, but rather on how effectively we operate as a legislative body. In my opinion, the time has come to take a serious, structured look at how we operate and how we approach our work.  4-6

Indeed! "Simply tinkering with our rules is not enough." Appendix G shows senators' responses to a questionnaire designed by Senators Paul J. Massicotte and Stephen Greene. The upshot of those responses, it appears to me, seek to do just that: "simply tinkering with the rules." However well intended the exercise, the outcome looks bleak. As observed by Seator Massicotte, "Human nature is such that people are always scared with change and they're always hesitant and so this is a process that is complicated for many." Please, refer to my inked-in comments in that appendix.  n4-6

On May 8, 2014, our late colleague and former Speaker Senator Pierre Claude Nolin proposed the establishment of a special committee on Senate modernization:  4-7

      ... to consider methods to make the Senate more effective, more transparent and more responsible, within the current constitutional framework ...  4-8

I welcomed the initiative at the time, but quickly realized that my view was not universally shared. I believe—I hope—that there may now be a broader consensus, with senators throughout the chamber now agreeing with our former Speaker that a focused examination would be beneficial to all of us and to the Senate itself.  4-9

We have an opportunity, as I said in this chamber a few days ago, to make history, to participate in finding new ways for this chamber to operate. We all agree that the Senate was intended to be an independent chamber of Parliament. That intent is absolutely clear in the Confederation debates, and was confirmed in the two Supreme Court references on the Senate.  4-10

What does this mean and how can we make that work in our Westminster parliamentary system? There has been a lot of discussion about reducing partisanship, and how that could work in what is, without question, a political institution. I am hopeful we can work together to find a new balance that still allows senators to assert political values that may align with a political party, but without those partisan ties compelling one to take a position on a matter even when it runs counter to one's best judgment, that we can create new ways for our chamber to operate to foster this greater independence, to make our Senate a more effective legislative body, as envisioned by the framers of the Constitution, and as we know Canadians want and expect from us.  4-11

The accelerating advance of human experience generates an ever wider range of greys between black and white. This process rubs out a great deal of the differences that exist between political values—and religious values, for that matter. Pigheaded is the person, in this day and age, who has not sensed at least something about how the opposite sex perceives life. Trudeau said it, "this is 2015." Just how different is an NDPer from a Liberal? It isn't that long ago that Conservatives couldn't stand social democrats, that Protestants couldn't stand Catholics. Looking back a bit further, we find that our aboriginal compatriots were considered savages and heathen and that lands where such beings dwelled were perceived as uninhabited, ready for the claiming.  n4-11

As I noted earlier, this is a matter that concerns all of us, and many of us have already begun examining what can be improved. There were many excellent interventions by colleagues in the seven inquiries launched by Senator Nolin. They were initiated to foster a better understanding of the Senate's work, the principles underpinning it and the scope of the roles it plays in our parliamentary democracy.  4-12

There was also a superb symposium at the University of Ottawa organized by Senator Joyal that brought together parliamentary authorities from across Canada to discuss improvements to the Senate. Most recently, Senators Greene and Massicotte took the initiative of convening senators to propose and discuss ideas to move the Senate forward. I know, from private conversations I have had with colleagues and with parliamentary experts around the country, that there are many other good ideas for Senate renewal.  4-13

I believe now is the time to bring together all these ideas for consideration by appointing a special committee charged with this purpose. This is not a task to be carried out behind closed doors. We should be looking to reinvent how the Senate works, to make it more responsive and to respond to the concerns and expectations of Canadians, all of which can be summed up by saying that our purpose is to make it a more effective legislative body in the Canadian constitutional framework.  4-14

And so, finally, this is where my essay about our Senate, begun with a letter to my MP given to her on November 11, 2013—Remembrance Day— right after a ceremony at the Cenotaph in Lachute, fits in. As the "ungoing essay" evolved, its title changed to "On guard in a global environment"—engendered by the title of Senator Joyal's 2003 compilation of essays named "Protecting Canadian Democracy" and our national anthem.  n4-14

The motion before us today is virtually identical to that proposed by our esteemed late colleague more than a year and a half ago.  4-15

The Supreme Court of Canada has provided an excellent roadmap for Senate renewal in their decision on the Senate reform reference, issued on April 25, 2014. The next steps are up to us.  4-16

We have an opportunity, colleagues, to work together across party and regional lines to create a better way forward for this institution. It is an opportunity, but it is also our responsibility. We owe it to our predecessors here, we owe it to our successors and, frankly, we owe it to ourselves. Above all, we owe it to Canadians.  4-17

And those who come after us. Who couldn't be struck by so many school-age children that lined the route of our Governor-General and new Prime Minister through Parliament and present inside the Senate Chamber on the occasion of the 2015 throne speech?  n4-17

I invite you to join with me to pass this motion before we rise for the holiday break.  4-18

Some Hon. Senators: Hear, hear!  5

Hon. George Baker: I congratulate the mover of this motion.  6

However, during his address the mover referenced certain bills that we passed that were deficient and faulty in the last session. That is correct, but wouldn't the honourable senator moving the motion agree that it wasn't because of the Rules of the Senate or the actions of the Senate, but it was because of the rules of the House of Commons? Committee chairs here—and I reference Senator Runciman sitting in his place—moved motions and wrote letters to the Clerk of the House of Commons asking for the clerk's assistance, and to the leaders in the other place to correct their rules because we had bills which were supported by senators on the government side. They were introduced by the senators—good legislation. But if they were deficient, as they were, four of them, if we amended the bill, it would kill the legislation. Why? Because of the rules of the House of Commons. The decision was made, and I think it was correct, to allow these matters to go through in the hopes and with the guarantee that this would be corrected down the road. And that's what we did.  6-1

So the mistakes we made, yes, we made errors in passing legislation, but it was not the fault of the rules of this place or the actions of senators in this place. It was because of the rules of the House of Commons.  6-2

I therefore ask the mover of the motion: In moving this motion is he also hopeful that the committee will have a look at the rules of the House of Commons that are to the detriment of the passage of legislation in this chamber that are put forward by private members and require an amendment, and to ask the House of Commons to change their rules to allow the Senate to do the job that it wants to do?  6-3

Senator Cowan: Thank you for the question, Senator Baker. My own view is that we would be well advised to stick to our knitting and to look at our own rules, our own practices, our own procedures, and let the House of Commons handle theirs. It seems to me that there's a great danger if we start providing directions to the House of Commons as to what their rules ought to provide. It wouldn't be very long before they'd be back here telling us how we should do our business. I think that would be unfortunate.  7

We are an independent house. You've heard Minister LeBlanc on a number of occasions in the last month or so say that the Senate is independent, it ought to be independent, and it ought to manage its own affairs. They said they would welcome reasoned amendments proposed by this institution, and I think we should hold them to that and see how we get along. But I think there's a lot for us to do here without worrying what happens down the hall.  7-1

I think the particular point you refer to had to do with a peculiarity dealing with how the bill had been introduced over there. You will recall as well there were several occasions in the last Parliament where we identified problems, but because of the pressure to get business done with the anticipated election, we ignored them. In hindsight, I think most of us now would think we shouldn't have proceeded in that way.  7-2

I'm not suggesting for a moment that this was a practice that began only under the last government. You've been here a lot longer than I have, and I'm sure that you will admit perhaps when you were a member of the other place and a minister in the other place you were impatient to see the Senate pass legislation that came from your department. That is a fact with which we have to deal.  7-3

The House of Commons needs to understand that we are an independent institution and will do our work in the way that we see fit. The ultimate test is whether we are doing our job, as I think we all agree we need to do. When we fail to do that, as has happened, then all it seems to do is provide further ammunition to the critics of this place, and God knows we don't need more critics.  7-4

Senator Baker: I understand the argument of jurisdiction, of course. There are two separate jurisdictions. Senator Tannas knows exactly what I'm talking about. The whip of the official opposition knows exactly what I'm talking about because on two of the bills he supported, he was the mover. Senator Tannas was another mover of bills. These bills were passed in the House of Commons, referred to the Senate, but they were private members' bills. The rules of the House of Commons are that if you amend a private member's bill in the Senate, it will then go back to the House of Commons and go to the bottom of a very deep list of bills. It takes up to two years for that bill to recirculate. So Senator Tannas and Senator Plett and other senators on the then government side explained to us, "Look, there's a deficiency in that bill. The Senate has a job to amend that bill, but if it is amended, it will be dead.  8

The intent of the legislation is good. It amends the Criminal Code to support things we want to support. So the deficiency here in the Senate of allowing faulty bills to go through rests with a procedure in the House of Commons that deals with going to the bottom of the list once a bill is amended in this place that is introduced by a private member. That's what I'm referring to. I think this committee should take notice of that in its reports, because if we don't do that, and if the House of Commons does not change its rules, then every private member's bill that's passed in the House of Commons midway through a session cannot be amended in the Senate. They can't be amended unless that House of Commons rules are changed.  8-1

I'm sure that the honourable senator moving the motion would, as his father would say, take judicial notice of a deficiency in the rules of procedure in the House of Commons.  8-2

Senator Cowan: Taken.  9

Hon. Serge Joyal: First, I apologize to honourable senators. I have a bad flu today, so my voice might be very low. I am on medication and I promise I won't speak to Senator Andreychuk today.  10

Honourable senators, I will be very quick. I know that the hour is late, but I would be remiss if I didn't offer some food for thought at this period of the year, whereby tomorrow we're going to be adjourning and coming back on January 26.  10-1

I want to remind honourable senators that when the late Senator Nolin introduced the motion to establish the special committee, I seconded it. I want to read to you the words of Senator Nolin when he introduced that motion.  10-2

      The government also recognizes that the public clearly wants our institution to be much more effective, and we must all work to fulfill this legitimate aspiration. We must pursue this goal quickly and without delay. It may be status quo in terms of the Constitution, but the Senate's institutional transformation must move forward.  10-3

That's essentially the framework I understand from the Honourable Senator Cowan and, I think, from the Honourable Senator Carignan. I have not heard Senator Carignan on the floor, but I'm sure he will take part in this debate. That is essentially the objective. The objective is not to change the Constitution. The Constitution was interpreted by the Supreme Court in April 2014 in a lengthy, unanimous ruling. Therefore, we will not be on that committee to change the Constitution or to recommend changes to the Constitution. We know that's beyond our purview.  10-4

However, there is a lot of room for transformation. There is a lot of room for improvement and there is a lot of room for initiative to adapt the operation of the Senate, the practices of the Senate, the convention that rules the governing of the Senate and the Rules of the Senate that also govern our institution. In other words, there is a whole realm of initiatives that we could take after deep sober second thought.  10-5

It is in that context that last winter, at the end of January, I took the initiative, with the support of Senator Nolin, to organize a symposium at the Faculty of Law at the University of Ottawa with five leading Canadian scholars. There was Professor Paul Thomas from the University of Manitoba, the home province of our colleague Senator Plett. There was Professor David Smith, who is a distinguished visiting professor at Ryerson University in Toronto and a former emeritus professor at the University of Saskatchewan. There was Professor Stéphane Beaulac from Montreal University. There was Professor Desserud from Prince Edward Island University and Professor Mendez from Ottawa University. In other words, there was input from the various regions of Canada.  10-6

Each of them came with documents. It was not just a social gathering to just peruse over the institution. They came with documents. We had that open discussion, I would say, in an academic context.  10-7

Following that free exchange, I prepared a report on their contribution. It's 26 pages, in both official languages, entitled, "Working Together: Improving Canada's Appointed Senate." I would seek authorization to table that report. During the Christmas break, senators who still have a genuine interest can read through it. It's user-friendly, not in a language that is so arcane that anyone would feel lost. It's in a practical language, and it contains the substantial proposal from those five learned scholars from all the regions of Canada. That's the first report I would like to table.  10-8

Meanwhile, you know I have had a personal interest since joining this chamber. I published a book in 2003, Protecting Canadian Democracy: The Senate You Never Knew. I published that book in 2003, and I have never stopped thinking about our institution.  10-9

When the ruling of the Supreme Court was made public on April 25, 2014, more than a year ago, I contacted Professor David Smith and said, "Should we put our minds together to try to analyze the implications of that ruling?" In other words, forget the difficult judicial language used by the court. Let's try to understand the parameters of the ruling so that we can share that with senators who are interested in understanding our institution.  10-10

That's what I did last summer, and I have another report, in both official languages, signed by Professor David Smith and me. It is a compendium of all the principles that underlie that decision. It's easy reading. I offer it to you and want to share it with you, honourable senators. We don't know who will be a member of that committee, but it is available for anyone who is deeply interested in the future of this institution. We know that our institution is under stress at this point in time. I want to share that with you at this time of the year. It's not my Christmas gift—you will receive that through the mail—but I think it could be helpful for all of you. With your authorization, I would like to table that.  10-11

The Hon. the Speaker: Is leave granted to table the reports?  11

Hon. Senators: Agreed.  12

Senator Joyal: I will conclude on that, honourable senators, before I collapse because I took so much medicine so that I could last until the late hour today. I don't think I can say it any better than what I just offered to you.  13

Hon. Diane Bellemare: Thank you, Mr. Speaker. I will be rather brief, because I have not prepared a formal speech. I would first like to take a moment to congratulate our colleague, the Honourable Serge Joyal, on the hard work, expertise and thoughtful reflection that he has put into addressing the issue of the Senate over the years. I think this will provide us with some very timely reading over the winter break.  14

I want to address certain aspects of the motion currently before us. I think it is welcome. For several weeks and even months now, the members of this chamber have been asking for a duly formed committee to examine the question of modernizing the Senate. However, when I read this motion, a few things came to mind.  14-1

First of all, regarding modernization, I think that everyone wants it, the public wants it, and maintaining the status quo is impossible. We can talk about modernization, but we must recognize that we have in fact made some changes since the headline-grabbing scandal that affected us, for instance in the area of ethics. We have made some strides.  14-2

This brings me to the point that the motion refers to modernization, but it fails to define the committee's mandate. On this point I very much agree with Senator Baker, who just pointed out that our work here complements the work done in the House of Commons and that, to a certain degree, it would be very hard to modernize the Senate without also thinking about modernizing the work of the House of Commons. Since we work together and our legislative work is very important, we eventually are going to have to align our rules and procedures so that we can really create some added value from a legislative standpoint.  14-3

With that in mind, without necessarily formally amending the motion, we should all agree in this chamber that if, when we are talking about modernizing the Senate, we see the limits of what we can do and we can identify changes that are needed in the House of Commons, we should not refrain from doing so, even though that goes beyond our mandate.  14-4

Incidentally, when we look at the numbers on the work we do here in the Senate—my assistant crunched the numbers this summer—it is rather astounding. Since 1960—which was the Twenty-fourth Parliament—and including the Forty-first Parliament, 709 bills have been introduced during each parliament, on average. Of course, not all of these bills were passed in the House of Commons. Of the 709 bills we received, we passed, on average, 145. Of those 145 bills we passed, we amended just six, on average. The average accurately reflects what happens in the different parliaments. There are some variations. For example, during the Forty-first Parliament, just one bill was officially amended and passed, but during the Thirty-seventh Parliament, 12 bills were amended and passed. There are variations, but on average, the number is six.  14-5

We could be more effective. In that sense, modernizing the Senate means adding greater value through our work. I think that would be a worthwhile direction to take, even though it is not written in the motion.  14-6

I am inclined to expect that the recommended co-operative authoring of documents shall be more effective than debates. It enforces attention to detail. See the chapter about Optimizing effectiveness: Digital collaboration.  n14-6

I am on board with inviting experts. I think that this is explicitly stated in the motion, but there are experts here in this chamber, and we must not forget that a number of problems in this chamber, in my opinion, are the result of internal rules and procedures. When I came to this chamber three years ago, I didn't really understand what was going on. I had spent 25 years at a university, where we managed ourselves, everything was collegial, and it was in no way chaotic. Since we are senators, people with experience, I thought that we would be recognized as having that experience and that we would be able to work relatively independently, although I realized we are affiliated with a political party. However, I was surprised to see that we are treated as though we are kids in school because of the rules. I was a professor for 25 years and I know the rules. I didn't treat my students as strictly as we are treated here with our rules.  14-7

I tentatively perceive that most senators will be serving on committees dealing with wickedly complex issues as selected by an experienced research executive. His task is a tough one and shall not be unduly restricted by rules, ref. I think of him as being on equal standing, yet close collaborator with whomever will be the elected Speaker who will take up the slack.  n14-7

In a way, with the passing of time, some processes have become institutionalized in order to foster party discipline. In fact, we are a political chamber and we must pass government legislation. However, is it necessary to institutionalize practices that force us to act without the luxury of reflection? In my opinion, that is the reason why we are unable to provide the added value that is expected of us, which is to improve legislation and foster debate.  14-8

If someone were to ask me what has struck me the most in my three years in the Senate, I would say that it is the fact that there is no debate in this chamber. There is some debate, but most of the time people don't listen to each other. They plug their ears, close their eyes or look elsewhere. They don't look at each other, so the debate doesn't exist. There is no added value.  14-9

Most interesting. An honest and important observation by one who knows what goes on in lecture halls and class rooms. Looking at the Hansard, I wonder how our senators can take so much verbal torture while maintaining a strict decorum of times long gone by.  n14-9

I think those are very important elements to consider. In that regard, the services of experts are worthwhile, but we have to think about these things ourselves to set rules and an operating structure for ourselves. We don't want chaos. We want to operate in a disciplined manner.  14-10

That is why I am going to support Senator Cowan's proposal. However, I am going to say what others might be thinking. I am wondering whether we need to form another committee. Haven't we reached a point where we could discuss how to modernize the Senate in the chamber? Senator Greene and Senator Massicotte organized a meeting of senators and it went extremely well. The people who participated put a lot into it. They filled out a questionnaire, and there was a great deal of discussion.  14-11

Again, interesting. So much in contrast with how I myself perceive the questions and responses, see Appendix G. What am I not sensing?  n14-11

We need to organize how we look at this issue, and I hope that the 15-person committee will come up with some fresh ideas. On that note, I would like to ask Senator Cowan if he would agree to meet half way between an ongoing debate in this chamber and a discussion in a specific committee. I would ask him if he would agree to add a short paragraph to his motion that would require the committee members to systematically report back to the chamber on their debates and deliberations.  14-12

You say, "that the committee be empowered to report from time to time." I would like regular reporting. I would like there to be a monthly report in this chamber because let's not forget, honourable senators, that we will have new recruits in this chamber who will be rather lost. My concern is that if there are 15 of us discussing this, when we report everything back here, objections will be raised and in the end all the fine proposals we make will fall by the wayside.  14-13

Thus, to help all our senators grasp what we are discussing and take ownership of the changes and proposals that are made, I would propose a monthly report.  14-14

I therefore propose that, notwithstanding usual practices, in the first five days when the Senate sits each month, the committee report to the Senate on the committee's progress on its study.  14-15

For the committee to report regularly, the first five days are important. I ask if you would agree to introduce that. If so, I will not move a motion. If not, I will move an amendment. Thank you, honourable senators.  14-16

The Hon. the Speaker: With the agreement of the house, Senator Cowan, if he wishes, can respond to Senator Bellemare without closing debate. Is it agreed?  15

Hon. Senators: Agreed.  16

Senator Cowan: The rules talk about questions or comments, so maybe I can ask a question or make a comment and put it all together, with leave.  17

Senator Bellemare was kind enough to take me aside and mention the latter two points to me. The first part I didn't hear. Certainly, in the motion itself, I suggested that the committee be empowered to report from time to time, and I would certainly hope that they would not wait to complete the whole of their work before reporting back to us, but rather, as they came forward with a suggestion they wanted us to try, they would come and report on that in a series of interim reports. If we want to clarify that, as you suggest, I have no objection to that.  17-1

I might make another point by way of comment as this was a point that Senator Bellemare mentioned to me outside. She said, and alluded to it in her remarks, "Why don't we just do it all here instead of having a special committee?" My response to her, which I would like to put on the record, is that in my experience, when you have an important task and you make it the responsibility of everybody, it becomes the responsibility of nobody. I think this is such an important thing that I do believe we need to give this job to a select group who will be acting on our behalf and who will focus on this task, reporting, as you suggest, Senator Bellemare, on a regular basis to us by way of interim reports. If we give these people this particular responsibility, of course, any senator will be able to attend these committee meetings. They're not to be held in private. If the motion passes, I would suggest they be public. I think many senators, even those who will not be on the committee, will attend and provide the expertise that you speak about. That's my intention, and I readily agree to the suggested amendment.  17-2

(On motion of Senator Martin, for Senator Carignan, debate adjourned.)  18