MDRN-10

The Special Senate Committee on Senate Modernization

Consideration of methods to make the Senate more effective within the current constitutional framework: Issue 6

20th Meeting, October 26, 2016
with some "inked-in" comments in part relative to my essay and Brief. v.E.

Witness: The Honourable Hugh Segal,
Master, Massey College, University of Toronto 0

The Special Senate Committee on Senate Modernization met this day at 12 p.m. for the consideration of methods to make the Senate more effective within the current constitutional framework. 1

Senator Serge Joyal (Deputy Chair) in the chair. 2

The Deputy Chair: Honourable senators, it's my pleasure today to welcome you on behalf of the chair of the committee, Senator McInnis, who is caught outside of the capital today because of the work of the Fisheries Committee that is touring the eastern part of Canada in the context of its work. As deputy chair of the committee, he has asked me to preside over our discussions today. 3

It's my pleasure to welcome former Senator Hugh Segal, who is very well known to us and to our audience because when Senator Segal was a senator, he was very active not only on the issue of the Senate but on many other issues, and he has kept an interest in the evolution of our institution. 3-1

I will remind our viewers that on September 21 last Senator Hugh Segal and former Senator Michael Kirby issued a stimulating report outlining a number of recommendations on the future of the institution based within the parameters that I think every one of us recognize as our constraints within the present constitutional framework. 3-2

The Senate is not condemned to inaction. The Senate is an institution that evolves and it evolves within the parameters of the Canadian Constitution, one to which former Senator Segal was an instrumental agent of change in a former life when he was at the provincial level in the cabinet of former Premier Davis. 3-3

It's a great honour to welcome you, Senator Segal. It's a testimony to your interest in the institution, and we are looking forward to your presentation and to an exchange. You can expect that the members of this committee will have comments, reaction and questions to ask of you. So we will have a lovely discussion with you and I hope a positive contribution to the future of our work. 3-4

The floor is yours, Senator Segal. 3-5

The Honourable Hugh Segal, as an individual: Thank you, Mr. Chair. Thank you very much for the invitation to take part in your hearings and to make a presentation to contribute to your work. 4

I salute your decision to1 form this committee and to dedicate your report to the Honourable Pierre Claude Nolin. 4-1

When first appointed to the upper chamber by Prime Minister Martin in the summer of 2005, I was invited to attend a Conservative caucus meeting in Halifax. It was Senator Nolin who was kind enough there to take the junior senator from Ontario aside to explain how things actually worked in the Senate. His advice was solid, his counsel sage and his decency apparent. 4-2

I recall, as I'm sure do many of you, how often he spoke about renewing and refreshing Canada's upper chamber and how sincere he was on those issues. He was also a leading NATO parliamentarian and a proud son of his province of Quebec. Whatever he and I agreed on or disagreed on, my respect for his core motivation remains undiminished and very deep. 4-3

Senators, my purpose today is to be respectful of the work you have done and the work you have yet to do. I will be brief and to the point on those provisions of your report I would hope might be reconsidered. 4-4

May I respectfully offer this core premise, which underlines my submission to you today: For better or for worse, the present Government of Canada was elected with a clear mandate to reduce partisan influences, control and management of the Senate, and replace them with a frame of operation that is driven by independent senators, whether self-declared or appointed as such, under the new framework established for nominee vetting by the new government. These proposals were placed before Canadians before and during the election a year or so ago. There was no subterfuge or obfuscation. The present government won a clear majority under our first-past-the-post system last October. 4-5

With respect to the empowerment of, protection for, the full senatorial rights of independent or non-affiliated senators, voters have spoken with a clear and precise message. I also believe that the long-reigning convention of the Senate, respecting proposals for which governments have won a public mandate, should apply. While your recommendations about proportionality and caucuses not only being defined by party affiliation are very encouraging, I submit respectfully that they are too soft, too attenuated and not sufficiently crisp. 4-6

They appear to be about delaying and diluting what Canadians voted for and the government promised when in opposition, as opposed to measured and balanced implementation. There is a difference, we like to say in the hockey rinks of Kingston, between advancing the puck and ragging the puck. Any continued partisan control of the Committee of Selection, for example, the Internal Economy Committee, simply reduces duly vetted and appointed independent senators to less than robust participants whose role is solely determined by those with inherited partisan control from a previous Parliament. 4-7

I do not diminish the constructive intent behind the many recommendations in your thoughtful and considered report on selecting a Speaker, breaking up omnibus bills, more regional travel and the like. In that respect and in others, the report is actually stellar. 4-8

The time frame for progress, however, seems, if I may say so, somewhat relaxed. Your committee urges other committees to bring forth proposals for further consideration. Your report must go back to the chamber for further consideration itself and disposition, and this could easily take another two or three years before any actual change transpires. 4-9

I note, for example, recently that the Chair of the Selection Committee of the Senate moved to adjourn a motion made in the chamber some days ago by my good friend and yours, Senator Eggleton, relating to proportionality on committees. I hope he did so as to facilitate speedy passage and disposition of the matter by the chamber. 4-10

I respect that the government has chosen to be hands-off and let the upper chamber make its own changes, which is commendable. Using that space, however, to further delay and dilute an upper chamber of independent Senate plurality strikes this particular private citizen as less than constructive. 4-11

So we do disagree somewhat on substance, pace, intensity of change, and the need to give all senators absolutely equal rights to vote, speak, substitute on committees for each other, speak and vote on committee without accepting anyone's whip, least of which that of a political party. 4-12

As a citizen, I'm appreciative of the many hours of work you have done and are still committed to do and wish to salute you for that effort on this important modernization file. I offer the respectful and sincere hope that you will break out of the cycle that sees your committee call on other committees to make recommendations for consideration at some non-specific point in the future. 4-13

Hopefully, the Prime Minister of Canada will soon give a new list of senators for the Governor General to formally call to the Senate. We are edging steadily towards a plurality and majority of independents, but are edging far too slowly to facilitating full participation of those independent senators. It is, in my view, unbecoming and unconstructive having a chamber where we may have as many as 60 per cent of the senators having 17 per cent of the committee spots, which would strike, I think, most Canadians as completely unconstructive. 4-14

Any decision of the present partisan majorities in the Senate to do other than move immediately to do away with the term "recognized party" as defined in the Rules of the Senate as being "as a caucus recognized under the Canada Elections Act" is a direct betrayal of the decision reached by Canada's voters in October 2015. It may not be your intent to do so, but that, senators, is the effect. 4-15

That partisan definition currently prevents fellow independent senators from participating fully in committees, accessing funds for research purposes, and should they choose to organize themselves by Senate region for administrative purposes, the current Rules do not permit the same advantages available to partisan caucuses. 4-16

One could conclude that where we sit now is as follows: Every senator is equal but under the present Rules there appear to be degrees of equal that divide you. Legislation needs to be introduced, hopefully in the Senate, to amend the Parliament of Canada Act, to remove or replace the term "recognized party" wherever it appears for all the same reasons mentioned above. Changes to the act would also be required to replace any term defining the Senate as a partisan body, i.e. Leader of the Government in the Senate, Leader of the Opposition, their respective whips, et cetera. 4-17

Please understand that as a long-time partisan myself and as someone who was honoured to sit as a Conservative senator from Ontario for nine years, I continue to have great and abiding respect for the constructive force, for policy development, legislative organization, accountability and the grassroots connection that our political parties have and continue to provide within Canadian democracy. This is deeply relevant for our elected legislatures and Parliaments. 4-18

Imposing that measure of political party control, however, on everything that matters in the Senate, which is not elected—the agenda, who spends what, who speaks when, who sits with voting and speaking rights on committee—is a practice that built up over decades. But that does not make it right or appropriate for a future now defined by a new approach to the vetting of Senate nominees and a progressive, more independent body of senators. 4-19

As the limits to how the Senate can be changed have been set out by the Supreme Court based on the content of the British North America Act and the amending formula agreed to by Ottawa and the provinces when the Constitution Act was repatriated with a Charter of Rights and Freedoms in the early 1980s, it was to the Constitution of Canada that former Senator Kirby and I looked when responding to the Public Policy Forum's request for some thoughts on how a Senate dominated by non-partisan, unaffiliated members might operate. The original wording with respect to the Senate's composition embraced regional divisions in the Constitution, which would ensure that populous Ontario could not swamp in the Senate smaller population provinces. As well, the francophone minority in Canada could not be subsumed by the massive majorities in Ontario. 4-20

Majorities dominate based on representation by population in the House of Commons, as they should, but not in the Senate. Without that agreement pre-1867, we would not have had Confederation, and I submit to you we would not have Canada. 4-21

Senator Kirby's view and mine simply was that regional Senate delegations explicitly mentioned in the Constitution would be in an excellent position to, after the election of a new Parliament, make those organizational decisions through their conveners about committees, structure, management of the agenda, all essential for the Senate to operate during the life of that Parliament. 4-22

We anticipated no regional coherence on policy or tactics limiting the right of every single senator to vote based on their own expertise or conscience or to form working groups around issues or concerns in opposition to a particular government proposal or in support of it any way they might deem appropriate. 4-23

Our proposal did not endorse regionalization on matters of policy or politics, merely a regional organizational structure reflective of the Constitution of Canada for organizing, after each new Parliament, the structure and operating framework for the upper chamber. 4-24

I'm delighted, Mr. Chairman, to take any questions or personal attacks you care to offer. 4-25

The Deputy Chair: Thank you very much, Senator Segal. I'm sure that what you have presented to us either in your brief or this afternoon will trigger many questions. I already have a number of senators who want to ask you questions or exchange comments. 5

Senator Massicotte: Thank you very much, Mr. Segal, for your presentation. It's always interesting and very stimulating, as the deputy chair said. 6

You obviously referred to the organization of the Senate for administrative reasons on a regional basis because they had the constitutional debate 150 years ago. Did you consider other forms of organization? Obviously, the purpose of any form of organization is to have everybody contribute their maximum to the best decisions and legislation, and there are all kinds of other organizations. The United Nations is a different organization. Did you consider any other? You basically diminish the Westminster model because it is too partisan. You talk about regions. How about some others? Did you consider those? 6-1

Mr. Segal: We did take a look, for example, at the notion of working groups that would be put together in a Senate for the coherent advancement of particular views on issues like poverty, economic growth, foreign policy, and we think that is excellent. I may add that the recommendations in your own report relative to that process of groups that are formed, from time to time as may be appropriate, I think makes excellent sense. 7

The question we addressed, because it was the one put to us, Senator Massicotte, was how can the body organize itself so as to accommodate the new reality of a growing plurality and at some point majority of non-affiliated senators? Our view was that as a new Parliament produces the need for a Senate to organize its framework and operating assumptions, the best way to do that would have been through a regional process. 7-1

Now, the notion that that may produce a phenomenon like cross-benchers—which is very much now part of the Westminster model—troubled us not one bit. I know you have studied this issue. You were working very hard on a multi-partisan approach on Senate reform. A government in the United Kingdom has not had a majority in the House of Lords for many years. In fact, the dominant role was played by the cross-benchers. Therefore, governments must have cross-benchers on side one way or the other within the context of the suspensive veto to get their bills through the House of Lords. 7-2

We can all reference particular bills that were brought in; for example, the Blair government's bill on how long people could be detained without being put forward in open court. Prime Minister Blair thought he had a great compromise. It went to the House of Lords and they said that we are the nation of Magna Carta; we're not going to hold anybody unreasonably in jail without their rights being addressed. They set it aside very quickly. That was done by a mix of cross-benchers plus Labour and Conservative members of the Lords. The notion there would be some party definition that is part of the mix is not problematic as long as the core organizational premises are not driven either by the party in power in the house or the party which has the plurality because of a prior appointments process in the Senate after a particular election. 7-3

Senator Massicotte: You use the words "party" or "party politics" and the word "partisanship." You seem to have a negative connotation of that word, and you suggest it's not applicable in the Senate. Do you want to talk about that? What does our recent history indicate in that respect? 8

Mr. Segal: Senator Massicotte, the problem is not that there would be partisan groups who are active and engaged on issues in the Senate. That's part of our democratic tradition, and I would be against any effort to make that impossible or to diminish its potential. 9

Others around the table who were part of the history have their own perspective. It's not my view that when you have to make a decision on something at Internal Economy, such as the appropriateness of certain expenditures or whether people need to be disciplined one way or the other, that any partisan consideration should be part of that discussion, or that people feel they have to vote one way or another because of partisan direction from the other place. That, in my view, goes against the premise Sir John A. Macdonald and others had with respect to the Senate, that it should not replicate debates that take place in the other place, but to be a revising chamber with sober second thought and where independent voices are applied so as to make sure that legislation is technically correct; that principles of fairness, presumption of innocence, and all the rest are respected and consistent with our Constitution. 9-1

In that context, partisan control, either from the opposition or the government side, is in my view deleterious, unconstructive, or gets in the way of the legitimacy of the Senate. It may bring the Senate itself on occasion into disrepute, which is something none of us would like to see. 9-2

Senator Greene: I agree with so much of your presentation that I feel a bit sheepish picking on one thing I disagree with. 10

I certainly agree with your comments on the Selection Committee, on Internal Economy, and on your big statements regarding pace of change. I really do agree that we're lagging behind where we ought to be at this point. 10-1

I very much agree with your positions on equality and your hint that there is equality in a technical sense, but that equality is by degrees. I like that. 10-2

The thing that I got questions about, if not opposition, is the use of regions as an organizing mechanism for the Senate. When I look at the regions we have, two of them are provinces, which to me is a bit of a problem. A region has some commonality of geography, history, culture, economy, et cetera. The Maritimes are a region by that definition. Is Ontario a region? Ontario has a lot of regions within it, but is it a region on its own? It's hard for me to agree with that. 10-3

There is a danger with Quebec, as we all know and as Senator Pratte has pointed out, that potentially could lead to problems within the Senate. 10-4

In the West, B.C. and Manitoba, there is a lack of commonality. 10-5

The only way that regions might work is if we create new regions that are actually regions, rather than use the formula in the Constitution, which seems like the wrong way to go for many reasons. But in a practical sense it might be the right way to go. 10-6

I wonder if you could address those comments. 10-7

Senator Greene's words move us straight toward addressing the so-called "organizing principle" for debating issues, a concept foreign to me until I encountered it in the session with Senator Harder. My essay advocates that we have two groups of senators: about one-third of the Chamber being "citizens' representatives," the others "complex-problem solvers," (Ref). The citizens' representatives strive to be thoroughly conversant with the needs and desires of Canadians from all socio-economic and cultural strata of society, with regions represented in proportion to their populations. To be sure, this is quite distinct from the regions specified by the Constitution; one might consider this an "overlay." As a caucus they would speak for the heart and soul of Canada. The complex-problem solvers are the "hard-headed" ones and make up another caucus. General debates in the Chamber would revolve about a trade-off between desires and needs of Canadians as a whole. As for politics, that is the business of the Commons. n10-7

As for Bills sent up from the Commons, a non-political Senate's job is to consider them intellectually, not emotionally. Upon ensuring that they are properly framed and in accord with the Constitution, etc., they may be returned with caveats where warranted. And ultimately they may be vetoed, not on political grounds, but as a matter of broad public interest. As written before, the Senate's role includes being our parliament's emergency brake. n10-7A

Mr. Segal: By all means, Senator Greene. Thank you for your question and your comments. I remember fondly our time as seatmates in the chamber when I had the privilege of serving with you. I am very appreciative of the paper on Senate reform you issued some weeks ago. It reflected some of the best and most compelling premises around which the chamber you serve and I've had the privilege of serving can be of the most effective service to citizens of Canada. As a citizen of Canada, I thank you for that. 11

As often is the case, the term "region" is being a little bit pumped up beyond what Senator Kirby's intent and mine was in the document. Our view is simply this. 11-1

Let me go back to an organization which you all have great knowledge of. The Selection Committee meets after a new Parliament is elected. Based on negotiation between the people, decisions are made about who will chair various committees. The votes of that committee are always unanimous. There is never a shootout because there has been some back and forth among the various political parties about how that's supposed to work. Once that happens, barring something unplanned, the Selection Committee never meets again. The committees of the chamber go about their business in a very straightforward fashion. When substitutions must take place, the whips of the two parties, as you will know from your own experience, are engaged in that process properly. 11-2

Our view is that the conveners of the regional so-called delegations would meet once after Parliament is elected so as to have a similar discussion about the various framework issues that need to be addressed so the organization may move forward and be well-organized for that purpose. 11-3

I don't see that as two regions voting against another region. I see that as the same process of consensus, but rather than define who's at the table by partisan standing, one defines who's at the table by conveners elected within each one of the designated constitutional regions to sit at the table on their behalf. The notion that they would meet again after that transpired is of course possible but probably unnecessary once the actual bodies of the Senate are up and running and there's fair representation and proportionality respected on the committees in the way in which they operate and the various other important engines of deliberation in the chamber. 11-4

So I do not see the region having a life above and beyond that core organizational process. I don't see it as competing votes from our friends in Quebec and our friends in the Maritimes or our friends in the West or Ontario. I see it as conveners who are elected by their colleagues who sit around the table with other key officers in the Senate, come to conclusions about the framework, end of story. That would be the way I would propose to answer the very legitimate question you put. 11-5

Senator Greene: Thank you very much. I'll reflect on that. I hadn't discerned that previously from your testimony. Perhaps it's a solution. 12

Senator Tardif: It is a pleasure to see you again, Senator Segal, even by videoconference. I would like to raise a point that you did not make in your presentation, but that is mentioned in your report, A House Undivided. In the report, you recommend eliminating the minimum age of 30. A number of countries have age restrictions. In the United States, for example, I think you have to be 25 to become president and 30 to become a senator. 13

First of all, what is the basis for this recommendation? Secondly, since eliminating the minimum age could mean that a person would have a longer term as a senator, do you think the provinces would have to agree to this? 13-1

Mr. Segal: I am also delighted to see you again, even by teleconference. 14

Under the process established by the government, the candidates considered by the sitting prime minister are currently screened based on their life experience, in the education sector, for instance, as in your case, in view of your impressive career in the public sector, in medicine and in the business world. Candidates who do not have significant experience will certainly not be included in the list of candidates that the advisory board submits to the prime minister in order to fill the vacancies in the Senate. That leaves candidates who have significant experience and who are over the age of 30. 14-1

Imposing an age limit would exclude young Canadians, even though they might be stars in sports, for example, or might have made an outstanding contribution to saving lives. They would be told that they do not count if they are under 30. In my opinion, we could keep the requirement of having experience—for candidates chosen by the public if they clearly have outstanding qualities and accomplishments —without a formal rule setting a minimum age requirement. 14-2

As mentioned in my senate essay, "Many brilliant minds are much younger, notably among mathematicians. On the other hand, younger people are less likely to be cautious—simply a matter of psychological development. Why not have some brilliant young experts serve as squires to more mature senators?" (Ref.) n14-2

Senator Tardif: So you think that it would be the advisory board that could assess the scope of experience of candidates under the age of 30? 15

Mr. Segal: Yes. As I understand it, Senator Tardif, the criteria that the advisory board uses to select, from among the appointees, the best candidates from each province whose names will be passed on to the prime minister, are based on their accomplishments, experience, work and academic record. This process will all the same make it possible to select a number of candidates, regardless of age, who meet the criteria related to their ideas and their life accomplishments. 16

Senator Bellemare: Hello, former senator Mr. Segal. I am also very pleased to have the chance to talk with you. 17

I agree with much of what you said. As an introduction to my question, let me say the following. In considering Senate reform, I have always thought that one of the first themes to be addressed and one of the first corrections relates to bipartisanship. Unlike the senate in many countries around the world, the Senate of Canada has only two parties. So it is tempting for the House of Commons and the government to get an absolute majority in the Senate. Since Senators serve for many years, this could lead to dysfunction, which sometimes causes major problems. 17-1

I have to admit that after identifying this issue related to the fact that we need other groups, I was suddenly not in favour of creating regional caucuses. I shared the opinion of a number of us that it is not always easy to find affinities in the four regions. 17-2

It was not until later on—recognizing that, since we do not have a government caucus right now, we can therefore not have an opposition caucus—that I wondered how we could create something solid. I found my answer in what you covered in your report, the ideas that were presented by Senator Ringuette, and in the Constitution. Section 22 of the Constitution is very clear. It states: 17-3

22. In relation to the Constitution of the Senate Canada shall be deemed to consist of Four Divisions [...] 17-4

It goes on to name the divisions, without any reference to regions, just four divisions. 17-5

This is when my thinking started to change. I said, yes, why not. I am a senator from Quebec; others represent other regions. Why should we not, upon appointment, automatically become part of a group called a division, a constitutional division as set out in section 22? There would be four divisions and the territories would be divided up among them. Each of these divisions would be responsible for the administrative work. 17-6

Thinking about this further, I wondered what constitutes administrative work. It means selecting senators for committees, finding replacements, discipline, dealing with the provinces. In other words, there are a lot of little things that have to be done that in a partisan caucus can sometimes be used as a form of punishment or reward. Why not use this approach and, on another level, have groups based on affinities, as you discussed in your report. We could form a group based on the affinities of the Conservative Party and all the parties, as well as an affinity group that has nothing to do with a political party. A senator wishing to be part of an affinity group could register for a period of time and could renew that membership. Perhaps a budget for the affinity group could be potentially put forward. 17-7

Does my understanding of your model correspond to the image of an organizational structure for the Senate that would be based not on a "caucus"—this is where my opinion differs from yours since I would use the word "caucus" for the affinity groups only —, but rather on an organizational structure along the lines of the four divisions set out in section 22 of the Constitution? 17-8

I would like to hear your thoughts on this approach. 17-9

Mr. Segal: Your understanding of the report is correct. I agree with your understanding and your comments. 18

I have nothing against partisan groups, whether they are blue, red or NDP, or whether they are based on specific interests, such as agriculture, fisheries or foreign affairs. Why not? The administrative decisions regarding the organization of the chamber, however, must not be made by partisan groups. That work must be managed by the divisions, as you pointed out, which are highlighted in the Constitution of Canada as the very foundation of your institution. 18-1

Senator Tkachuk: Welcome, Senator Segal. How are you today? It is a pleasure to have you here. 19

It may not surprise you that I disagree with just about everything you said. I would like to ask a couple of questions, though. 19-1

How do you know there will be more independent senators appointed? 19-2

Mr. Segal: Because we have, for at least another three and a half to four years, a government with a working majority in the House of Commons that was committed to the appointment of independent senators. To date, they have appointed some, and I have no indication that they will stop doing that. 20

Under the normal cycle of retirements and other changes, that would bring us to an effective majority of independent or non-affiliated senators before the next election. The question is: What will be the operational rights of those senators as compared to those who are in partisan caucuses between now and the next election? 20-1

Senator Tkachuk: It seems to me if that's going to be the case, I'm a little freer and more independent about what senators choose to do. I made a certain pledge. I was phoned by a Conservative Prime Minister to serve in the Senate as a Conservative, and I intend to finish my mandate as a Conservative senator, and that's my right. 21

I don't care if they are all independent. If the independent senators are going to be appointed, soon they will be a majority and they can get their wish. They're going to be appointed to committees. They'll be the majority there, and they will organize themselves like a political caucus and do what they have to do to get government legislation passed. 21-1

I don't believe that they're going to be independent senators. I believe they are going to be government senators. They may not affiliate themselves with the Liberal Party, but nonetheless they will be the government party. 21-2

Mr. Segal: Well, let me say two things. First of all, as you and I well know, we disagreed on many things for the nine years I had the privilege of serving in an office down the floor from you, and it didn't affect our friendship or relationship one bit. So the fact that we continue to agree to disagree just indicates the friendship is as strong as it has ever been. 22

With regard to your right to respect the premise upon which you were appointed, your Conservative affiliation should be, in my view, undiminished, uncontested and unchallenged—period; full stop. I don't disagree with that at all. I'm really saying that the ability of bodies that make organizational and administrative decisions in the Senate to be defined by the partisanship that may exist for those who are in that body is a mistake under the present framework as laid out by the clear commitment made by the government in place. 22-1

Your premise about whether people are or are not independent is a completely legitimate perspective and point of view. I would simply say to you that if you think about the debate most recently on the assisted death bill and other debates that have taken place in the past, some of the finest moments of the Senate have been underlined when individual senators spoke not from a perspective of party on the issue, but spoke from a perspective of what they thought was beyond partisanship and in the broad public interest. 22-2

We saw that on the assisted death and dying bill; so I would, as a private citizen who doesn't see things as directly as you do, because I'm not there, conclude that the spirit of independence among senators is alive and well. The issue is how to have the rules in the chamber that will encourage that for those who choose to be appointed on that premise or self-declare, as some have done over the past few weeks. 22-3

Senator Tkachuk: Nonetheless, a political organization like the Conservative organization in the Senate, if we choose how we wish to appoint people to committees and put names forward to committees as chairs or deputy chairs I think is our business. If we don't wish to participate in that process, we have a right, as we presently do, to become an independent senator and, in other words, not be part of that caucus. 23

I don't see how forcing people to be something that they're not is going to achieve a more independent Senate. Someone has to move government legislation, and someone is going to do it and be organized to do it or else it will never get passed. 23-1

Mr. Segal: If you think about the so-called divisions referenced by Senator Bellemare, if you had a division that represented the senators from Western Canada, as we sit here today, a plurality of those senators would be affiliated with the Conservative Party. That's just the way it is. 24

So the new regional division that would be consulting with others for the purpose of organizational premises could not get away from that reality. It is what it is and has to be recognized and embraced. 24-1

I'm merely saying that if you want not to participate as a Conservative caucus in the appointment of people to various committees, or to do it in a way you feel most comfortable, that is appropriate. But that should not be, I would argue respectfully, the defining premise that determines how other members of the Senate who are not part of your caucus get to participate on committees or not. That should be governed in another way not defined by partisan interests. 24-2

Senator Tkachuk: I have one more point to make. The reason I joined a political party is so I would not succumb to only regional interests. I joined a political party so that issues of Canada are discussed, and we all come to some agreement on policies that affect the whole country. 25

The last thing I want to do is sit in a caucus and represent only regional interests. I want to represent Canadian interests from the perspective of a Conservative and a Western Canadian. 25-1

I think that's what all senators in their hearts want to do. They don't want to just represent Quebec. How bad will that be if there is Quebec, Ontario, Western Canada, the Maritimes, all fighting amongst each other? The reason our country is so successful is because we have national parties. To take that away is to take away the essence of our country and our parliamentary system. 25-2

Mr. Segal: I agree with you that it would be a terrible mistake if every issue that came before the Senate—foreign policy, fiscal policy and social policy—was defined by region A being against region B. That would be mistake. 26

I remember your own work on issues like Canada-Japan relations and the protection of Canadians from terrorist activity elsewhere, where you put the national interest above everything else all the time. 26-1

That being said, the notion that the regions would gather in their divisions at the beginning of a new Parliament to sort out the organizational framework within which senators could take whatever view they wanted is I think better than having those initial decisions only done by partisan fiat, which is how it exists as we speak. 26-2

Senator Tkachuk: I will agree to disagree. Thank you. 27

Senator Frum: I understood from your response to Senator Greene about the virtue of organizing in regional caucuses that it would provide for the principles of equality and proportionality among senators. But the obvious problem is that proportionality between regions in the Senate is greatly out of whack. You know this as well as anyone. The Atlantic region has 30 senators; the western region has 24. That has been a problem for many people in the West. Obviously that does not reflect the proportionality in the country. 28

I do not understand how, on the principle of proportionality, we would be well-served by assigning senators to committees based on the non-proportional "proportionality" of the regions. 28-1

Mr. Segal: Let me say, senator, that you are absolutely correct that we have a serious inadequacy in the way in which different parts of the country are represented. It would be my understanding that the only way to fix that would be through constitutional amendment, and the Supreme Court has given us some pretty serious constraints about how that might or might not be done. 29

The issue that Senator Kirby and I tried to address was for the purpose simply of making sure that all senators are treated fairly, regardless of their political affiliation or non-affiliation or the divisions that were established by the Constitution. Convenors they would elect—which is what happens in Westminster; the cross-benchers elect a convenor—would be a constructive way to sort those initial arrangements. 29-1

The notion that those regional bodies would continue to have a role in policy or in other matters is not something we recommended for the reasons that you have so carefully laid out. In fact, I would be concerned if that became the way in which the institution operated. But there has to be a process by which it is determined who sits on committees and how individual senators, partisan or otherwise, have their rights respected. We think that a process as set up by the divisions is a better way to do that than via a partisan division. 29-2

Senator Frum: The fact that the Atlantic region would always have greater representation on all committees strikes you as fair? 30

Mr. Segal: No, that's not what I said. In fact, what we anticipate in the report is that the Atlantic region would elect a convenor who would come to a meeting, as would the Ontario, Quebec and Western regions. Those convenors would meet with the other officers of the house and decide on the framework for proportionality on various committees. They would reflect, in the best of faith, the actual proportionality in the Senate. The notion there are 30 senators in one or 24 in another is interesting, but I don't think it would have any impact on that deliberation. 31

Senator Frum: I see. Thank you. 32

Senator Mockler: Senator Segal, thank you for your presentation. I have read A House Undivided: Making Senate Independence Work, which you co-authored with Michael Kirby. I have no doubt that much will be written in the coming years about the modernization of our institution. 33

Each of us, in one way or another, has become a student of change, and considering what we are hearing from Canadians from east to west and from north to south, I am a bit concerned not to say worried about the changes that could threaten minorities. As parliamentarians, we are under the Westminster system and the opposition plays an important role in this system. 33-1

I would like to know, first of all, whether you think all senators should be elected. 33-2

Secondly, in view of all these changes, if we decided to disregard the Westminster system, what would the next constitutional step be? 33-3

Mr. Segal: Thank you, Senator Mockler, for your questions. First, with regard to electing senators, as you know, several of us including myself have debated how senators should be elected. Unfortunately, the Supreme Court rendered a decision that rules out this possibility for a long time unless there is a constitutional agreement, which I think would be very difficult to reach. 34

As to the role of the opposition, I profoundly agree that each senator has the right to continue to serve according to the traditional role of the Senate and represent linguistic, sexual or other minorities. This is important. It is a key role of the second chamber. 34-1

In the Westminster tradition, a member elected by senators in a specific region works with those elected in other regions. As to setting up committees, they take seriously the need for senators who represent francophone minorities, for instance, or cultural minorities. In my opinion, we must absolutely guarantee the representation of minorities, and there is nothing in your report that diminishes the fundamental role of protecting minorities in the upper house of the Parliament of Canada. 34-2

Senator Mockler: I had the pleasure of taking part in a round table in the Moncton area and I would like to point out the role that you played in representing Acadia, because your presence was always felt. I salute you, because you served with great distinction. 35

My final question is as follows. In the Westminster system, if the changes being considered are made quickly, would this not weaken the role that parliamentarians play in protecting minorities, for instance? 35-1

Mr. Segal: That is an important question, as were all the others, in fact. In my opinion, there must be two avenues: first, amending the Parliament of Canada Act in order to avoid the partisan process, and second, making changes to Senate procedures, which all senators have the ability to do in order to uphold the proportionality that is currently changing. Our approach must reflect the importance of minorities. 36

In the Westminster tradition, those appointed to the House of Lords represent all religions, all linguistic groups, all cultural groups, all scientists, academics, those who work with refugees. The House of Lords is highly representative of Britain's tremendous diversity. The fact that the House of Lords usually acts in a non-partisan manner is one of the reasons that the British people have great respect for it. 36-1

Senator Tannas: Senator Segal, I apologize if you've answered this; I have arrived a little late from another committee meeting. 37

There is a saying that I've always enjoyed, which is we should always try and embrace the genius of the "and" as opposed to the tyranny of the "or." I think our committee report actually presented the solutions to the administration/organization of senators going forward through "and"; caucuses that are formed around partisan activities and the ability for non-partisan senators to organize themselves in groups as small as nine people. 37-1

I don't understand why, other than we all get dug in on our own answers to a problem. Our report was unfortunately not out before yours, so we both tackled that problem and I think we came up with two solutions. We could argue which solution is best. I'll say that I'm dug in on the solution that I helped create. However, would you not say that the idea of having both, having non-partisan organizations that are there to help senators perform their duties and partisan organizations for similar purposes, is as good a solution to the problem as the one you're advocating which was around the regions? 37-2

By the way, that is the Westminster system in the House of Lords right now. We have partisan organizations and non-partisan organizations. Senators function within one or the other, and it works just fine. 37-3

I would say this: My recollection of the testimony from the convenor of the cross-benchers would be it would be chaos without opposition, government and partisan activities. That is my recollection of what he had to say, and that's in my mind. Frankly, when I look at the way in which we operate, it's very real. I wonder if maybe you had had the benefit of reflecting on our report you'd be so passionate about the regional thing as being the answer. 37-4

Mr. Segal: I did have a chance to read your report. I did say at the beginning of the meeting, when you were doing other work on behalf of the public, that many of the elements of that report, including the references of caucuses and others around issues, were exemplary and directionally very compelling. I want to be clear that you and I don't disagree on that. 38

You talked about the notion of "and" versus "or." I am not dug in on the discussion paper that Senator Kirby and I did. We were invited to do a discussion starter to engage people about a range of different ideas. So I don't for one minute assume that the Senate in its wisdom, as it goes forward to make changes, will not come up with a better formula than may have come up in the document that Senator Kirby and I worked on. But—and I use the "but" advisedly—there is a difference between "and" and "or" and "but." As long as the partisan caucuses—I say this with the greatest of respect—are in control of who sits where, who gets budgets, how economic matters with respect to the Senate are determined, then you don't have "and" or "or"; you have one big "but." And the "but" is that if you're not a partisan, you're a third-class citizen. That is not the intent of your report. But if it does not get addressed in a more direct way, I fe38-1ar that could be the outcome, which would, no doubt, be not something that people want. 38-1

I think where we sit today, the notion that someone would have to sit on a committee because they're independent because they accept the whip of a partisan party is not what you have in mind. It's not what others have in mind. But as we sit here today, you want to get replaced on a committee because someone else can't be on that committee unless a motion is brought into the chamber. As we speak, the partisan caucuses on both sides have the right to decide whether that replacement will take place. That is an unwitting violation of the rights of every independent senator to engage fully. That's all we meant to say. But your point about looking for middle ground I think is very constructive. 38-2

Senator McIntyre: I would like to go back to the issue of regional caucuses. In your report, A House Undivided, you suggest replacing party caucuses with regional caucuses. 39

That said, I draw your attention to the committee's recommendations 7 and 8, which would allow non-partisan senators to form caucuses recognized by the Rules for the purposes of equitable funding and procedural rights. Would these recommendations be a solution to permanent, purely partisan caucuses? 39-1

Mr. Segal: First of all, Senator Kirby's report talks about the regional divisions that are set out in the Constitution. The ultimate objective of those belonging to these divisions is to appoint a representative responsible for organizing the Senate after a new election. Recommendations 6 and 7 are very positive in my opinion and will provide for a Senate that effectively represents all the proportionalities. 40

Without suggesting an amendment to the Parliament of Canada Act, however, which rejects the idea of partisan control, which establishes the caucuses you suggested and redefines the role of regional divisions, there will be a problem recognizing of the ability of independent senators to play a real role in the Senate. 40-1

Senator McIntyre: Let us not forget the issue of regional caucuses. I am thinking of major national issues and especially tricky or controversial issues that cross provincial borders. How would a structure such as regional caucuses enable the Senate to assert its recognized expertise on these matters? 41

Mr. Segal: I agree with the comments made by your colleague, Senator Tkachuk, namely, that senators want the freedom to act in the national interest without being limited by a regional caucus. 42

That is why our suggestion is very clear. The regional divisions should be consulted on administrative matters only. Regional disparities then have nothing to do with the operation of debates, their content or the subjects discussed by committees. 42-1

This would all proceed as before, but for the organization of the Senate and budgets, a regional process would be required as opposed to one along partisan lines. 42-2

Senator Wells: Thank you, Senator Segal, for appearing. 43

We talk about changes and in your recent publication you've talked about changes to the Senate to make it better. Many of the things that the Senate has done in the last 150 years, specifically in most recent memory, are debates on Bill C-14, which everyone holds as one of the great things that we've done and been able to do, and the committee work and, in fact, a lot of the flexibility that the Senate is known for in adjusting its practices as it goes along. I'll say that much of that flexibility you've used to your own advantage in your strategies and projects as you've worked through. 43-1

I have two questions. In hardening the Rules of the Senate, don't you think we would lose that flexibility that has allowed us to evolve over the years into what is essentially a very effective organization? 43-2

Mr. Segal: Senator Wells, if we were talking about the report in any way suggesting that these regional divisions should be dominant forces in the debates, discussions, laws discussed, questions, reports, then your concern would be, in my view, completely justified and well made. But my only purpose and the purpose of Senator Kirby was to suggest that when the Senate meets to determine the basics such as who sits on what committee and how the chairs will be elected, that should be done by the divisions that are provided for in the Constitution. After that, those divisions should have no say in affecting the way independent senators, whether they choose to constitute themselves as partisans or otherwise, get to participate. 44

The precise flexibility that you reference is one of the great strengths of the Senate. You're right: I was one of those who benefited from that, and I wouldn't want to diminish that in any way. That being said, I worry that in the present context we face a circumstance that while we have new senators, who are non-affiliated, being appointed in greater number, their rights will be diminished when compared to those sitting in partisan caucuses. I'm not saying that's your intent or the intent of others in partisan caucuses, but that's the effect unless the Parliament of Canada Act is changed. 44-1

Senator Wells: Thank you very much. 45

The effort to have the government represented in the chamber, which it has always been, is leading us down a path where there are fewer and fewer members of the opposition. One of the hallmarks of our system is those who propose and those who oppose, and that provides the balance that Canada requires in its law-making. 45-1

As we go forward, there will always be government representation. The role of the opposition may not be diminished but the ability to carry out its role will be diminished with the appointment of more non-affiliated senators, and obviously the Conservative Party is not going to grow as an opposition under the current rubric. 45-2

My feeling is that instead of a chamber of sober second thought, there's going to be a chamber of obedience with this new dynamic. What's your opinion on that as we go forward in the next four, five or six years? 45-3

Mr. Segal: Senator Wells, I certainly understand that concern. I am one of those who believe that a strong opposition is fundamental to democracy—period and full stop. 46

Having said all that, the notion that a government of the day of any affiliation has to work with people from more than one group in the Senate—those who may be in an affinity group because they're Conservatives or because they are concerned about the rights of our farming or fishing community, those who care about economic productivity or the appropriate balance between energy and the environment—the fact that a government through its representative in the Senate has to corral people from those different groups in order to get legislation passed would, in my judgment, increase the power of the Senate. No government could count on a slam dunk, as has been the case in the past when governments had a working majority. 46-1

That would increase the relevance of the Senate, the authority of individual senators, and in my view create an opportunity for senators who agree on a particular bill to put their own budgets together for research and other activities to launch a significant attack on a piece of legislation they didn't like, or to broaden the debate at committee on matters that the government of the day hasn't considered. That is not now limited by our partisan constraints. 46-2

I would share with you the notion that opposition that is contextually related not to one's party but to a bad piece of legislation that should be stopped or diluted would be a way that would increase the salience of the Senate and the respect that Canadians have for the Senate, which in my judgment it very much deserves. 46-3

Senator Cools: I'd like to welcome our former colleague Senator Segal. I've been calling you Senator Segal for a lot of years and it doesn't disappear easily. 47

I'm very worried about what is going on in the Senate, because the Senate continues to fracture into even more groups. Momentarily a whole new batch of senators will arrive. I do not understand how people can be mobilized to support measures before the houses and to vote on measures. I don't believe that just leaving these things to people's personal, private beliefs and thoughts will succeed. I simply cannot see it. I don't understand why parties are worthwhile institutions in the House of Commons and not in the Senate. 47-1

I find myself greatly worried because ideas for change are popping up everywhere, in every situation, and I don't believe that the business of reform can function that way. 47-2

Historically, the houses of Parliament have rejected novelties. These houses like precedents, proof, customs, laws and practices that have been well-honed, well-aired and well-respected. So many novelties are coming at us at such a rapid pace; I just don't see that they can work. I'm deeply concerned about continued fracturing. People do need some principles, ideas and debate to rally around. I do not see that happening as the Senate is currently moving. As a matter of fact, I see more groups of individual senators forming who will coalesce by whatever they see fit. It's a serious problem. 47-3

Historically, the business of a government in the Senate and opposition in the Senate is quite ancient. Senator Segal, I'm sure you would know this. Somewhere around the Bill of Rights of 1689, soon after the Stuart rebellions, King William III and Queen Mary II made huge advances because they began the essence and substance of responsible government. That means that they agreed with the House of Commons. It was a parliamentary war. The King then agreed that he would choose his ministers from among the members of the two houses, and in turn the business of the King would be conducted in the houses, not through the personal intervention of the King, but through his ministers, who are expected to lead in both houses. 47-4

So I don't understand the dismissal or the setting aside of a process or a system that has worked quite well. I set aside some of the unfortunate abuses of power we've seen in recent years by certain leaders, but the principles are fundamentally strong and valid. I really cannot see anybody coming forward with a better principle. Do you have any remarks or thoughts on that? 47-5

Mr. Segal: Yes, indeed. 48

Senator, I do not ascribe to the view that the role of political parties should be prescribed or diminished insofar as they engage on the King's or the Queen's business in any one of our two houses. 48-1

You made reference to some unpleasantness in the past. I do believe, however, that the way the Senate makes decisions on administrative and other issues, that the less partisanship in that process, the better. If I may be so bold, I have seen you serve with great distinction as a member of one political party in the Senate. I've seen you serve in another political party. I've seen you serve as an independent. In every one of those contexts, the wisdom, judgment, principle and engagement on behalf of the people of Canada was undiminished, especially for those who were being mistreated. 48-2

Other senators might not quite get to your level of contribution, but someday they may have the capacity to do that, whether they're sitting as Conservatives, official opposition, in a government party or as independents. For better or for worse, we now face an onslaught of new independent, non-affiliated appointments. All Senator Kirby and I are suggesting is that we need a framework so everybody can participate fully in the deliberations of the process. 48-3

Believe it or not, when Senator Kirby and I were meeting about the context, I asked the question which I thought you might ask: What happens to the Royal Prerogative if we go down this particular route? I know how important that has been to you, and I can't think of anyone who has spent more time discussing and debating the importance of that prerogative. 48-4

It is up to the so-called Government Representative in the Senate to move on behalf of that Royal Prerogative to ensure that decisions made in the House of Commons are given proper consideration, due debate and discussion in the second house. That is the task that he and those who serve with him have now to undertake. I don't know that keeping the old partisan structures in place is necessarily helpful in the present context. 48-5

Senator Cools: The current problem in the Senate right now is that, yes, there's a government leader in the Senate, but that government leader is not a member of the cabinet. For a long time, it has always taken a member of the cabinet, a member of the government, to declare that this item or that item is government business. This is a matter that concerns me. 49

As a matter of fact, I've even contemplated moving an address to His Excellency the Governor General to appoint the government leader a member of the government; in other words, a member of the ministry. 49-1

These are very important and difficult things. You cannot make something if you are not of it. A human being will not reproduce a reptile. A reptile will not birth a human being in reproduction or propagation. A government leader, to produce government business in the Senate, must be a member of the cabinet. That is why for donkeys' years, the government leaders in the Senate were members of the government. It's not good enough to make him a member of the Privy Council. It's a member of the government. I'm sure you've thought about that. 49-2

Mr. Segal: Senator, I have. I recall your contribution to the debates when Senator Carignan was given the role of leader, but not with cabinet rank, for whatever reasons back then. I think you raised the very same concerns as eloquently as you did at that time. 50

For better or for worse, we now find a circumstance where a duly elected government has chosen not to be led in the Senate by a member of the cabinet. Now, that may be a decision which historically will be questioned over time. It may be a decision that becomes problematic. The question we tried to address as carefully and as respectfully as we could was how do you operate within that particular context? 50-1

The Privy Council Office gave Senator Carignan the necessary resources to do the job of a de facto leader in the Senate without being a minister of the Crown. I don't believe the present incumbent in that role has been given those resources, and I think that makes your problem even more serious than the one you've already laid out. 50-2

Senator Omidvar: It's wonderful to see you, Senator Segal. I only wish my time at the Senate would have coincided a little bit with yours so I could have learned all of the magic that you have in your experience. 51

My question to you is about the first part of your remarks. I do feel, like you, impatient with the substance, pace and intensity of change in a very remarkable, historic and storied institution, but along with that comes a way of doing things, practice built in over decades that is really hard to shift and change. Whilst I respect the history, I also look forward to the future with some optimism. We are in a period of great transformation and change. 51-1

In your view, with respect to proportionality and equality for all senators, what should happen first and under what time frame as we are currently constituted, which means without the regional representation and, second, as per your recommendations of moving into a regional or divisional arrangement? 51-2

Mr. Segal: Thank you, Senator Omidvar. Let me say two things. 52

First of all, I think that it is within the purview of the members of the Senate now to make sessional changes with respect to protecting proportionality. In my view, that should happen right away. There's no need to hypothecate that or to put that off. That would go a long way to ensure that all senators, partisan and non-affiliated, would be treated with the same rights in the context. 52-1

Second, it would be my strong and respectful recommendation that a group of senators, with the help of the table, put together amendments to the Parliament of Canada Act necessary to provide a new framework by which the Senate will operate consistent with the notion of the equality of all senators and moving away from the notion of partisan control on all the levers of power. 52-2

Now that bill might not pass quickly. That bill could be delayed. That bill could be adjourned time and again as it is in the purview of the Senate, but if the sessional changes are made, then real progress would be measurable and have an impact on the life of both present and new independent senators who are yet to arrive, and progress would be clear. 52-3

The other thing I would say through you, if I may, to colleagues who may be opposed to any of these changes, is the good thing about changing the sessional rule is if it doesn't work for some horrific reason, you can change it back in the next session. The good thing about making an amendment to a bill that defines the Parliament of Canada by party is that if it is problematic, as has been suggested by Senator Cools, you can bring in another piece of legislation to change it back. It's not a constitutional change. It's not forever. 52-4

I have sat in many debates in many places, including in the Senate, where people have said, "Why don't we try something which appears to make more sense now, understanding that we may decide in two or three years it wasn't quite as good as we thought?" 52-5

The notion of moving very slowly on all changes so that nothing happens and a new crew of non-affiliated senators are appointed, who are subjected to the same unwitting dilution of their rights, strikes me as completely out of keeping with the kind of institution you and your colleagues around the table serve to the very best of their ability. 52-6

Senator Pratte: Senator Segal, my concern with the regional caucus idea, which is not only your proposal but also the Government Representative's proposal, is not so much with the initial stage of the idea where regional caucuses would take administrative decisions and not where policy decisions would be taken but rather what would happen with time. That is, regional caucuses would be the only source of power in the Senate. They would take decisions on committees, offices, chairmanships of committees and travel. They would be the only source of power, and they would also be the only permanent structures since the other affinity groups would be transient, probably. Therefore, the only source of power and the only permanent structures would be regional structures. 53

With time, they would probably be subject to pressures from regions, provincial governments, who would expect that regional caucuses vote according to regional interests. So what you envisage as weak structures, inoffensive structures, with time may well become more powerful than you think, a little bit like provincial governments in 1867 were seen as very weak structures by Sir John A. Macdonald and others and became quite powerful. 53-1

I wonder if we could not reach the same objective of a less partisan—if that is what we wish—Senate with not as risky scenarios as what are now attempted with regional caucuses. 53-2

Mr. Segal: Thank you, Senator Pratte. May I just say how honoured I am as a Canadian to have you here serving the country. I know of your immense work as a distinguished journalist and editorialist and the courage you showed in the face of some very challenging circumstances. You sitting at that table and serving in the upper chamber is something about which all Canadians can take immense pride and encouragement in. 54

I did read your very thoughtful analysis of the risks of more regionalism in the Senate. I agree that if those divisions became policy instruments, if they became vetting organizations through which policy had to be considered, the risk you lay out is very genuine and real. But as I only see those divisions being there for the organizational framework, period, and that while now premiers can call senators on issues if they choose to—I had that happen in my time, and I'm sure others around the table have had the same thing—that does not mean that a senator is tied to the region from which he or she comes, depending on how they feel on a particular issue, as Senator Tkachuk has said. So I would be very much opposed to the notion of those divisions having a life beyond the initial organization, period, after every Parliament. 54-1

While the risk you lay out, sir, is absolutely possible—the power of presence can sometimes produce more power and authority than was initially considered—I expect there would be countervailing efforts. Those people who choose to constitute themselves as a partisan working group, those people who have strong views on the economy and those people who have strong views on federalism would resist the effort of any regional delegations or divisions to exert undue power. 54-2

Quite frankly, I know from the Selection Committee activities—I once chaired that committee—if that committee had acted in a way that was absolutely unfair, that didn't reflect the regions of the country, the various concerns, the different shades of politics, that it would have faced a revolt, very clearly, from other members of the Senate, which would have been justified. 54-3

The same thing would happen to a committee formed of the convenors of the divisions if they acted in a way that was insensitive to the broad public interest and the right of every senator to constitute his or her work in the way they deem appropriate and to work in affinity groups as they decide is appropriate going forward. 54-4

So your caveat is well taken, something which putting this in place has to be accompanied by. Having said all that, I think it's a better option, I say with respect, than where the institution now finds itself, where the rights of independent and non-affiliated senators are dodgy, to say the least. 54-5

Senator Pratte: I would just like to add that I thank you for your comments. I think it is a risk not worth taking and I don't think we need to take it. There are other solutions to the problem. 55

Senator Massicotte: Let me jump to a subject you did not deal with in your presentation, but I would appreciate your opinion on it, and that is the right in Canada where the Senate has a veto right, effectively, on legislation, whereby both houses must approve legislation to become law. Other models have varied that to some degree, for good or not so good reasons. 56

What is your thought about that? Right now, as you know, if we don't agree with the House of Commons, we can go back and forth. There's a process where we go to a joint committee, and again we could disagree. At the end of the day, as has occurred on a couple of occasions, the Senate has ensured that certain legislation does not pass. England has chosen otherwise, given the non-elected nature of it. 56-1

What are your thoughts regarding the extent to which we should use that veto right? Is it appropriate given our non-elected status and so on? 56-2

Mr. Segal: Senator, I would very much be in favour of the Westminster model. For due and historic reason, they came to a conclusion that the upper chamber could not have the same authority on all matters as the House of Commons. 57

What we recommended in our report at the beginning of every Parliament, because we can't make a constitutional change, for obvious reasons, the Senate would have a resolution before it about suspensive vetoes. That would mean if a bill came from the house that the Senate members, in their wisdom, decided was poorly framed, rapidly brushed through, not carefully considered—and you and I can think of tax bills and others where that work was done extremely well in the Senate of Canada, in the interests of the people of Canada—then voting it down would constitute a six-month veto. That would produce a conference which has been operating not in real terms, but did operate back in the late 1940s, between members of the Senate and the members of the house to deal with the changes that were necessary to get it passed. If that didn't work, after a period of six months the will of the House of Commons would apply. 57-1

I think the veto is one of those things that leads to public distrust of an upper chamber that is not elected, even though it has been used very rarely, to be fair. 57-2

The notion of a suspensive veto where thoughtful members of the Senate can point out, or the government of the day, where the House of Commons has made a clear mistake, and the six-month period giving Canadians a chance to participate and engage would be a very constructive way to enhance the standing of the Senate by actually reducing its de facto constitutional power, not by changing the Constitution, but by the Senate choosing to govern itself in that fashion. 57-3

Senator Greene: Early in your presentation, you mentioned the Board of Internal Economy, which as we all know is a vastly different committee than the other standing committees. It deals with administration, whereas all the others deal with legislative review and public policy. 57-4

Does the difference with regard to the Board of Internal Economy mean that the board members should be selected on a different basis than the other committees? I don't mean to prompt you, but my general view is that perhaps they should be elected by the whole chamber. 57-5

Mr. Segal: I think what actually happens with the Board of Internal Economy is the government of the day, in negotiation with the opposition, proposes a composition of that, and they are in fact elected in the normal course. 58

I would argue this: One, I associate myself strongly with the Auditor General's view that the matters of individual senatorial expenses should be dealt with by an outside body not controlled or populated by members of the Senate itself. That would, in my view, contribute to the credibility of the process and would mirror Westminster, which put in place an Inspector General because of the difficulties they had with excessive expenditures alleged in the House of Lords. 58-1

The role of the Internal Economy Committee should be the administration of the Senate itself as an institution—personnel policies and expense policies writ large—but the individual adjudication of individuals who may be in difficulty should take place outside so no one can allege undue partisan influence for or against an individual in those deliberations. 58-2

Senator Bellemare: I would like to go back to the management of the Senate under a model based on the four divisions. You said that the four representatives of the groups would meet with the government representative to manage the Senate. What are your thoughts on the selection of the government representative? Would that person be elected or appointed? 59

Mr. Segal: Elected by members of the Senate, is that your question? 60

Senator Bellemare: Yes, how would a government representative be chosen to ensure their independence and to serve as liaison between the two houses? Is that person necessarily selected to win the confidence of the government of the day or are they elected? Perhaps you have not considered this. 61

Mr. Segal: In accordance with the principle highlighted by Senator Cools a few minutes ago, the government representatives in the Senate must be appointed by the government. This would at least create a link between the representative and the government's view on managing debates on fundamental issues in the Senate. 62

Secondly, I think the government representative in the Senate must work closely with the representatives elected by the regions, and that these representatives, before any decisions are made, must consult the members of their groups—whether blue, red or independent—in order to represent their views in a fully balanced way, such as when they are dealing with management issues with the government representative in the Senate. 62-1

Senator Tkachuk: This whole debate is a bit disturbing. I thought and believed that the Rules of the Senate were there to protect the minority parties. The Rules of the Senate don't really protect the government and what I would consider a majority party. They protect people like Senator Cools who, as an independent, have been able to influence legislation because of the way the Rules are set up. 63

By diminishing the role of the official opposition, which is what we're doing here by what you said, and placing all of the power in the Government Representative, which is what you just said, he will be the person who will administer and talk to all the facilitators of all the regions, and that's unheard of. 63-1

We get to decide, in our Conservative Party, which members get to serve on committee. We nominate people; we make those decisions; we have caucus meetings. Those decisions aren't made by the Government Representative. That's not his or her business. That's our business as the Official Opposition. 63-2

Mr. Segal: I would argue that your reflection on what constitutes your business is absolutely reflective of the Parliament of Canada Act, which governs the way the Senate operates, and so you are being completely faithful to that provision. I understand and respect that. I merely make the case that with respect to the future that act has to be changed so that on the administrative structure of the Senate and who sits on committees, including committees that deal with the Rules of the Senate, there is proportionality which does not come because a partisan party or two decides it might be a good thing, but because the representatives of the divisions working with the Government Representative in the Senate reflects the will of the Senate that those Rules be respected. It's not a partisan party A or partisan party B that makes that decision in its own closed caucus. 64

It is free to do so with policy matters, fiscal issues and any matters that come before the Senate, but the organization of the Senate should be outside the realm of partisan control. That is a change. You're absolutely correct to point it out. I understand there are risks, but I think the risks of the present system proceeding without modification are even greater. 64-1

Senator Tkachuk: That's exactly what we do now. When there are a larger number of independents, they are going to be on Internal Economy, as they are presently, and there will be more as they are appointed. I do not understand how they are not represented because they're going to be represented in a proportional way. 65

We have had two parties. We haven't had three, four, five and six. We have to get used to it, but there is absolutely no question in my mind that that's exactly how, in the end, it is going to work out and what we're recommending presently. 65-1

Mr. Segal: Let me give you one specific example. If an independent member of the Senate wished to replace a senator who is unable to attend various committee meetings, at the present time that independent senator has to prostrate himself or herself before the whips of two major parties in the Senate to see if they will sponsor a motion in the Senate to make that person a member of the committee. In other words, that individual's right to be on that committee as a matter of merit, as a matter of interest is secondary to how the partisan organizations happen to think their interests are advanced. In my view, that's a serious dilution of the rights of every senator to be treated fairly and responsibly without regard to whether they are partisan or not partisan. And you and I will just disagree on that. 66

Senator Tkachuk: We certainly do. 67

Senator Cools: Thank you again, Senator Segal, for being here. 68

I'm sure that you are aware that in 1864, when the fathers came together for their discussions on a federation, the U.S. Civil War was raging and Canadians were worried about annexation and a host of problems. But the point I'm driving at is the Fathers of Confederation canvassed those issues, particularly suspensive vetoes. They were informed of the sentiments in the U.K. at the time moving towards disembowelling the powers of the House of Lords. The fathers considered all that and rejected them and chose not to give the Senate any limited votes, suspensive or otherwise, because of the nature of the structure of the country being a federal state and not a unitary state like the U.K. 68-1

Many of these decisions were constructed and created because of the nature of the federation, which means different from province to province. The fathers wanted to provide protection against the possibility of a bill being adopted that would hurt or damage or impair the powers of any particular province. 68-2

Remember, these fellows came together in a very admirable way, a little suspicious of each other, but at the end of the day they were able to reach agreement—a fantastic and a wonderful thing. But the agreement contemplated many of the issues that you are raising. They wanted the ability for somebody in the house to be able to defeat a bill that would hurt a province. At that time the province that came most to their minds was the province of Quebec. 68-3

These are built-in protections that the people of Canada have in these different ways, and this is why it is always important to keep contemplating the reasons behind every single statute and every single rule. 68-4

Sections 53 and 54 of the British North America Act, which speak to the financial powers of the Senate, gave the Senate every power in a finance bill, including to defeat them. The only limitation is that a finance bill has to originate in the House of Commons in the hands of a minister. 68-5

I see the Constitution of Canada as retroactive or backwards-stepping for us to want to take the Senate to a day where it would only have a suspensive veto over important legislation. That would not work at all. 68-6

Mr. Segal: We will agree on the fact that no constitutional change to limit the power of the Senate is called for and I'm certainly not making that recommendation. I am saying, however, that if senators chose to operate via suspensive veto—I think of Senator Angus and his Finance Committee stopping a bad piece of legislation that changed the tax consideration for the film industry in a way that became retroactive censorship. The Senate stopped that, not by defeating the finance bill but by delaying it in committee so long that the government in its wisdom withdrew that provision. There are many ways for the Senate to operate, and I don't think a suspensive veto, voluntarily embraced by the Senate as a sign of goodwill, would necessarily be problematic. 69

Senator Cools: I remember one day Senator MacEachen told us he buried a bill by not ever letting it get out of committee. These are all tactics. 70

The Deputy Chair: Thank you very much Senator Segal. It was most helpful for each and every senator to listen to you. I think the exchange in which you have participated shows how much we want to make the most appropriate and wise recommendation in all respects of the institution and its role in our federation. 71

Thank you very much, Senator Segal. I don't need to keep you posted on the future of our work. I think you will be made aware of it very easily. 71-1

(The committee adjourned.) 72

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