 CANADA The Special Senate Committee on Senate ModernizationConsideration of methods to make the Senate more effective within the current constitutional framework: Issue 7 21st Meeting, November 16, 2016 Witness: The Honourable Senator Elaine McCoy, 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 Tom McInnis (Chair) in the chair. 2 The Chair: Honourable senators, today's meeting is in public. 3 Over the next few weeks we will be hearing from the leadership of the different Senate caucuses and groups. In my invitation to each of them, I asked them to reflect on specific questions. We have heard from the Honourable Claude Carignan, the Leader of the Opposition; previous to that, we heard from the Honourable Peter Harder, Government Representative in the Senate. 3-1 Each of the leaders has been posed the same questions, which are: Do you believe that political party caucuses have a role and a future in the Senate? Does a modern Senate need governmental representation? Does a modern Senate need an official opposition or any opposition groups? What changes do you feel are required to our rules or practices? 3-2 Today, I am pleased to welcome our next witness, who is no stranger to any of you, the Honourable Senator Elaine McCoy, Facilitator of the Independent Senators Group. 3-3 Senator McCoy, please begin your presentation and I'm certain other senators will have questions. 3-4 Hon. Elaine McCoy, Facilitator, Independent Senators Group, Senate of Canada: Thank you very much for your invitation. I just want to say, following in the footsteps of Senator Peter Harder and Senator Claude Carignan, who both made the point that they were here expressing their own personal opinions and not those of their group or of their caucus, I too am here expressing my own personal opinions and not those of the independent senators group. With that on the record, let me answer your questions. 4 The first question is: Do you believe that political party caucuses have a role and a future with the Senate? The answer is, unequivocally, yes. I have always said that. I am, myself, a graduate, if I can put it that way, of a political caucus in the province of Alberta. I flourished in that family and I very much recognize the benefits that a caucus can realize. 4-1 But it would be well to bear in mind that as far as the electorate is concerned, the primacy of our parties' political philosophies is making way for issues as addressed by their election platforms. Parties recognize this and are seeking to widen their "tents" to accomodate a broader range of voters interests. Let's have a look at our parties' websites: n4-1
• Conservative. Platforms planks; propaganda; political attacks; fundraising; no party philosophy! • Liberal Platforms planks; propaganda; fundraising; no party philosophy! • NDP Propaganda; political attacks; fundraising; no party philosophy! • Green "Green" issues = party philosophy; include political attacks; fundraising. As for political philosophies, one may turn to Wikipedia where one finds, for example, a history of shifting Conservative philosophical sands: here. n4-1A It seems that the party system is on the way out but for us not knowing what will take its place. But now (November 30, 2016), with Kevin O'Leary seeking to follow in the footsteps of Donald Trump, we can wager a guess: a moving toward` a new type of dictatorship; personality-centred Putin-style, not the (still) monopolist-party-centered Chinese variety. n4-1B What it all boils down to for our Senate, party caucuses are on the way out, but caucuses based on political philosophies may have a life of their own until some form of a global philosophy evolves spurred on by shared global information. One can only hope that such inormation will rest more on verifiable facts, reasoning, and a global ethic than on twittered nonsense. I believe that Senate modernization has to be cognizant of this and meet the obvious challenge we face. But I fear that this body is wasting formidable erudition on a stage decaying. n4-1C As for Russia, here is an interesting—and, I am inclined to think, a truly relevant—paragraph taken from the website of dissident Mikhail Kodorkovsky, Open Russian "What is needed now for effective resistance is not a party with yet another 'vertical' structure, eager to fight for power, but a 'horizontal' alliance of the vast number of 'small civic groups' that form the underlying fabric of civil society and that solve their own concrete problems locally." n4-1D I think that the fact of having a political caucus in the Senate is not the problem. I have said it before and I'll say it again. I think the problem has been an abuse of power, not political caucuses. I think the problem has been the structure that we have allowed to flourish, which is having a duopoly or an oligarchy, if you like, and what we need are at least three groups in the Senate, if not more, to encourage negotiations and conversations and not the tyranny of a majority. 4-2 Having said that, I really want to emphasize that those of you who sit in political caucuses have every right to do so, and I hope you continue and I hope you do gain members in the future. I hope that there is never again any single group that holds the absolute majority in this Senate. That's the answer to number one. 4-3 Number two: Does a modern Senate need governmental representation? -4 I think it helps and I think we're seeing the virtue of it with the government representative team in the Senate, or G3, as I've dubbed it. But I will say I think that the numbers probably don't need to be large. I will say also that I've had conversations with some experts, I think I would say, in terms of legislative structures, who point out that it isn't absolutely necessary. We could introduce legislation sponsored by a minister in the Senate from the House of Commons. It would be government legislation and we could organize ourselves sufficiently to deal with that legislation. 4-5 From my point of view and my observation, I think it helps to have a government representative to be a focus of that kind of organizing to ensure that government legislation is introduced properly, that it does progress through our various stages and that there is some kind of spokesperson between the House of Commons and ourselves, and more particularly between the executive branch, which is the cabinet, and ourselves. 4-6 Question number 3: Does a modern Senate need an official opposition or any opposition groups at all? 4-7 That question, I think, is the wrong one to ask ourselves. Do we need organized groups? Yes, absolutely. That's the right question. Do we need a way to structure debates in a disciplined way to review legislation? Absolutely, yes. Those are the right questions. In fact, as in all of your readings, you will have read the constitutional duty to give advice and assistance on all weighty and arduous matters of concern to Canada. We heard it said six times again yesterday, and we're going to hear it, I think, another eight times today. 4-8 Those are the words by which the Queen, through her Governor General, summons each and every one of us to take up our place as senators. We are asked to come to give advice and assistance on all weighty and arduous matters of concern to Canada. And what could be more weighty or arduous than legislation? So, it is absolutely a constitutional duty that each and every one of us has, and that is to give advice and assistance in passage of bills. 4-9 It is also our responsibility—I think the Senate's record over 150 years indicates we've certainly lived it—to not hold up the government of the country. We haven't had a deadlock situation here like we've seen in the United States, or even in Australia. 4-10 The question of how we undertake that constitutional duty to give advice and assistance on legislation is, I think, very much a pertinent one. At that point, so are these two: Do we need organized groups? Yes. Do we need a way to structure debates in a disciplined way to review legislation? Absolutely, yes. 4-11 Do we need an official opposition? No. But I'll come back to that point in more depth later. 4-12 The last question is: What changes do I feel are required in our rules and practices? 4-13 I will say that the independent senators group, or ISG, spent all summer looking at just that question. We met on September 20 and 21, and this is our document identifying the multitude of rules and procedures and administrative rules that we feel need to be reviewed and looked at. 4-14 The most important ones from an operational point of view, however, are already covered by this committee. They are in Recommendations 7 and 8 and they are now on the floor of the Senate: that is, the rule changes that allow independent senators to substitute for one another and be full members on a committee so that they can fully take up their responsibility and their fair share of the burden of undertaking the constitutional duty to scrutinize legislation. 4-15 The term "fair share" has been bandied about a number of times. I'd say "proper share." Fair share is something owed to the recipient; proper share is an obligation of the recipient. n4-15
Do I think that the full discussion on the rest of the matters of how we move forward in our transition is finished yet? No. Do I think we owe it to ourselves to have further discussions? Yes. Do I think that we should include all the new senators that are joining us? Absolutely. 4-16 I think that over the next six months for sure, and possibly even 12 months, we're going to have these ongoing conversations that are going to evolve, yet again, a unique institution in Canada that will probably be a shining beacon for all Canadians. My optimism is such that I think we're all going to work together very well in coming to what is going to be an efficient and effective way of undertaking our constitutional duties. 4-17 One can only hope that all of this will not be too late given the torrent of unfolding global events. n4-17
I said I'd come back to the question of official opposition because the argument comes up often in the context of the Westminster model. The Westminster model is almost an icon, as so many people are using it. It's almost—what's the word I'm looking for? It's a symbol, and we often use it as a symbol and perhaps not looking at the evidence that there is, around the world, as to just what the Westminster model comprises. The fact of the matter is that right from the get-go, Canada was different. I think we might have been the very first spin-off. 4-18 Weren't we the first spinoff in the U.K. Parliament? I think so. But right away we were completely different from the House of Lords and, indeed, almost the House of Commons, but we had more in common with the House of Commons and our House of Commons than we did with the House of Lords. 4-19 In 1885, A.V. Dicey, the leading British scholar of the day, wrote an entire book on constitutional matters and the British North America Act and how we were getting on in Canada. When he looked at our preamble of the Constitution Act, 1867, then known as the BNA Act, where it says it is "similar in Principle to the United Kingdom," A. V. Dicey said that that phrase is an "assertion of official mendacity." He said that if preambles were intended to express the truth, then the word "states" ought to have been substituted for "kingdom." It would be said that we were modelled after the United States, not the United Kingdom, since the Constitution of Canada, in its federal design, its written form and its potential for judicial enforcement was clearly modelled on the Constitution of the United States. 4-20 So right from the get-go, we were different. 4-21 He wasn't completely right because in lots of ways we are similar, but we're not identical. There were a lot of people who piled on top of Dicey, particularly Canadian scholars. They thought that he had overshot the mark in his condemnation of our preamble. So in his second edition of the book, he toned it down from "official mendacity" to "diplomatic inaccuracy." 4-22 The point is, though, that Canada's upper chamber has always been unique, and it still is unique. 4-23 If you start to look around the world at other examples of Westminster models, what you discover is—and I've said it before—that one of the few articles by academics is by a fellow called Andrew Harding, who published in the Oxford University Commonwealth Law Journal. He said that there was a domestic model and an export model, and every model that they exported to every different country had something different about it. Most of those differences were actually in the upper chamber. 4-24 There were two or three things—and Thomas Hall has identified a few of them—that are constant. One of them is a head of state and a head of government. The head of state is always the sovereign, and there's always a responsible government set-up. That's always in the lower house. So the head of government is always a prime minister who is reliant on the majority of elected members in the lower house, which is to say the responsible government, sometimes known as cabinet government. 4-25 Sometimes you'll see that there are bicameral Westminster models and sometimes you'll see unicameral. The model doesn't even insist that there is an upper chamber. What's clear is that there are more differences or variations than there are similarities. I think gives us the ability to look at ourselves functionally and, again, to ask ourselves: How do we want to organize ourselves so that we can have very good debates? How can we make sure that our research is excellent? And how can we scrutinize government legislation and private members' bills in a way that is excellent? Those are the questions I would be interested in pursuing with everyone else at this table and in the chamber. 4-26 Thomas Hall looked at three different examples: Australia, New Zealand and Tasmania. Australia, as you know, has an upper chamber that's elected, but the last time I actually looked at it, it was deadlocked between the two major parties. The balance of power was held by independents or at least very small parties who would gang up on the big ones, but it didn't look to me to be a great model. I like the way we do things ourselves better than that. 4-27 New Zealand, of course, eliminated its upper chamber years ago, so it doesn't even have an upper chamber. 4-28 Tasmania is not a country; it's a state and a small one at that. If I recall correctly, it has appointed senators, and it has a majority of independent members. It has some who are also members of political parties. 4-29 So there are three examples, all in the same hemisphere, if you wish, and all quite different. 4-30 We have homegrown examples of differences at the state level—the Northwest Territories and Nunavut. I was talking to Nick Sibbeston the other day. Of course, he used to be the Premier of the Northwest Territories, and they have no political parties. He says it works very well. 4-31 I talked to Dan Lang, who comes from the Yukon, which used to be that way, and they moved into having political caucuses. It didn't work well there for them. What they say is that it's just the nature of the culture of the provinces or territories, what works well and best for them, and that's what they've chosen. I think the brilliance of our system is that we can choose to operate, organize our way, in a way that suits us and makes for the most efficient and effective outcomes. 4-32 It is to be hoped that this forward-looking opinion will be allowed to unblock the way to progress. It beats the rearview mirror on developments that have occurred under circumstances so diferent from our current ones. n4-32
We took a long look at upper chambers around the world, helped in part by research from Senator Bellemare, but we looked particularly at parliamentary democracies because of the Westminster model. Time and again it was the variations that struck us, not the similarities but the variations in the upper chambers. 4-33 Some people are arguing that if there are votes for or against a government bill, that means there must be an official opposition. I don't think that's the conclusion you draw from the fact that there are votes for and against a government bill. The fact of the matter is we're legislators. We are here to pass, amend or defeat legislation. Section 36 of the Constitution Act, 1867, says that the Senate shall speak by a majority of voices. I always grin because it's a Victorian charter. I always say it capitalizes the word "Voices." It's a majority of votes that decides, and our votes are always yea or nay. That doesn't mean that we have an official opposition. It doesn't even mean that we have an opposition. What it means is that on that particular piece of legislation, we are saying we don't agree with it. 4-34 The last thing I would like to do on that subject is look at Canada's history. Quite a few claims have been made. I don't claim to be an historian and have the last word, but I have been looking at this sort of thing, just out of curiosity, ever since I got here and discovered how little I did know, and I keep learning as I go. 4-35 One of the things I did look at, not many months ago, was the 1867 appointees, the first 72 senators. They're on the parliamentary website, as you probably know. I have the link here if you are interested. But the first 72 were not prime ministerial appointments; they were made by Royal Proclamation. 4-36 Then I got curious: How did that happen? I looked up the debates in the House of Lords when they were debating the BNA Act in 1867, in February. February 19, Lord Carnarvon, who was the sponsor of the bill, and he was the colonial secretary at the time. He was the father of Lord Carnarvon, who discovered King Tut's tomb. It is very interesting. His nickname was Tweety. Very modern. His family seat is where "Downton Abbey" was filmed. 4-37 He said: 4-38 "Your lordships will observe that by the twenty-fifth clause, security is given that the first list of senators shall not be nominated under partisan influences. Their names will be a matter of careful agreement to be submitted to and confirmed by the Crown and to form part of the proclamation of union." 4-39 Very noble-sounding words, but they're quite disingenuous. I started looking at the names and looking up where they came from. There were 24 from Ontario. Oh, my goodness, look at that. The upper chamber in the province of Upper Canada at the time, that's who the first 24 Ontario senators were. 4-40 Guess where the first 24 senators from Quebec came from? The upper chamber of Lower Canada. 4-41 The 24 Atlantic senators mostly came from the upper chamber in the two provinces down there. Not everybody agreed to come, so then they reached into their lower chamber to fill it up. So these were nominated under partisan influences; they were all partisan. They were elected and they were partisan. 4-42 But I do see how this might have misled some people to say that our founding fathers were non-...; anyway, it made for a good story at the time. 4-43 An English word in response to Lord Carnarvon's assertion would be "codswallop," and that's pretty much what we have in response. 4-44 Before we get too excited about the notion that political caucuses are the norm and therefore some kind of hegemony is justified for an official opposition, our history really doesn't support that view. 4-45 Somebody told me there are only four books written about the Senate of Canada. This is one of them. It's written by F. A. Kunz, and it's The Modern Senate of Canada, 1925-1963, an appraisal. The book was printed in 1965, so it's 50 years later. We are due for another modern Senate reappraisal. 4-46 He talked about how it was organized. He talked about the fact that, of course, there was a government leader and an opposition leader. Then he talked about the fact the nature of their work. I'm quoting from page 90, and he's talking about the political caucuses. He's quoting Arthur Meighen, by the way: 4-47 "The nature of their work is purely organizational; to see to the attendance of party members, to maintain the quorum, to send out party notices (or "whips") about forthcoming business, meetings, etc., and perhaps to ensure a reasonable turnout of members of their party when important divisions [votes] take place, but they can in no way bring party pressure to bear upon their vote; their only weapon is persuasion." 4-48 This is a quote from 1941 about how the political caucuses were operating at that time. 4-49 Senator Hardy, who had been there forever, looked back over 20 years of attendance in the chamber and said he had attended only one caucus, and that was the only one held between 1922 and 1942. He might have been a Liberal. 4-50 Speaking for the Conservative Party in the Senate, Senator Calder said: 4-51 "... although they had held caucuses more often than the Liberals, the purpose of such meetings was merely "to analyze some of the measures that come before us and to ascertain what our various viewpoints are. It is not for the purpose of having a united party stand one way or the other." 4-52 So despite the relatively small number of senators who regularly avail themselves of the opportunity, it seems that the general value attached to attending joint caucuses only started to increase in later years. 4-53 Senator Cools: Transportation had a lot to do with that. 5 Senator McCoy: The author, Mr. Kunz, begins to talk about a senator whose name is Dandurand. He came to the chamber in 1922 and died in the chamber 20 years later. He became the Leader of the Government. He became what everyone regarded was the—if you wanted to know—how to be a good senator, this is how you did it. He was that well regarded. 6 Let me quote again: 6-1 "... he completely dominated the House, and his personality, his views, and the manner of his leadership have become identified with the best features of the Senate. In his image of the Upper House as a body of independent-minded elder statesmen coolly exercising judicial impartiality there was no room for any formal party machinery, which would only accentuate a spirit that ought to be extirpated by all means. In a letter to Sen. Lambert shortly before his death, he confessed that in order to bring the Senate to his point of view he thought "that an ideal Canadian Upper House should have no official Government Leader and that each minister at the head of a department should confide his bills when they reach the Senate to a member of his choice, to pilot them through. The Senators would no more sit in two separate groups, one to the right and the other to the left of the Speaker, so as not to be divided on party lines." 6-2 So some of the things we're debating now are not even original to us. 6-3 I'm reading again: 6-4 "In his crusade against all semblance of partisanship in the Senate he cut short any reference to such traditional terms as Government Leader, Opposition leader, back-bencher, etc. He greeted newcomers in the Senate not as party-men but as "co-workers" and only recognized the existence of two trends of thought, "a Conservative trend and a Liberal trend, which must necessarily appear in our discussions, but here there is not, as there is in the House of Commons, what is referred to as His Majesty's loyal opposition." 6-5 I'm sharing that with you because it's an historical precedent. We have historical precedents for doing things a little differently than how we've done them in the immediate past. So what I'm hoping this will do is not only amuse you and tweak your curiosity but open our minds. 6-6 I'm not saying this is the only way to do it either. What I'm suggesting is the weight of evidence, the scholarly evidence, historical evidence, and when you start looking at existing upper chambers in parliamentary democracies around the world, there are so many variations. What I think we have is an excellent opportunity to choose whichever way we think is best for us. 6-7 Which takes the shackles off my suggestion to expand the Senate's investigative role to an investigative, anticipating, and critical problem-solving role—a role that would make our Senate a guardian for our citizens in a rapidly changing global environment. That role calls for some changes in our Senate's composition and the way in which senators cooperate as outlined in my essay's Part III: A Senate adapting to the times. n6-7
Are we doing things the very best way we could in 2016 in Canada? I honestly don't think we are. I think we could do things better, and that begins to emerge when we look about how we structure debates and review legislation. 6-8 My essay is silent on our Senate's role of reviewing legislation—I feel utterly unqualified to enter that arena—but the matter of discussions among those cooperating is an essential topic that, I should think, applies to the applying of second sober thought as well. n6-8
I don't think there's any chance in the world that we'll become just a debating club because debating clubs don't make decisions in real time. We make decisions in real time on legislation. We pass; we amend; we defeat. That is not a debating club. And that's our responsibility and we'll continue to do it. I don't see that as a danger, other than as a rhetorical danger. 6-9 However, the essence of our role is open debate, and that's one place where I think we could encourage ourselves to have more debate on the floor, not just in our caucuses. Caucuses are very rich generators of ideas and very good places to test ideas, but I do think we should, in this day and age, have more debates on the floor of the chamber, and I'm hoping that will happen. 6-10 We do have a pretty good system right now. It's actually working nicely. The scroll meetings have included all four of our groups: Conservatives, Liberals, the ISG, and the government. That's working very well. 6-11 I think we're holding fairly well to the Bourinot principles. The five principles come from London, England, of course: 6-12 Bourinot's Rules of Order is a Canadian parliamentary authority originally published in 1894 by (the younger) Sir John George Bourinot, Clerk of the Canadian House of Commons under the title "A Canadian Manual on the Procedure at Meetings of Shareholders and Directors of Companies, Conventions, Societies, and Public Assemblies generally." For details, see my source. n6-12
To protect the minority and restrain the improvidence and tyranny of the majority, to secure the transaction of public business in a decent and orderly manner— 6-13 —and I really do think that's important— 6-14 to enable every member to express his opinions within those limits necessary to preserve decorum and prevent an unnecessary waste of time— 6-15 —very good— 6-16 to give full opportunity for the consideration of every measure, and to prevent any legislative action being taken heedlessly and upon sudden impulse. 6-17 These are principles, I think, we do honour in our practices, by-and-large. 6-18 But we have been relying on two political caucuses to organize our debates. One comes up with a sponsor and the other comes up with a so-called critic. That's not the only way we could do it. 6-19 I started asking around and actually our clerk and parliamentary researcher mentioned to me that France, in the European Parliament, organize themselves altogether differently, even though they have political parties and independents. I'm not going to speak to their system with the degree of facility that you might like because I ran out of time, so I didn't go into it very deeply. I did have some help in researching it and bringing it to my attention. 6-20 The benefit of clock and calendar is that it restrains excessive loquatiousness and organizes time, but an unfortunate side-effect is that it puts a limit on refining worthwhile thought. Digital technology may well help to improve the way senators and their staffs work. n6-20
What happens is that as soon as a bill hits the floor of their chamber, it's assigned to somebody who is called a "rapporteur." That person is given quite a few resources and goes off and scrutinizes that piece of legislation to within an inch of its life, from all different perspectives, compiles a report and brings it back to the legislators for debate, with a full consideration of the pros and cons. That's another way of getting to the decision of whether to vote for or against this piece of legislation, or amend it. It goes through several levels of committees, et cetera, before it actually gets back for a final vote, but it's another way of organizing and structuring a debate. I'm mentioning it here to perhaps intrigue you and maybe begin to generate some curiosity of other ways we might organize debates. 6-21 It is heartening to observe that we have in Senator McCoy someone who does not shy away from "thinking outside the box." n6-21
Another idea that was brought to my attention is the concept of an amicus curiae. Lawyers are familiar with that term, of course, and I think everyone knows it is Latin and means friend of the court. If you're interested, we should ask Murry Sinclair to expand on the idea. When a judge has before him either an interest that is unrepresented in the court, or there are several interests and they all seem to be saying the same thing but not necessarily saying everything that is to be said, the judge can appoint a friend of the court so that all points of view are brought forward. There is, therefore, a balanced record, not only of the facts, but the law and opinions are in front of the judge so that the judge can then make an evidence-based judgment. There's something in that idea that offers possibilities as well. 6-22 One of the best examples—and we did it ourselves, almost out of whole cloth—is Bill C-14. We got excellent reviews for it. I went to the meeting—I think it was a Wednesday night—in room 356-S in Centre Block, and there must have been 30 senators there. I didn't have any amendments to put forward; I wasn't planning to speak. I just thought it was a historic moment and so I wanted to be there. There we had Liberals, Conservatives, independents, the Clerk, the Law Clerk and sundry other legislative experts on our own staff. We were talking about how we were going to structure a debate. 6-23 We did put together a very well-structured debate, and we did put together some very well thought through amendments. We even cascaded them: If you pass this amendment, the others were covered already by it, but if you didn't then you kept going. Our debates were consecutive to a large degree, which made it much easier to remember and put counter-thoughts on the table with your colleagues, which I think enriched all of our understandings. 6-24 I think that was quintessential. I think we should try and create more Bill C-14 moments on appropriate legislation in the Canadian Senate. 6-25 One of the other things that I observed through that process is that we also observed the ancient, or fairly long-standing, at least, parliamentary conventions. We did not insist on having our own way. We did say to the House of Commons, "We don't think you did it quite right, and here are our suggestions. If you disagree, be it on your own head. You're the elected body." I thought we did it gracefully. 6-26 I think that was also very good parliamentary practice. It actually followed the traditions that have been developed here and elsewhere. 6-27 The essence is that we do have to scrutinize all legislation in-depth and more so than ever before. There aren't just two views. I would disagree with Dandurand on that point of view. It's no longer just a Conservative or a Liberal. You can see that in our society. We are a pluralistic society. You can see that in the way, on the elected side, the political parties have fractured. You can see it in the number of people who are not belonging to political parties. You can see it in the Occupy Wall Street movement. You can see it in the great Twitterverse. Talk about dis-intermediation. There are just more points of view. 6-28 A pluralistic society with political parties that have fractured— how well these words align with my "inked-in" comments on paragraph 4-1. n6-28
Also, questions are becoming far more complex. With a pluralistic society and complex issues, I am suggesting that more research than ever before is going to be necessary for the Canadian Senate to be at the top of its game. 6-29 People say, "Well, it's working fine. We've got an opposition; therefore, we have critics and we're not just a debating club." I heard that on October 18, I think. We went to the chamber straight from here, and guess what? A critic got up on a government bill and immediately said, "I have nothing to say about this bill; I agree with every piece of it," and practically sat down again. I've counted five examples of that since October 19. The critic gets up and says, "I'm totally in agreement with this bill, totally support this bill," and there's nothing wrong with that. I'm not suggesting that there is, but that's not opposition. I take it on faith that that individual has scrutinized that legislation very carefully. I'm not sharing the names here, not to point fingers or single people out for praise because so many of you do deserve praise over and over again. 6-30 Senator Tkachuk: Was it government bills or private members' bills? 7 Senator McCoy: This one was a government bill. 8 Senator Tkachuk: All five? 9 Senator McCoy: No. 10 Senator Tkachuk: So how many were government? 11 Senator McCoy: Let me just check. Yes, two. 12 What I'm pointing out is that we do learn, over the course of our time here in the Senate, to come to have a well-founded and profound respect for one another's expertise. Actually, it's a joy to watch it grow over the years, too. We tend to want to hear what that individual says on a certain subject, and that's right and proper as well. In some of these cases, we were hearing from that calibre of a person. So that is why I trust that the scrutiny on that piece of legislation was well done. 12-1 That's a good example. But it's not necessary to call it opposition. It's good to call it scrutinizing. I think the fact is that in one of those cases—I'm sure I'm not the only one—the trade associations had been calling up and saying "By the way, I think you guys have forgotten something." We do need to tweak the legislation a little bit, so it's not an infallible system. 12-2 But we do need all groups. We do need all views. We do need all senators. We need as much support as we can possibly afford to give all of our senators, from staff and Senate administration, and I think it's needed because we want to give in-depth scrutiny. We want to develop long-time practitioners to become experts and champions in their field. We want critical thinkers who are so good at it that they recognize nuances and can explain the complexities in ways that others can understand. We want to find a way that we can apply the amazing brain power we have in this chamber, not to mention, of course, the breadth of compassion that we have here, as well as the breadth of business experience we have. 12-3 What, exactly, is meant by "to develop long-time practitioners to become experts and champions in their field"? Are they senators or are they "extras"? I had hoped that a substantial number of senate seats be filled with experts in their field, notably scientists, but other experts as well. But things having gone the way they went, I now lean toward adjunct senators or senators protemp or senators-in-waiting to sit as ones akin to "crossbenchers." See also Sections 26ff of the Constitution. n12-3
I like to exemplify my notion of their expertise by comparing them with old-fashioned family doctors or medical GPs. They are immediately available as senators, participating in all senators do. In addition to may refer cases that call for finer-grained expertise (cf. cardiologists, urologists, what-have-you) as needed. And even within those specialties there are sub-specialties. Having a heart problem, my family doctor contacted the Ottawa Heart Institute where I was seen by a cardiologist, who subsequently is making arrangements for me to be further seen by a collegue for advice how better to proceed with an operation. This kind of sequence of consultations, it seems to me, is about impossible to duplicate by having senators directly contacting those experts to then write a report with recommendations for a committee or the Chamber at large who then debate details via tge senatorial interlocutor. Clearly, the amazing brain power of the Senate needs further augmentation to make the Senate better embrace "all walks of life." n12-3A Furthermore, the kind of complex issues as exemplified in Part II of my essay, need more than one expert-GP-senator—maybe half a dozen—who have difficulty recognizing nuances and can explain the complexities in ways that others can understand. This is where cooperative authoring enters the picture. The assembling of the needed exertise on a committee calls for someone capable of doing just that. It is here that I am thinking of attracting an experienced senator from the ranks of, say, directors of research teams. To give an everyday example: If you want your bathroom to be remodelled, you call an a contractor who, in turn, forms a team of a plumber, a carpenter, an electrician, a tile-layer, a painter to do the job with all the while you deciding on the bathroom equipment to be installed and how the walls are to be finished. (See my essay.) n12-3B My Brief has a section named Democracy in peril. This a complex case that calls for, as indicated, highly integrated cooperation. Not mentioned there is a presumably highly useful roll for those senators I referred to as "citizens' representatives." I understand that our Senate is not keen on meddling in the affairs of the other side, but wouldn't it be a fine opportunity for the other side to avail themselves of our Senate's services while keeping their own hands clean? n12-3C In The Globe & Mail today (Dec. 1): "Election reform committee calls for referendum on voting system." But what we first need is dealing with shortcomings in our electorate and those elected (see above reference to "Democracy in peril"). As for the election mechanism, that comes after. Can't our government tell the horse from the cart? n12-3D Having said all of that, to my mind, does that diminish any groups we have here in the Senate? Not at all. I don't think that's the issue in talking about structuring the debates and putting our collective talents together. What I see is that, apart from G3—the government side—and the Speaker, that would make 101 senators all dedicated to giving exquisite scrutiny to legislation as it comes through, both from the government and from private members. That's what I'm looking forward to doing with all of you. 12-4 With that, I will conclude my remarks. 12-5 Now, here we enjoyed an adroit and hard-hitting presentation from a soft-spoken senator wielding a big stick! n12-5
Senator Joyal: Thank you, Senator McCoy, for your presentation. I will go directly to the question I wanted to submit to you. 13 I think you were around the table when we heard Lord Hope, who is the facilitator of the cross-benchers in the House of Lords in Britain. What is the difference between the cross-bencher model, as we see it operating in the House of Lords with the other parties, and the model that you advocate or propose that we adopt so that it would not be the cross-bencher model of the House of Lords in Britain? 13-1 Senator McCoy: I think a significant difference between us and the House of Lords is that they are not expected to go. They have 400 seats in their chamber and over 800 lords or peers, as they are called. I was there once. Senator Nolin was kind enough to ask me to go with him on a fact-finding trip just before he died. One of their administration staff at the House of Lords said to me that they live in fear of them all showing up at any one time. I think they call the ones that don't come "back woodsmen." 14 It's a whole different mentality. That is not equivalent to our 105. We'll never be any more than that. We only have 105 people. We must take on responsibility. We must take the burden; every single senator must share the burden of our constitutional responsibility. I think that makes a big difference. 14-1 Senator Joyal: Is that, in your opinion, the only difference? As you know, the day-to-day operation of the House of Lords is organized by the full parties that are present in the House of Lords through their various groups and caucuses. There is an official opposition. There are other parties that are part of the organization of the work as much as the facilitator is part of the organization of the work. But the members of the cross-benchers, as I heard Lord Hope explain, are members of the House of Lords but do not carry the same kind of obligation to do the daily work of the lords as the other party members. That was quite clear when we heard the comments that were made in terms of participation to vote. Their numbers were rather low; I think it was 8 or 10 per cent. The participation in committees is very episodic; in other words, they come when the subject appeals to them or appeals to one of them because that person feels she has the experience, expertise, to participate in the debate. 15 The way I understood it, they don't carry the daily responsibility that the parties carry of participating in the debate because, as you know very well, the work is structured on the basis of party organization and party responsibility. 15-1 Those adjunct senators (or senators protemp or senators-in-waiting) mentioned in paragraph n12-3 should be employed full-time, participating as independent senators in all Senate activities, etc.) Their specialization may well be handy in assessing some bills, e.g. the one on assisted end-of-life. n15-1
My question to you in relation to the cross-benchers is this: What is the distinction of essential elements that would make your model as efficient in terms of the scrutiny of legislation as it is now with the party structure that there is in the House of Lords and that we have in the Senate? 15-2 Senator McCoy: I think I answered the question on what the difference is. I will say again that I have been summoned to the Senate. I sign the ethics declaration every year stating that I've read our code of ethics and conflict of interest code. Section 2(1) says that I must put my service in the Senate first and foremost, beyond all things. You, I think, were in large part the author of that, and we added it in 2014. 16 That is a burden of responsibility that I accept and all senators do. I think, with a limited capacity in the chamber of 105, with the exception of the GST 8, that makes all the difference in the world. It doesn't enter my mind that I can only come when I'm interested. 16-1 Senator Joyal: But who is going to be responsible to ensure that the attendance at committees will be continuous, if you are an independent member? 17 Senator McCoy: The same as in your caucus, senator. You have no whip, you say, so who is making sure that you are there? I sat there one day when a representative of the government was scurrying around looking for a quorum just so that we could get Royal Assent toward the end of June. I don't remember seeing a Liberal in the house that day. You know who was there were the Conservatives and the independents. 18 All I'm suggesting to you is the way you describe your caucus, I might put the same question back to you: Without a whip, how do you organize and make sure that people take their responsibility seriously? 18-1 Senator Joyal: Well, very easily, because each week we receive a sheet. We have to mark if we will be in attendance Tuesday/Thursday, if we will be there for the meetings of the committees that we are a member of. At the organization level there is somebody who coordinates our attendance on a continuous basis to ensure that there is the membership, and not only the membership, but the people who are interested in taking part in a debate, who comes to the meeting, having read the legislation, having prepared for the questioning of experts and being there all the time, if possible, during the testimony and the study of legislation. 19 When you are one single member, you don't have to report to a group, except to share the information that the Government Representative can give you in a briefing session. It's not at all the same as assuming the daily responsibilities. 19-1 That's why I'm trying to understand, the moment that there are no longer political caucuses, who is going to be responsible to make sure that the attendance will be faithful, that the members will be prepared—not only one person who happens to be the expert on the subject, but all the other ones on the committee, to ensure that they are prepared and they assume the work that we are expected to do? 19-2 As you know, we open in public; so the public can be there to see how many seats around the table are empty or how many times a committee member around the table could say, "My question has been asked by the previous speaker." It's easy. You go back to your office, and it's done. 19-3 The Senate has to organize its work. I'm not contesting you. I'm saying, how will we make sure that the Senate work is organized, at least the way it functions presently, to maintain a minimum of input in debate? That's my essential question. 19-4 Senator McCoy: I have said throughout my presentation that I believe we need organized groups. The logical fallacy in the presentation you've just given again, as you have given consistently since we started this committee, is that only political caucuses can provide that level of organization. I think that is not right. I believe that a group of independent senators can organize for logistical reasons, just as you described. 20 We have two meetings a week. What more can I say? We do get together and talk about who is doing what and where everybody is. We're walking the talk. We're sending substitutes to committees. 20-1 If you would like an invitation to one of our meetings, I'd be pleased to invite you to join us. I want to reassure you that your model and the example that you have given as a hardworking champion of two or three issues, one of our best senators over the years and for years to come, Senator Joyal, we are taking you in large part as a role model. 20-2 Senator Joyal: Thank you. 21 As I say, I have absolutely no quarrel with the fact that each and every senator has to play an essential role in the operation of the Senate, each of the 105. My preoccupation is to make sure that our involvement in the work of the institution is framed within an organization setting— 21-1 Senator McCoy: Agreed. 22 Senator Joyal:—whereby each one will not only—because he or she signed the pledge that he will be in attendance, as you say, the way the principle is stated in the Conflict of Interest Code for Senators, but human nature— 23 Senator McCoy: I agree 100 per cent. 24 Senator Joyal: You understand what I mean. 25 Senator McCoy: You are preaching to the converted. 26 Senator Joyal: How will your group be structured to propose as much efficiency— 27 Senator McCoy: Why don't you and I get together afterward and compare notes? I dare say that we might be able to give you a couple of pointers, because we're not doing it on a hierarchical model; we're doing it on a 21st century leadership model. We're bringing some new ideas to the table, even in the way we operate, but one of them is very sure, and that is to ensure that each and every one of us lives up to our constitutional responsibilities. 28 Senator Joyal: I am expecting a public discussion more than a private one. 29 Senator McCoy: If I may suggest this: It's a very interesting discussion, but it isn't on these four points that were put to us. It's a very valid discussion. I would love to have the opportunity to have one or more of the members of the ISG and one or more members of the independent Liberal caucus and one or more members of the Conservative caucus on a panel presenting how they organize themselves and how they run their business, and maybe we'll all learn from one another. 30 The Chair: We're a vacuum for ideas, and we may do that. 31 Senator Wells: Thank you, Senator McCoy and Senator Joyal for your question, because it encompasses part of mine. 32 This is a question regarding opposition, and you can understand that I have a particular interest in that because for now that's where I sit. 32-1 Senator McCoy: For now? 33 Senator Wells: I'm still a young man. 34 Senator McCoy: Are you thinking of joining us, Senator Wells? 35 Senator Wells: No. I'm expecting the Conservatives will be government one day. 36 Senator McCoy: My hopes are dashed again. 37 The Chair: Order. 38 Senator Wells: But you never know. 39 My question was on structure, and particularly opposition, because we know your opposition to an "opposition," and I understand that. We know that the Government Representative, or the government leader, has access to structure in an organization that proposes legislation and lobbies senators for that legislation. We know there are private briefings from the Government Representative and we know that organization exists. 39-1 We also know that there's a strong desire from the government leader—the Government Representative in the Senate—to have scattered organization elsewhere because it helps the agenda of the government's bills get through. 39-2 In the absence of an opposition, you would have 102 possibly organized into groups, whether they be geographical or otherwise independent-minded, as your group may be. Do you expect this to be an organic organization to oppose or challenge legislation? Why don't you think the current structure of an organized opposition to give consideration in a contrary way to legislation—we know that there are promoters of the legislation. My question is: In the absence of an opposition, do you think scrutiny of legislation would be organically developed out of hope? And to follow up on what Senator Joyal said, right now, because there's an opposition and structured caucuses, that creates a plan for opposition. It creates a plan for the structure of the Senate. In the absence of that, there would be no plan. I would hope there would be opposition or I hope people of like mind would get together. 39-3 What would be your comment on that, please? 39-4 Senator McCoy: Already we see some of that. I stopped counting after five days. There were maybe seven sitting days of examples of an opposition member getting up and saying, "I have no opposition." Some part of that is natural and is already happening. 40 But I think you do us and Canadians a disservice if you think there are only two points of view. 40-1 What I would hope is that we increase the quality of our scrutiny of legislation. I think the research that we've going to have to undertake to look at government legislation now is actually going to increase. I don't know about you, but I wouldn't trust a technical briefing to present all points of view. I wouldn't trust a technical briefing from the proponent of a bill who is from the department. I would trust that they were giving you what they believed, but I wouldn't trust that that told me the whole story or gave me different points of view. 40-2 Many issues these days are so complex and our society is so pluralistic that I think in order to properly scrutinize legislation for all Canadians, we need to look at things in, I will say, a more critical way. You can call it opposition if you wish and I wouldn't stop you from doing that. I'm not interested in bandying words around. I think, ultimately, we're on the same wavelength where you and I think that legislation must be looked at with a critical eye to see whether it's any good at all and whether it needs improving. Is there something that has been overlooked? Is there a breach of goodness-knows-what Charter principle? Are minorities represented? Maybe it puts an entire overemphasis on one end of the value spectrum and not the other. The questions go on and on. 40-3 I think that the way we're headed, we are really doubling our capacity to critique government legislation. You'll be doing it, the independent Liberals will be doing it and the independent senators group will be doing it. If there are any independent senators sitting outside of a political caucus or a parliamentary group, they will be doing it, too. 40-4 Senator Wells: First of all, I wouldn't presuppose that I think there are only two ways to go to propose or oppose, because the third way is to amend, and obviously we all support the structure of making amendments. I think sometimes, especially on Bill C-14, that we all pat ourselves on the back a little bit too much. While it was a robust debate, and that was healthy, and while there was a lot of passion, and that was interesting, we still had independent senators and aligned senators giving reasons and then voting against those reasons, or not perhaps understanding what the role of a senator might be or of our role to assess legislation. We have one senator who said, "We've done our job and have sent a message to the government," and then voted for the bill. Our job is not to send a message. Our vote is to pass, defeat or amend. Another senator, and this really shocked me, said, "I see there are aspects of this that are clearly unconstitutional," and he voted for the bill. 41 Of course, we're talking about assisted dying. We're not talking about a tax bill. We're talking about something that literally is life and death. 41-1 Another senator said it would be too expensive to bring back the members of the House of Commons because we were at the end of session. "It would be too expensive to bring back the members of the House of Commons, so I'm going to support this," even though he may have not supported it on practice. 41-2 I think we should be wary of patting ourselves too much on the back on this. 41-3 Senator McCoy: Could I address that point? I think you're on a very important subject. It's called parliamentary convention, discounting the one about bringing back the House of Commons members, because that's not one of the parliamentary conventions. But it's been so long since we sent a bill back to the House of Commons with any regularity that I don't think very many of us around this table—I had to go and research it again. We actually pulled a paper together to recall all of the practices that prevail in terms of how often an upper chamber challenges the lower chamber in a parliamentary democracy. That's the subject you're on. 42 You may agree or disagree, but I know that a lot of on the first go-round sent it on its way amended but didn't insist on the second time. I know from talking to several senators that it was based on their appreciation of a parliamentary convention, which is to say you bring it to the attention of the House of Commons, but if they don't agree, it's not a policy preference in the Senate that should prevail. I think you'll find that statement very clearly in Andrew Heard, who is an academic. I think we actually invited him to be a witness here. He has the only book, I think, on parliamentary conventions. 42-1 Senator Cools: There are many instances. 43 Senator Joyal: There are very specific instances where the Senate has insisted on issues related to Charter rights. 44 Senator McCoy: Charter rights are part of the parliamentary—that's not a policy preference in relation to what Andrew Heard is talking about a policy preference. 45 Senator Joyal: The precedents are well known. 46 Senator Wells: Thank you very much. I have one final aspect I'd like to mention. 47 The independent senators group started with six, and I have the short list here. I know Senator Bellemare may not be a part of that now because she's part of another group. What's the composition and how do you count it? Do people float in based on whether they want to be aligned with ISG? Do they caucus with you on Wednesday mornings at 9:00? How does that work? 47-1 Senator McCoy: It's not one of the questions in front of us. I really don't think we should be taking this up. I think we should have a meeting of the panel— 48 Senator Wells: We're talking about the structure of the Senate and how we do our business. 49 Senator McCoy: —between the two political caucuses and the parliamentary group that is the independent senators group. I will say you would not find it uncomfortable to be a member of our group, senator. 50 Senator Wells: Thank you. I'd like to know how many might be there if you did caucus today, for instance. 51 Senator McCoy: We did. 52 Senator Wells: There are a lot of independent senators and I was wondering how many you have. 53 Senator McCoy: Senator Pratte, when was the last news release we issued? It has a list of the members behind it. 54 Senator Pratte: Fifteen. 55 Senator McCoy: We can re-send that to you, if you wish. We had 15 signed-up members at the time. 56 Senator Wells: So you sign up to be a member of your caucus group? 57 Senator Tkachuk: That's interesting. 58 Senator Wells: Thank you very much. 59 Senator Stewart Olsen: Purely for my own informational edification, not being a constitutional expert, the Constitution's opening line says the Parliament of Canada will be "... similar in Principle to that of the United Kingdom." So how can we possibly make these decisions and massive changes to the Westminster system without having something concrete? Stephen Harper tried to make changes in the Senate, and the court said no, it's not constitutional. What are we doing here? Is it constitutional or not? 60 Senator McCoy: You look like you have an answer. 61 Senator Tkachuk: I do, but you won't agree. 62 Senator McCoy: So much of what we're talking about is actually the working ways of the Senate. 63 Senator Joyal, it was your phrase that really, I thought, tipped the balance in this debate. You said at the last in camera meeting we had that what we really have to worry about is how we structure debates. I think that's the question to ask: How do we structure our debates? 63-1 Senator Stewart Olsen: No, I asked a specific question. Do you think we would survive a legal challenge before the courts? 65 Senator McCoy: Absolutely, of course. 66 Senator Stewart Olsen: Okay, that's good. 67 I'm trying to move this along. My second question is: Who, then, are independent senators responsible to? 67-1 Senator McCoy: Canadians. 68 Senator Stewart Olsen: Okay, but how? You have a large group. It's like when I was home in New Brunswick, people said to me, "Well, you go up there and you're a thinker. You review legislation under the prism of your own experiences, not under the prism of any structured group or any structure." So how are you then going to say to Canadians, who pay our salaries, "I represent you; I represent your ideas?" If each one of us sits in the Senate and says, "I don't think that's right because I grew up and my father said that wasn't right," I think you'd better be careful what you ask for because we have to be very clear on this. You're walking into a swamp that you're not dealing with. It's all very nice to talk about esoteric things, but you have to come down to the fact that our salaries are paid by Canadians. We have to be responsible to them in some fashion, and that's the question. If we're going to move to all of these different ways, how are we going to assure Canadians? How am I going to say to my people in southeastern New Brunswick, "I represent you?" 69 "I represent you" => "I work for you." As for representing ideas (philosophical, religious, habitual, whatever), that is impossible. n69
Senator McCoy: How do you say it? 70 Senator Stewart Olsen: I can still say it because I'm in a model where everyone knows I'm a Conservative, but I do go to— 71 Senator McCoy: So you represent the political party? 72 Senator Stewart Olsen: No, please don't interrupt. I go to my constituents on issues like the assisted dying. I went to my constituents. I went to my provincial leaders of the different parties. I tried to get some kind of input as to how I should vote on this because it was a bill of conscience, not a bill of party whips. But we have to decide this. 73 Senator McCoy: Let me give you an example in return. 74 Some people would call it groupthink, but others call it better, I think. You have a value base, and so it's fairly well labelled. I think it's not a very perfect labelling, coming out of the Progressive Conservative tradition myself. It's not a very precise label, and it does allow for a lot of individuality in its application. 74-1 Let me remind you of Senator Omidvar's speech at second reading. She was speaking to Bill C-6. She spoke about how many people she had reached out to who were affected by that bill and were living the consequences of that bill. She was reaching out to people in Toronto, which is her constituency, you may say, because she's lived there for quite some time. 74-2 Let me ask you, when you turn to Senator Eggleton who works for the homeless and works for income equality, how many times does he reach out to people he knows in that field to get their views, and how many times does he speak to Torontonians? 74-3 Senator Stewart Olsen: Your point is well taken. 75 Senator McCoy: You were talking to people you know in your community. I'm saying that we all do it. 76 Senator Stewart Olsen: No, I don't think we do, and that is the crux of coming down to what Canadians think of the Senate. 77 If we're going to go the way you suggest, then my suggestion is we had better start figuring out how we connect with Canadians if we're going to change. At least in the party system, elected members put the bills to us and then a bunch of thinkers sit around. So we've got to change that perception. 77-1 An answer to the question of how to connect with all Canadians is found in my essay under the rubric Citizens' representatives. I perceive these "representatives" as spending a great deal of their time in contact with society—horizontally (with individuals and groups) as well as vertically (through social strata, right down to the homeless). The citizens' representatives may caucus regionally as well as nationally and may, for the purpose of organized debates, be perceived as the spokespersons (call them "opposition" if you wish) for the people of Canada. n77-1
If you don't mind, I hear what you're saying. I know some people reach out, but you tend to reach out to the people that you have an affinity with, not an organized outreach to whom you have to—people who maybe don't agree with you or who are of a different party. So you can't just say, "I reach out to this group" without some kind of structure. 77-2 Senator McCoy: I'm going to respond very quickly to what Canadians want. What Canadians want they expressed to Nick Nanos in a survey in March of this year. Three out of four said they do not want their senators to sit in a political caucus. 78 Your point is well taken: How do we communicate with them? That's something we've been struggling with and we'll continue to struggle with. I think we're making some strides there. That's a valid point. 78-1 The Chair: We're going to try to wrap up because we have another meeting. A lot of people have to leave at 1:30, so we'll try to be a little tighter. 79 Senator Tkachuk: We all get appointed; we all get paid. We're here until age 75. No one can fire us, really. I've always said that if we didn't have political parties, we'd operate like a politburo. That's kind of what we're trying to organize here, when you scrape it all away. 80 The elephant in the room, the reason we're doing all of this, is because there were some political scandals out there. Let's be frank about that. That's why people in Canada are upset, not because we're not doing our job but because of what they see as us not doing our job. 80-1 With regard to the Westminster system and the models you talk about, the Westminster system is based on the idea of for the government and opposed to the government. That's what it's based on. All the rest is buildings and how you do things and all of that. That's just rules and organization, but really fundamental to it is that there is an opposition. 80-2 This, it seems to me, is an unsubstantiated assertion. n80-2
You don't want an opposition. Senator Harder doesn't want an opposition. He wants to run the Senate like a government department. There are a number of us that believe in the Westminster system. 80-3 My parents would be appalled at this discussion. They thought it was one of their greatest privileges, when they came here, to belong to political parties. They would be appalled at our discussion—appalled. 80-4 The fact that we're appointing a bunch of independents, fine. What concern is that of mine? But if you're trying to get rid of the loyal opposition, then it is a concern of mine, Senator McCoy, and it's a strong concern of mine. 80-5 I want to know how a parliamentary system based on the U.S. model—I believe the U.S. model, but they have opposition and government, just like we have here, exactly the same. How are we going to operate without a loyal opposition, without it being Heaven on Earth? How would we do that? 80-6 Senator McCoy: Let me remind you—I have said it over and over again—that I have no objection to political caucuses. I think that's a red herring. 81 I will say this: One thing about the Westminster model that is consistent is the lower chamber, and one of the things that is very consistent is responsible governments. The Prime Minister is the person who heads the majority party, or at least the largest party in a minority government, and holds that head-of-government role until such time as he or she loses the confidence of the elected members of the lower chamber. 81-1 In that chamber, as of 1874, the tradition has been that there has been Her Majesty's Loyal Opposition. It is basically the government in waiting, and there's a very good reason for that. When we had kings and queens—"The King is dead; long live the Queen"—the executive never dies. That is a fundamental principle in some basic constitutional— 81-2 Senator Cools: It's still fundamental. 82 Senator Tkachuk: Still fundamental. 83 Senator McCoy: I say it is. We need something in practice that actually makes that operative. The way the people in the United Kingdom came up with this hybrid, which they call it, the best kept secret I think over there, is that they have a government in waiting that could take over in a nanosecond. So there's always a government. The executive is always in operation, remembering that the government is only the Prime Minister and the cabinet. The government is not all the backbenchers. 84 Senator Cools: It doesn't include the Governor General. 85 Senator McCoy: It does, as a representative of the Crown. 86 Senator Cools: The representative not of the Crown, of the Queen. Punctuating an enacting power in the Constitution, nothing becomes law in this country without the agreement of the Governor General. 87 About transparency, I doubt that the last dozen or so paragraphs do much to enhance Canadians' respect for our Senate. n87
The Chair: Senator Eggleton, please. 88 Senator Eggleton: I'm going to put aside the Westminster and official opposition issues for the moment. I want to ask you about the reality of the current situation. 89 The Prime Minister has decided to change the system and how appointments are made. New vetting machinery has been put in place. Senators are being appointed to be independent and less partisan. 89-1 From what I can see with the way that selection process is going on, we are going to continue to see people of that nature coming to the chamber. Some of them belong to your group, and I would think your group could be considered similar to the cross-bencher group, at least in terms of organization. People of different political perspectives and different values are sitting there for organizational purposes. 89-2 Yes, they do have some people that are Conservative and some people that were formerly part of the Liberal caucus, but the appointments that were made in the spring, aside from Senator Harder, who is the Government Representative—I don't consider him to be independent, but the other six are independent. I don't see any of them have joined either the Liberal or the Conservative caucuses. I think they're probably trying to remain true to the basis of their appointment, to be independent and less partisan. As you say, there's a lot of public popularity in that thought. 89-3 Continuing down that path, and I see no reason why the government would change—you never know, but I don't at the moment see why the government would change that path—we ultimately could end up with 105 independent people in the chamber. I'm not saying that's a bad thing, although some people have referred to it as "105 loose fish." 89-4 How do you think that will work? If these people are appointed to be independent and less partisan, they may well join your group because it's just an organizational group, but they're not likely to join the Conservative caucus or the Liberal caucus, I would think. How do you think it will work? 89-5 I think we're losing a lot of Conservatives next year, who agreed to be here for only eight years. 89-6 I believe this was an oral agreement with Prime Minister Harper and contingent upon the Supreme Court agreeing to an eight-year term limit. Which it did not. Still, one would like to know what the actual wording of the agreement is. Nevertheless, I have seen press reports about senators appointed by the then P.M. stating that they intended to resign soon. n89-6
Senator McCoy: True. 90 Senator Eggleton: I think we're heading towards many more of the independents very soon. How do you think that would all work? 90-1 Senator McCoy: As I said earlier, do I believe there needs to be organized groups? Absolutely. 91 Do I think we need to be disciplined in how we structure debates and scrutinize legislation? Absolutely. 91-1 Do I have all the answers? No. 91-2 Do I hope that there will never again be a single group that has the absolute majority in this chamber? Yes. 91-3 We see the numbers coming at us. It worries me. I also think, frankly, it could happen. They could be watching you and how you handle issues, how you develop policy momentum behind certain themes and decide they want to work very closely with you and, therefore, they will join your caucus. I can see that as a possibility. 91-4 I can see it as a possibility on the Conservative side, too, especially around some of the expertise in that caucus. 91-5 Why not? Why wouldn't people do that? 91-6 Senator Eggleton: Because they're appointed as independent and non-partisan. Wouldn't they feel they have an obligation just like the Conservative senators who said they would stay for eight years? 92 Senator McCoy: I'm not sure they do. I think that's a big shift. I think before, most appointments—not all—were given as a reward, and then there was an obligation. I don't think people are feeling an obligation now. 93 Senator Cools: I got no reward. There was no reward for me. I was personally identified by Mr. Trudeau himself. 94 Senator Joyal: In the cabinet— 95 Senator Cools: I'm so happy you were there. I know who supported me and who did not. 96 Senator Tkachuk: You still remember. 97 Senator Cools: Very well. 98 The British system in North America was willing to be flexible and to make certain adaptations because it understood, at the time, that it was moving into creating a constitutional system for a new country, partly settled, partly conquered and with enormous religious and linguistic differences. 98-1 They adapted their system, brilliant as it is and as it was. It still remains one of the greatest creations of humankind, I believe, because they did not have an aristocracy here to rely on, and it was not clear that the new Canadians wanted an aristocracy. So they came together with something that was a lot like the House of Lords but was given greater powers in financial matters—sections 53 and 54 of the British North America Act, 1867—and that was what the political people here wanted. 98-2 You talked about Lord Carnarvon. He was an absolute genius, a giant intellectually. 98-3 When we look back to that time and say there were fewer political parties then compared to political parties now, I don't think it's fair. I even think it's futile to compare political parties now to political parties in the time of Sir John A. Macdonald. Political parties today are well-oiled, well-greased, well-financed, well-run machines. That was not so in those days. When you understand the conditions and limitations that they were working under, many of the bills that first started were drafted personally by Sir John A. Macdonald himself. The Confederation agreement, he himself drafted at least 44 of the 72 resolutions that became the British North America Act. 98-4 We cannot really compare politics and political parties in the Senate or the House of Commons today because they're two different realities. Those days were a lot more basic. That's the second point. 98-5 In talking about the Senate, you raise the issue of the proclamation. The proclamation you're speaking of is the proclamation of the BNA Act. It was not a proclamation of senators. But they reached clear agreement in 1864 at the Quebec Conference that the members of the new upper house—remember, the constitution of the upper house was a make-it-or-break-it of the agreement. If they couldn't come to an agreement on that, everything was over and they would pack up their bags and go home. 98-6 That was agreed in 1864. This is very well recorded in Joseph Pope's works, that the new upper house would be chosen and members would be chosen from the old upper houses, then called the legislative councils. This was agreed, and they were happy that they came to this agreement. 98-7 George Brown has a beautiful quote in the Confederation debates where he says the quid pro quo of the upper Canadians—they called them upper and lower in those days—was that they were going to leave if they didn't get representation by population. He said, "Our lower Canada friends, their quid pro quo was equality in the upper house." 98-8 Let us understand. These things didn't drop out of the sky. This was the result of some highly skilled, well-honed, brilliant men who met and were up against the wall. There was a terrible civil war going on in the United States of America. The Americans were provoking war with Britain, and they were planning to annex Canada and take over Canada as a result. 98-9 In addition to that, they were dealing with the Fenians. The Fenian Raids, everybody's forgotten about that now. 98-10 So I don't think it is really helpful to compare some of these things because you were talking about completely different political times. 98-11 The Liberal Party of Canada really only coalesced under Laurier. Laurier was an MP for a lot years from 1874, but he became Prime Minister in 1896. And this was a huge thing in Canada—to 1911. 98-12 He was another giant. André Pratte has written about him. 98-13 I have to go; some people from Treasury Board are waiting for me. 98-14 In any event, what I'm trying to say— 98-15 Senator McCoy: Saved by the Treasury Board. How many people can say that? 99 Senator Cools: Not at all. It's very important. We're talking about how many people in Britain attend and who do not in the House of Lords, but let us understand that the volume of work coming out of government in terms of bills and legislation outstrips anything that we used to know in the old days. 100 So we really have to apply a whole new perspective, but we have to stay with the principles. The principles are that a government should begin a debate in the Senate with a body of support. Nobody should have to be running around to build support on each and every bill. 100-1 That's where you got the idea of government supporters and you got idea of opposition supporters. I don't see how we can abandon that and discard it very quickly. I don't see how it's possible and then still call ourselves a Constitution similar in principle to that of Great Britain. 100-2 Anyway, we'll have to continue this another day. I have to go. Trust in me, fellows: I have read a lot, not a little—a lot on these issues. At the end of the day, the man who stands out like a giant among them is Sir John A. Macdonald. 100-3 And thank God we had a man like Brown who was prepared—he was one of the reformers; they were the original reformers—and they were prepared to make compromises. That is the genius of what they produced. That they went and they had difficult conditions, they had their own positions but they were able to come to agreement. That is something that is very hard for strong-minded people to do. 100-4 Anyway, goodbye. I have to go. 100-5 The Chair: Thank you. 101 Senator Frum: Two quick questions. The first is a follow-up on the exchange you had with Senator Eggleton a moment ago. 102 Senator Eggleton asserted, and I agree with him, that the senators who have been appointed by Prime Minister Trudeau are not free to join the Liberal or Conservative caucuses because they made a pledge to the Prime Minister to remain independent. Doesn't that in fact reveal a paradox that they cannot be terribly independent if they are bound by a pledge they made to the sitting Prime Minister? 102-1 Senator McCoy: I haven't had a chance to get to know the six that were sworn in yesterday to the degree that I've gotten to know the six who are members of the ISG, but I can say in personal conversations with the six who are my colleagues in ISG that none of them made that pledge. Indeed, several of them told me, without prompting, that it was in reverse. So when they were invited to join us, they said, "Can you guarantee that I will be independent?" So it was the Prime Minister that was pledging, not the new senator. 103 So your assumption, I think, is not well founded. Actually, I think Senator Eggleton, who started with that assumption, then began to shift his opinion at the end. 103-1 I thought I heard you say it. 103-2 Senator Eggleton: I didn't say "pledge." I said they might feel "honour bound." 104 This transcript does not record Senator Eggleton saying either "pledge" nor "honour bound" and so I presume that Senator Frum's recollection stems from some other session. I ran into a similar problem in a reference by Senator Joyal to "the model that you [Senator McCoy. v.E.] advocate or propose that we adopt so that it would not be the cross-bencher model of the House of Lords in Britain," Par. 13-1 I thought, but am quite unsure, that it might have referred to Par. 12-3. So, transparency has its rough edges that need some attending to. n104
Senator McCoy: I said I didn't think so and you started to agree with that. 105 We'll get to know them, Senator Frum. We might find that your assumption is true of some of them and not of others. I don't know. 105-1 Senator Frum: There's something intriguing there about the exchange that happened between the senators and the Prime Minister who called them to the Senate. There was some exchange of expectations, clearly, that we're not privy to. 106 By the way, there was no expectation on the part of Prime Minister Harper about an eight-year term. 106-1 Senator McCoy: Too bad. 107 Senator Frum: Because you could get rid of the opposition so much more quickly if it were true; isn't it? 108 Senator McCoy: My experience was I was appointed by a Liberal Prime Minister, Paul Martin. I have not met him to this day. He phoned me up; it was a 30-second telephone call. I can attest personally that there was never an obligation put on me when I was appointed to the Senate. So not all senators have come with this expectation, stated or otherwise, that you would support a certain party line or a certain "sway" of thinking. There is an opportunity now for an experience somewhat similar to mine, perhaps. 109 Senator Frum: It would be interesting to know, I'm sure you agree, the nature of these conversations that take place between Prime Minister Trudeau and his appointees about his expectations of them. 110 Senator McCoy: We'll see. I don't know. 111 I invite Senator Pratte, if you wish, to please share your experience. 111-1 Senator Frum: I want to ask you one question before that. I don't think in your presentation you mentioned which other Western democracy has abolished its official opposition in any of their parliamentary bodies as part of a modernization process. 112 Senator McCoy: I don't think I noticed. But we weren't looking at modernization processes, per sé. 113 Senator Frum: I'm just saying that this committee here is dedicated to ways in which we can modernize the Senate. The big idea that has come out of this committee is if you abolish the official opposition, you have made your parliamentary body more modern. I'm just questioning: Does that idea stand up anywhere else in the Western world? 114 Senator McCoy: I think there are some examples where upper chambers are not dedicated to that. 115 Senator Frum: Do you have specific ones in mind? 116 Senator McCoy: I'll have to check the list because I have not got it memorized. There are some 79 of these and they are all over the map geographically. 117 Senator Frum: China and Iran and places like that. 118 Senator McCoy: No, not China and Iran. We're talking about parliamentary democracies and we take people off the list if— 119 Senator Frum: You know something, I don't think there is an example, but if you have one— 120 Senator McCoy: I'll look. You need a little faith. 121 Senator Frum: It's not a question of faith. I think democracy is well served when there is opposition. 122 Was it your proposition when you thought of the ways to modernize the Senate that the problem with this chamber is that unelected senators do not have enough influence and power? I think we can at least agree that with the recommendations you're putting forward on how to modernize the Senate, the influence and power of individual senators will increase. 123 Senator McCoy: It's was in Ken Whyte's article in The Globe and Mail a few days ago when he said that as a young man, as a groundskeeper on the lawn at the legislature in Alberta, he met Peter Lougheed and years later Peter said, "Why would anybody want to be elected?" 124 Senator Frum: Sure. 125 Senator McCoy: Another thing Peter said, and absolutely banned it from our vocabulary, is that he would not allow any of his constituents—and I was one of them, in his constituency association; I was part of his cabinet; I was always in cabinet; I wasn't a backbencher—he would never allow us to say that he or the Progressive Conservatives of Alberta are in power. He would say, "We are in office; we are here to serve." 126 So this has been ingrained in those of us who have been raised in the Lougheed tradition. We are here to serve. We're not here for power and influence; we are here to serve. It's what the summons says, to advise and to assist. 126-1 The difficulty that we all know about the structures, especially when it is been embedded in section 36 of the Constitution—and I do think it would be found illegal if we tried to change that—is that we are obliged to settle questions by majority of votes. So that actually does set up the possibility of a tyranny of a majority. 126-2 So what we see from time to time—not always—the way it's been going back and forth, you have a build-up and now you've got 55 Conservatives. And then it tips the other way, and now you've got 58 Liberals. You keep having these two groups, one in, one out, and one always has the absolute majority and can do what he or she will, and it just sets up the possibility for agreements that would not necessarily be healthy if there were more parties in the Senate. 126-3 The ultimate example of this is the genius of George-étienne Cartier. Anne Cools does not agree with me on this, but I say the real genius in the Canadian Confederation was George-étienne Cartier. In fact, John A. Macdonald himself said that we would not have a Canada if it weren't for Cartier. Cartier was the one who said—and that's why the deal was that we would have a Senate and its equal—that the only way we are going to preserve our culture and linguistic hegemony in Lower Canada, among the francophones, is if we have more than two parties. Of course, it was absolutely coming from experience, because they had a deadlock between Upper Canada and Lower Canada. 126-4 Senator Frum: Was it your intention to empower, more than the current system allows, individual senators? 127 Senator McCoy: No. Heavens. Why would I? I think, though, that I would like to give us encouragement to improve the level and degree to which we scrutinize legislation. I think we should become more sophisticated. As I keep saying, we have the brain power, and I include you in that. We've got some very bright people here. 128 The Chair: I'd like to bring the meeting to a close. 129 Thank you, Senator McCoy. It was an excellent discussion. 129-1 I want to acknowledge this once again: The reason we have these free-wheeling discussions and not cutting people off—I know it gets frustrating at times—but it is a way to forge a consensus on issues. 129-2 This discussion today has helped me, as chair, to see a direction to where we're going. That's why we have the free-wheeling discussion. I know it's frustrating, but we always try to have an hour and a half for this. This has been very helpful. 129-3 Thank you very much, senator. 129-4 Senator McCoy: I didn't find it frustrating; I found it stimulating. I appreciate the opportunity for the lively debate. Thank you very much. 130 The Chair: It was stimulating. So I can go home now and write part of the report. 131 (The committee adjourned.) 132
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