 CANADA The Special Senate Committee on Senate ModernizationConsideration of methods to make the Senate more effective within the current constitutional framework: Issue 8 23rd Meeting, November 30 2016 Witness: Senator Joseph A. Day, Leader of the Senate Liberals 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 Tom McInnis (Chair) in the chair. 2 The Chair: Today's meeting is in public. Over the past few weeks, we have been hearing from the leadership of the different Senate caucuses and groups. In my invitation to each of them, I asked them to reflect on the following questions. To date, we have heard from the Government Representative in the Senate, the Leader of the Opposition and the facilitator of the independent senator's group. Each of the leaders has been posed the same questions, and they are: Do you believe that political party caucuses have a role in the 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 Today I am pleased to welcome our next witness, the Honourable Senator Joe Day, Leader of the Senate Liberals. 3-1 Senator Day, welcome to our committee. It's good to see you. Please begin your remarks. 3-2 The Honourable Joseph A. Day, Leader of the Senate Liberals: Thank you, Mr. Chair and honourable senators, for inviting me here today and for the work you have done thus far on this ongoing file. The work this committee is doing on Senate modernization is very important. 4 The 35 paragraphs that follow provide a facinating overview of some conundrums associated with partisanship and/or non-partisanship in our Senate. Neither fish, nor fowl. But overlooked is the red herring: the electorate. The electorate, the people whom all of this wrangling is about are themselves less partisan as well. It appears that the electorate has put its weight increasingly behind electoral platform planks and chasisma of those standing for election and less behind party philosophies. I discussed this at some length in comments inserted in the MDRN committee meeting of November 16, with Senator McCoy as witness, see here ff. n4
I would like to begin by thanking the committee members for this invitation to share my views on how the Senate could be structured and organized in the months and years ahead. I've had the opportunity to read the transcript of the remarks of each of the other leaders that the honourable chair has referred to, and I must say that there have been some very good presentations and very good work has been done by this committee and in relation to those presentations. 4-1 But, as Senator Carignan did when he appeared here, I want to caution that although I am the leader of the independent Liberal caucus, today I'm speaking solely on my own behalf. There are a great many views and opinions among the members of my caucus, none of whom have submitted to whipped votes or any party diktat about how our institution should move forward. So what follows are my personal views. 4-2 Four questions, which the chair has just indicated, were communicated to me when I was invited to attend and upon which I intend to comment, but I would like to begin on a broader basis by establishing some context from which these remarks have evolved. 4-3 Senator Harder has said that he wishes to see the Senate change so that it could be "closer to the non-partisan and complementary body that the framers had envisaged and the Supreme Court endorsed." 4-4 We have heard Senator Carignan and Senator Cowan questioning whether there was actually such a vision of a non-partisan Senate by the framers of our Confederation. 4-5 I have no issue with anyone arguing that the Senate should be non-partisan. That is a matter of debate concerning the future. But I do have concerns when it's argued that the Senate should return to non-partisan roots—not to its less partisan roots but its non-partisan roots. 4-6 I absolutely agree that the Senate was designed to be less partisan than what we have seen in the last while. Lifetime appointments provided security of tenure, as in the judiciary, in order to help senators to withstand short-term political pressures. But less partisan is not the same as non-partisan. These are very different concepts. 4-7 Senator Carignan, when he appeared before this committee, did us all a service by setting down some of the important facts about the original Senate, particularly how Conservative Prime Minister John A. Macdonald appointed 25 Liberal senators to the first Senate that was created. 4-8 They sat together as an organized opposition party and were led in the chamber by Luc Letellier de Saint-Just, who Senator Carignan described as a fierce partisan. 4-9 Senator Saint-Just subsequently became Leader of the Government in the Senate in 1873 and served as Minister of Agriculture in the cabinet when the Liberals took power under Prime Minister Alexander Mackenzie. But Saint-Just was hardly the first senator to serve in cabinet. In fact, there were five senators in Sir John A. Macdonald's first cabinet, and they included the Receiver General, the President of the Privy Council, the Postmaster General, the Minister of Agriculture and the Minister of Marine and Fisheries, particularly important portfolios in our country's early years. 4-10 Five cabinet ministers in a chamber of 72 members hardly seems like a description of a non-partisan chamber in 1867. Even more illuminating is that Macdonald's first cabinet consisted of 14 ministers, so the five senators who served in Canada's very first cabinet made up more than a third of the members of that cabinet. 4-11 During the first 33 years of our country's, existence until the turn of the century, 24 different senators served as cabinet ministers for extended periods of time. 4-12 In those early years following Confederation, not only was the Senate home to numerous cabinet ministers, it was also the place from whence two of Canada's first Prime Ministers exercised their authority. 4-13 Senator John Abbott served as Prime Minister while in the Senate, from June 1891 to November 1892. He was our third Prime Minister. Canada's fifth Prime Minister, Senator Mackenzie Bowell, served as Prime Minister from December 1894 to April 1896 while a member of our chamber. 4-14 It needs to be emphasized that a serving senator as Prime Minister of Canada was not considered a radical proposition at that time. In 1878, Mr. C.C. Colby, a distinguished member of the House of Commons and cabinet minister, some of whose personal papers are housed at Queen's University, wrote a paper on parliamentary government. He subsequently presented it in a lecture to the law school at Bishop's College in Lennoxville, Quebec. In it, he wrote that upon the resignation or dismissal of a Prime Minister, "it becomes the duty of the governor-general to communicate with some member of the Senate or House of Commons who may possess sufficient influence with his party to be entrusted with the task of forming a new administration." 4-15 That is exactly what occurred a dozen years after he wrote these words when the Governor General approached Senator John Abbott and then Senator Mackenzie Bowell to form new governments and to serve as Prime Minister while seated in the Senate Chamber. To paraphrase Mr. C.C. Colby, each of these two individuals had enough influence within their political party, even though they sat in the Senate, to be selected by the party hierarchy to be Prime Minister of Canada. 4-16 Not only was the Senate generously populated by prime ministers and ministers in those early, allegedly non-partisan years, there is also the illuminating case of Senator David Macpherson who, from 1880 to 1883, while serving as Speaker in the Senate, also served as a minister in Sir John A. Macdonald's cabinet. He was actually sworn into both positions by Prime Minister Macdonald on the same day. 4-17 Imagine if that example were followed today; if Senator Furey was suddenly named to Prime Minister Trudeau's cabinet while continuing to serve as Speaker in the Senate Chamber, entrusted with being an impartial referee in that Senate role. Can anyone imagine such a scenario today? Is that the alleged non-partisan Senate to which we want to return? I put those questions to you, honourable senators. 4-18 Colleagues, I could go on at length with more examples to demonstrate that the Senate was from its very first day a partisan institution. It was designed to be a partisan institution, just as it was designed to be a powerful legislative body. 4-19 The Senate was created, as you all know, along the traditions of the Westminster partisan lines and actually populated on the instructions of those framers of Confederation with very serious partisans. 4-20 While it is an obvious fact that Senator Harder, along with Senators Bellemare and Mitchell, are not affiliated with any political party, the three of them do want to be identified as the GRT, the government representative team, or as some refer to them, the G3. They are government senators, period. They are the only senators subject to outside direction: not from a political party but from a government. 4-21 So as we look to modernize the Senate, let us at least agree on where we are starting. The simple truth is that the Senate was created as a powerful legislative chamber designed to operate on partisan lines. Because of the constitutional provisions concerning money bills, the Senate is not as powerful as the House of Commons, and because of tenure and the appointment process, it is not as partisan as the House of Commons. But less powerful does not mean powerless, any more than less partisan means non-partisan. To paraphrase Senator Carignan, there is no utopian pre-partisan, post-Confederation Senate world for us to return to. Such a world did not exist. 4-22 The way one could view the situation today is that we are being encouraged to transform the Senate by eliminating the usual features of the Westminster parliamentary model and fashioning it into a non-partisan model which I don't believe can be found in any other major democratic assembly in the world, and which certainly has no serious history in our country. 4-23 In my view, we need one group, in our case, the three government senators, to put forward the government's legislation and to make arguments in support thereof, and another group, the official opposition, to help test that legislation by pointing out opposing points of view. That is the fundamental Westminster model. 4-24 I understand working to reduce partisanship in the Senate. I do understand that. I was witness to some of the problems that resulted from the hyper-partisan atmosphere that we have experienced in the recent past, but the vision of eliminating partisanship altogether is a surprise. I am genuinely curious about why Senator Harder is championing this vision. Is this a personal mission that he feels strongly about—that the Senate must be transformed in this way? Or is he pursuing that vision as the Government Representative in the Senate? 4-25 If he is doing it as a holder of that office, as the government's delegate, ambassador, representative, spokesperson or leader, he is speaking on behalf of the government and encouraging us to model ourselves in the image the government is creating for us. 4-26 If we agree to go down that road, whose interests will we be serving, honourable senators? When he appeared before this committee, Senator Harder said: 4-27 While I've engaged the government about some of these issues, the views I express today are those that I have come to as an independent senator and, yes, as the first Government Representative in the Senate. 4-28 That sounds like he is approaching his mission from both angles or perspectives—as a self-described independent senator and as a senator who has undertaken and is being paid to represent the government in the Senate. 4-29 In January of 2014, when he was the leader of a small caucus in the House of Commons, the leader of the third party in that chamber at that time, facing a seemingly omnipotent Harper government, Mr. Justin Trudeau said: 4-30 If the Senate serves a purpose at all, it is to act as a check on the extraordinary power of the prime minister and his office, especially in a majority government. 4-31 Two and a half years later Mr. Trudeau is now the Prime Minister with a majority government, exercising the extraordinary power he cautioned the Senate about. And now his representative in the Senate is asking that we embark on a course that, as some have already told us, could actually make it much more difficult for the Senate to act as a check on that power. 4-32 When Senator Harder acknowledged that he was engaged with the government about Senate modernization issues, I find it hard to imagine that those discussions focus on how to make the Senate a more effective check on the Prime Minister or his office. Yet that is our job according to the now Prime Minister of Canada and that is what he expects us to do. Fortunately the Senate is not some government department that the Prime Minister's Office has the power to reorganize, merge, rename or even eliminate. 4-33 In my mind, the fundamental question is whether the Representative of the Government in the Senate wants to reorganize the Senate so that it can act as a more effective check on the government he represents. If the answer is yes, that he wants us to be a more effective counterbalance, how is that reconciled with Senator Harder's duty to represent the government? His duty to advance the government's interest in our chamber is his primary purpose. 4-34 Until I can better understand whose interests are going to be served by his suggestions for a rapid and total transformation of the Senate, I am going to take a cautious approach when considering the ideas being advanced. 4-35 That is my overview. 4-36 Allow me to turn to the four specific questions, Mr. Chairman, that you asked me to address: Do I believe that the political party caucuses have a role in a future Senate? Does a modern Senate need government representation? Does a modern Senate need an official opposition or any opposition groups at all? What changes do we feel are required to our rules or practice? And that's "do I feel" because I'm not, as I indicated, speaking for the other members of my caucus in this instance. 4-37 With respect to the first question concerning whether political party caucuses have a role and a future in the Senate, over the centuries, conventional wisdom has been that political parties are an essential or, at the very least desirable, element of Parliament. In 1872, Benjamin Disraeli, certainly one of the most famous and influential prime ministers of the United Kingdom, said: "I believe, without party, parliamentary government is impossible." 4-38 Alpheus Todd in volume 1 of his seminal 1887 work "On Parliamentary Government in England" wrote: 4-39 For parliamentary government is essentially a government by means of party, since the very condition of its existence is that the ministers of the crown should be able to guide the decisions of Parliament, and especially of the House of Commons; and all experience proves that no popular assembly can be made to act steadily under recognized leaders except by party organization. 4-40 In 1945, the Librarian of the British House of Commons, Strathearn Gordon wrote a book on the history and operations of Parliament. Over the years it has been republished in six different languages, including Japanese. In it, Mr. Gordon quoted approvingly Viscount Hailsham, who said: 4-41 The truth is that Party is as vital a political institution in this country as Parliament: without Party, Parliament would wither and decline into a debating club without responsibility, or a Reichstag, whose business it would be to register approval of the decisions of a dictator or a bureaucracy. 4-42 Given this long history, discouraging the presence of political parties in the Senate of the future is certainly a very radical proposition. To discourage or, even worse, forbid any level of party-based partisanship as a remedy for excess partisanship makes me very uncomfortable. 4-43 When Mr. Trudeau announced in January 29, 2014, his vision of the new Senate, he also said: 4-44 We have freedom of association guaranteed by our Constitution. Any individual is free to take out a membership or to keep a membership in the Liberal Party of Canada. 4-45 Freedom of association is described as one of the fundamental freedoms in the second paragraph of the Canadian Charter of Rights and Freedoms. It would be more than just bizarre if the Senate of Canada adopted some rule restricting that fundamental freedom for its own members. 4-46 So in answer to whether political party caucuses should have a role, I would like to think that all of us in the chamber believe that it is entirely up to the individual senator to decide how he or she wishes to associate with one another. All Canadians, including senators, have the same right under the Charter. Given the fundamental nature of the freedom of association, as well as our individual independence, I am surprised that this question is even being asked, because the answer is obvious. 4-47 Frankly, alleged party association is, in fact, a complete red herring. Senator Harder says that he is independent because he has "no formal ties to the governing party." That, with all due respect, is not the test or the issue that we should be putting. It is the formal ties with government and not the formal ties with the governing party that is the key issue where his independence is concerned. 4-48 No government leader in the Senate would have ever felt pressure from a call from the president of his political party. All, however, would have received calls from the Prime Minister's Office or a minister's office concerned about their bills or concerned about policy studies that were being proposed by the Senate. These callers would have no interest about whether the government leader was a card-carrying member of the governing party. That would be totally irrelevant. 4-49 The problem has never been formal ties to the governing party; it has always been formal ties with the Prime Minister's Office, with the executive and with other cabinet ministers. 4-50 Likewise, for the Official Opposition in the Senate, the issue has never been pressure from the political party; it has always been pressure from parliamentary colleagues down in the hall in the OLO, the Office of the Leader of the Opposition in the House of Commons. That is the important difference. 4-51 With respect to the second question, Mr. Chairman, about whether a modern Senate needs a government leader or representative, I leave it up to the government to make that decision. An official government presence continues one of the most important features of our traditional Westminster parliamentary system, and the current government has chosen to maintain that tradition. 4-52 When Senator Harder appeared before the Subcommittee on Estimates in May, he asked for "the allocation that was traditionally provided in my role." Although the role was now described as "Government Representative," he was seeking the traditional budget of the government leader, in its entirety. 4-53 When Senator Harder appeared before this committee on September 28, he described in some detail his specific responsibilities in the chamber, which sounded much like the duties of his predecessors. At one point, he said: 4-54 I believe that my task is not to be affiliated with a particular party or caucus or partisan identification but to advance the government's legislative agenda . . . . 4-55 I suppose one could paraphrase this as saying "I don't want to be identified as a partisan Liberal as I carry out my responsibility of advancing the Liberal government's legislative agenda in the Senate Chamber." 4-56 So it certainly sounds as if the decision has already been made that the government does require some kind of formal representation in the Senate chamber, as has been the long-standing tradition. 4-57 This naturally leads to the third question; namely, does a modern Senate need an official opposition or opposition groups? I can see the advantage for the government of having a traditional government leadership structure in the chamber, supported by the entire machinery of government, charged with advancing the government's legislative agenda, but doing so without a traditional opposition structure to oppose it. 4-58 I can understand how this would be in the interests of the government, but I do not see how that could be in the interests of this chamber of sober second thought, which, as we have been told, needs to act as a check on the extraordinary power of the Prime Minister and his office. 4-59 The government and the Prime Minister's Office are very organized, and it would seem to make common sense that if we are supposed to act as a check on their powers, we need some level of organization ourselves in the Senate Chamber. 4-60 Some dyed-in-the-wool senators, throughly conversant with the trick of the political trade, especially tasked with assessing what's going on elsewhere in government? n4-60
Finally, with respect to question number 4, I have been asked what changes I feel are required to our rules or practices. Let me begin by saying, and I'm going to quote this: "The question of reforming the Senate with the object of bringing it into harmony with public opinion has been the subject of discussion in the press and in Parliament for many years." Although I would like to claim authorship of those words, they are in fact the opening words found on the jacket cover of a book published over 100 years ago, in 1914. It was authored by Sir George Ross, of whom we have heard so much during last week's point of order and the decision of the Speaker just yesterday in relation to Bill C-2. This book is entitled The Senate of Canada Its Constitution, Powers and Duties Historically Considered. These opening words show that the debate we are having today is, in reality, a continuation of the debate that has been taking place for well over a century. During that time, the rules and procedures of the Senate have evolved, as they will continue to evolve. It's just that we are working and trying to reinforce and review Senate rules at an accelerated pace at this time due to the unusually large number of new senators being appointed. We must consider how to accommodate them under our existing rules and what rule changes must be made to accommodate them. I firmly believe that we should be accommodating the new senators and looking for ways to do that. 4-61 I leave it to your capable deliberations, honourable colleagues, in this Modernization Committee and, subsequently, to the Rules Committee and, ultimately, to the Senate itself to determine what rules would be appropriate at this time to change, having regard to the Supreme Court of Canada and how it described our role as one of Canada's foundational political institutions, the Senate of Canada. 4-62 The Chair: Thank you very much, Senator Day. 5 As expected, we have quite a list of questioners. We always start with our deputy chair, Senator Joyal, followed by Senator McCoy. 5-1 Senator Joyal: Thank you, Senator Day, for your presentation. There were historical elements to it, and I think it is important that they be made available to every senator and be put on the table. 6 My question is in relation to partisanship versus the influence of government ministers in the chamber, which is at the core of the statement made by Mr. Trudeau when he was the leader of the Liberals in the House of Commons, at the time of the government of the Right Honourable Stephen Harper. 6-1 Is it not more dangerous for the Senate to be scattered under those five members, whereby the executive minister can approach senators individually, confidently, through telephone calls or through meeting in offices, whereby nobody is made aware that that contact and influence is exercised on senators? Is it more insidious and antidemocratic than a senator declaring his allegiance to a recognized party, according to the Elections Act? Everybody is in a position to judge if that person goes overboard in his partisanship when he or she makes statements or intervenes in debate. It's for everyone to judge. If I declare that I'm a Liberal, everyone can judge me on that basis, but if I receive a phone call because I am a senator who has no allegiance, from a minister to press me to vote for the government bill or to stand for the government bill, does it not undermine the role of the Senate? Because if I go overboard in my partisanship, it's for everybody to see and to judge and to criticize, either in the chamber or in the media or in public opinion, and to denounce accordingly. But if I am just open, freely, to influence of any minister of the Crown or any representative of the government in relation to my voting, am I not in fact undermining more that status, the role of the institution to keep a check on the executive and to bring sober second thought to legislation? 6-2 Senator Day: Thank you for your question, Senator Joyal. I think there has to be a balance in there. 7 In the caucus that I'm now part of, we don't whip votes. If the minister called me, or Mr. Harder or Madam Bellemare approached me, and said, "How is your caucus going to vote?" I would say that we are free and independent to vote whichever way we feel we should vote. The suggestion that organizing into a political, partisan caucus would result in having one voice is, I think, past. For a period of time it did exist. There was a whipping of votes and there were different levels of whipping. I don't think that's desirable. 7-1 But the other extreme is no caucusing and all 105 individual senators being lobbied and no one knowing what is going to happen. That will result in some serious lack of discipline in the way matters are handled in dealing with our business in the Senate. There is an advantage for people of like thinking, of like minds, to exchange ideas, to test their ideas within their particular group of colleagues they know they can trust with confidentiality, until such time as the individual is called upon to make a decision, to express a voice in the Senate Chamber. So I'm looking for a balance between two possible extremes here. 7-2 Senator Joyal: Thank you. 8 Senator McCoy: Thank you for that answer, Senator Day. I don't know whether to be offended or not to think that if somebody phones me and puts a point of view to me as an independent senator and tries to persuade me to a point of view, that that would be considered in any way, shape or form as some kind of invidious undermining of the Senate of Canada. One does have to have some faith in the "honourability" of our members. 9 Yes, one should have such faith. But the continued presence of senators involved in scandals ... ah well.... n9
Having said that, I don't know that I heard you correctly in total. I heard you say that you believe, contrary to the evidence—but never mind, I won't hold you to it—that an official opposition is absolutely necessary in a Westminster system to hold the government to account. I didn't hear you say, or I don't think I heard you say, anything further. 9-1 At the moment, I think we have maybe 64 senators who do not belong to what we are still calling the opposition in the Senate. What role do you see for that two thirds of the Senate if you see only the opposition having that role? Did I mishear you? 9-2 Senator Day: I didn't use the term "absolutely." I absolutely didn't. 10 I believe that there is a role for the official opposition. In the system where you have one side presenting legislation and trying to highlight its good features, it's helpful for those independent, uncommitted senators—of whom there should be a lot of us in the Senate—to hear the other side, whether we agree or not. 10-1 The official opposition has a role to play to point out the weaknesses in the arguments presented by the Government Representative; to point out alternative courses of action; and depending on what the legislation is, to either present an amendment or, at the very least, to convince the government to consider these alternatives. 10-2 Senator McCoy: In our recent history, in June—and I can think of an example even this sitting—the sponsor of the government Bill C-7, which dealt with unionization rights for the RCMP, was Senator Campbell, an independent member of the Senate. In his first speech in the Senate on that bill he said it's a very good bill, mostly, but it needs improving. 11 Do you agree that independent senators and others all can take part in this responsibility to point out improvements and to help shape them? Indeed, he did help shape them because he put forth an amendment that improved the bill. 11-1 Senator Day: First of all, we should define "independent" senators. I consider myself an independent senator. I think we have got to be careful about terminology so we know what we're talking about. 12 Senator Campbell was the sponsor of the bill, as I recall, and I thought it was quite interesting that the sponsor immediately spoke out against the legislation. But that's a choice of the government. The government chose the sponsor. This is a government bill. Presumably, they knew what the sponsor was going to say and the government wanted to hear that. 12-1 I do not see any difficulty in any of us agreeing to sponsor a bill if we feel that we can do that within the parameters of our own conscience. 12-2 I spoke as the sponsor of Bill C-2. I was asked by the Government Representative to sponsor that bill. I looked at my experience. I looked at the bill and I felt that I could help the Senate Chamber understand what was in this bill, so I agreed to sponsor it. But I pointed out at the time that if I felt, as sponsor of the bill, that there was any amendment necessary or there was any explanation that had not been made that would be less favourable to someone voting for that legislation, I would feel free to do so. 12-3 Senator McCoy: Of course, we saw members of your caucus, as we did members of the independent senators group and the Conservative caucus, all bring amendments forward on C-14, the medically assisted dying bill. 13 Then there is the example of Bill S-2, a bill to do with the recall of motor vehicles. The opposition critic in the Senate rose to speak to that bill at second reading and said he had absolutely no problem. He agreed with everything in the bill. But then we discovered, all across the country, motor vehicle dealers bringing forward their pleas for improvement to the bill. Happily, our committee listened to that plea and brought that amendment back. 13-1 Once again, does this prove that we can't rely simply on the official opposition for all of us to do our job as scrutineers and improvers, if you like, of the legislation? 13-2 Senator Day: Senator McCoy, I absolutely agree with you. We can't abandon our role as senators, legislators and individuals who are expected, as independent senators, to look at the legislation and, based on our knowledge and background, let our colleagues know what we think of this legislation. 14 If we want to try to do that without an official opposition and see how it works, that's fine. But if there is someone there advocating the government's side, we need some structure or discipline to make sure that there is opposition started on this. There may be many other individuals who are not part of the official opposition who want to make comments, some of them averse to what the government has put forward. There is nothing wrong with that. In fact, it's our duty and our responsibility to do so. 14-1 Senator Tannas: Thank you for being here, Senator Day. 15 We have a decision that we have already considered here that is out but that seems to be not quite settled, and that's to do with caucuses. We have some folks, I think, who are quite strident in the opinion that caucuses should be limited, as they are right now, to political parties. 15-1 We have other folks, including Senator Harder, who have said no, they should only be non-partisan organizations. I have posited the question to others: Why the tyranny of "or"; why not "and"? Why can't we have both? I am wondering what your thoughts are on that. 15-2 Supplementary to that, what about funding equity for these caucuses? Are you in favour of that? You're the third party with a significant budget that serves the members of your caucus. What are your thoughts with respect to non-partisan caucuses, if we ever get there? Or even in the coming term, as we grapple with this, what about funding for independents at some level that presents equity between what your members enjoy versus independent members, our caucus or the government's? 15-3 Senator Day: Senator Tannas, let me start with the second part of your question. 16 I think if there is a defined group that has certain levels of responsibility and discipline—and I feel that we have that in our group now—then it is deserving of the same funding. I have made that comment in other places. Every senator should have an opportunity to fulfil the responsibilities that he or she has taken on. We shouldn't have funding for one group and not for another group, as long as certain parameters are met. 16-1 Senator Tannas: Some would say that the rules don't allow for that, and that we would need to present something, notwithstanding the rules, in order to do this prior to whenever it is that the organization catches up and the rules get changed. 17 Senator Day: Yes. 18 Senator Tannas: What do you think about that? 19 Senator Day: You're right. There are ways of achieving interim balance and equity through what we call sessional orders. Notwithstanding the rules, those are here and they have to be looked at. We know in the long term they have to be amended. They have to be changed. 20 But what can we do in the interim? Do we ask people to sit there and wait until we get these rules changed? We can't change the rules overnight. We have built-in delays. That's all to avoid unforeseen consequences. 20-1 I don't think we should change the process, but I do believe we have ways of dealing with the interim; namely, through what we call sessional orders. Notwithstanding the rules, this is what we will do until such time as we have had an opportunity to fully study the rules and make the changes we believe should be made. Whenever those rule changes occur, if it's before the end of the session, they take effect. 20-2 In terms of your other question, I think we have to draw a distinction between caucus organization from the point of view of procedural matters within the Senate and naturally formed policy-type caucuses. There may be a time when a policy-type caucus—all party caucuses—develops, sometimes within our own group, and there could be sub-groups on different types of policy matters. 20-3 The important thing is to make sure that the Senate functions well. If we have caucuses within the Senate that need funding in order to do their part of the job of making the Senate work well, then we should ensure that funding is there. 20-4 Whether we have funding for some of the policy, naturally forming caucuses is another question. I think it's a secondary question. We don't have an unlimited amount of money, and we should put the money where it can be the most effective. 20-5 Senator Bellemare: I am glad to hear you speak without reading from your notes. I completely agree with what you said. In the notes you read in answer to the committee's questions, however, I felt that you made a number of scathing remarks about the work of the government representative team, which is the group responsible for liaison between the other place and this august chamber. 21 I am no doubt both naive and idealistic, but when I accepted the position of deputy government representative, I saw it as a transitional period during which we have to help the Senate become less partisan, which is what all Canadians want, that is to say, less partisan than in the past. We have work to do and it is complicated. There are things that have to be done because the Senate would not exist without the other house. Our mandate is to consider the government's bills, and I think you agree with me. 21-1 You also agree that we are able to consider and analyze federal legislation objectively, without too much partisanship. That is what you just answered. On the other hand—my question relates to the reorganization of the Senate—I do not have the same understanding of partisanship as you do. Perhaps you can say more about my understanding. When you say that there is a place for senators who are members of political parties, I certainly agree with you. I no longer belong to any party, but I was once a Conservative Party member. In my opinion, Canadians want us to eliminate partisanship from the Senate under which senators follow the analytical approach of the political party to which they belong in order to take or preserve power, or to trip up the government in power. This kind of small "p" partisanship has no place in the Senate. 21-2 Changes are needed in order to make the Senate a less partisan institution, that is, to remove practices that lead senators to analyze or take actions that are rooted in the analytical strategy of their political party's beliefs. Since this cannot be done through constitutional change—we cannot suddenly have elected senators—we cannot limit the Senate's mandate. There are many things that we cannot do. It is imperative that we transform the Senate within our current Constitution. 21-3 Do you not think then that, in historical practice, partisanship became entrenched in our institutions in the Senate because the prime minister appointed the House leader and still appoints the Speaker of the Senate? The Senate's rules and practices have given the government House leader a set of extremely important powers related to the granting of various things such as offices, committees and travel, through the whip and the government executive team. This is a set of powers that means that if a senator belongs to a party caucus—the opposition party caucus also has powers—they must follow the party line. 21-4 All these little powers have become entrenched in the rules and procedures over time. That is why senators say they have to vote along party lines even if they do not want to. Partisanship has become entrenched in the Senate through its rules and practices. That is what we are trying to change. Do you not think that, as part of the reorganization of the Senate, we could eliminate all these practices and ways of doing this, rewards and punishments, and give them to non-partisan groups, such as regional divisions, to administer the Senate? That would mean creating regional administrative divisions, not caucuses. The political caucuses could then be partisan, but they would not have the power to grant little privileges or mete out little punishments if the senator wishes to be independent. That is what I wanted to ask you. 21-5 Senator Day: Thank you for your question. I am not sure where to start. I agree that the public wants change, but the problem is that the Senate caucuses are too close to the House of Commons caucuses. That is where the problem lies, in my opinion. I completely agree that there is no link in our group since Prime Minister Trudeau, the Liberal Party leader, kicked us out of caucus. My reaction was that our obligations as senators were no longer the same. We have short-term and long-term obligations relating to the regions and to minorities. That is not the case for the House of Commons and their caucuses. In my opinion, it is a good thing that we are separate. 22 Could there be a partisan caucus in the Senate without any link to the Commons caucus? In my opinion, yes, because it is a group whose members are ready to discuss things together and who think the same way. That is the best thing for the Senate. I use the term "group" because the public attaches a negative connotation to the word "caucus". 22-1 As I said earlier, we have to review the definitions or use other words such as "group". You, you are a team, which is different from a caucus. I am willing to change the way we operate with the members of the other house. 22-2 Senator Massicotte: Thank you, my esteemed colleague, for being with us and sharing your thoughts. I appreciate very much the details and the history. We heard some last week. It always adds a lot of colour, and I appreciate that. 23 My concern is more with the recent history of our institution and what we're here for. Let me repeat: The principal objective is how do we best satisfy our number one responsibility of sober second thought? How do we get there? The rest is details, but how do we satisfy that? We have to remind ourselves that's why we are here. 23-1 Having said that, I will make a couple of comments. On the existence of parties, many things have been written. I fully agree with all of that; it's just common sense. That's the brand and that's what the people identify with a party. But that is applicable because people must choose when there is an election. That is 100 per cent applicable to the House of Commons. I don't think the branding is as relevant for the Senate. I'm not even sure it's necessary or beneficial. I agree with all those comments when I look at the House of Commons, but I don't necessarily buy it here. 23-2 I don't have any difficulty with some of the things you said about us being affiliated with a political party. That's freedom of choice and appropriate for all the good reasons. 23-3 I will go a bit further from the comment of my other colleague. Having said all that, look at the recent history. I have been here for 13 years, and with the exception of this past year, I always say 99.99 per cent—because I checked it once but maybe it's 99 because we've seen some deviations recently—of the time every member of our party voted in accordance with the objectives and the agenda of our House of Commons colleagues. Yes, we're independently minded, but human nature as it is, we were extremely influenced by what happened at the caucus. Call it peer pressure and maybe brainwashing, but it was unusual that we left there and did not vote in accordance with how our peers and colleagues asked us to vote. 23-4 When I see that, I say, "That can't be good." If you look at our constitutional responsibility, we let that fall apart for the sake of defending our colleagues in the House of Commons. We weren't doing our job of being independently minded sober second thought. 23-5 My recent history is of more concern than the long-term history. 23-6 Having said that, and knowing my responsibility, how do we square that behaviour that occurred over many years in our caucus, never mind others, with our responsibility today? 23-7 What you seem to be saying is that it depends how you see partisanship. When you say there has to be an official opposition, if it is within the partisan parties that we saw in more recent decades, I say, "Bad news when the interests of a political party to win the next election dominate our responsibility to Canadians." That can't be good. I don't think that's appropriate. 23-8 But you seem to be saying, "No, you are right about that part. That's the ugly part of history. Let's not repeat it. But I'm okay with political parliamentary caucuses if they fully independent of the House of Commons." Then you are getting closer to what I think we should allow. We don't all have to be there, but that would be more acceptable to me than our old days. 23-9 At the same time, I look at recent history with Bill C-14 and Bill S-2, and I think the quality of the debate we had in the Senate was far superior in those two circumstances where everybody voted freely for what they thought was right as opposed to getting instructions from their political party or House of Commons colleagues. 23-10 So how do you square all that to say, "Yes, I want official opposition, which means partisan caucuses," to our own experience in the last decade and to our principal objective of sober second thought? 23-11 Senator Day: One of the great things about the large number of new Senate appointees is that it has helped us to focus on the importance of the independence as senators. We should all be acting independently. 24 I was here when you came into the Senate, so I share what it was like when we would agonize over voting against something that our colleagues were going to support. That existed because we allowed the system of the House of Commons and the whipped votes to infiltrate our way of thinking in the Senate. I can remember discussions on this many years ago, saying, "What is wrong with voting against this if I don't believe in it?" They would say, "Well, just don't come that day." 24-1 All of those things have to be in the past. We have to be able to exercise our independence. It's not just sober second thought. Look at all the Senate bills that we have—the bills that start here. We are a legislative body as well—not to the same degree as the House of Commons, but that's not sober second thought. That's a legislative role that we have. 24-2 So, yes, we allowed our institution to become too partisan, too dictated by the short-term needs of the other chamber. We are not, then, complementary; we are just rubber-stamping. We have to get away from that, and I think this debate is getting us away from that. 24-3 It has already happened: Mr. Trudeau helped us get started down that road. It has already happened. There were some who were not awfully happy with the way it happened, but it was the right thing. I hope it will happen for another political party within the Senate. Then we'll be there. 24-4 Senator Cools: I would love to thank my dear friend Senator Joe Day for what I thought was an outstanding presentation. I especially thank him for citing Alpheus Todd. As you know, I worship at the temple of Alpheus Todd. John A. Macdonald used to call Mr. Todd in quite often to consult him on difficult questions. 25 I see the Senate now as adrift. We can call it what we want, but the Senate is drifting with more uncertainty and insecurity than I have ever seen in the lifetime of the Senate. We should stop kidding ourselves and understand the state of being adrift. 25-1 The Senate has not even had a debate on these proposals of change. Some people—the government leader and the Prime Minister—have something in their heads, but that has not been put before the Senate for any debate, so we do not know if those ideas came out of serious research and study for years or if somebody just had a dream one night and awoke the next morning feeling enlightened. We really do not know; we are in a very strange place. 25-2 I have been trying to figure out, Senator Day, how we can tackle this strange place. I think we should tackle it by dealing with reality. The Senate has existed for a long time and has played a very serious role in Confederation. In addition, we should call a spade a spade and talk about the abuse and violation of senators and members of the House of Commons that would go on at the hand of so-called leaders and their staff. I have been summonsed several times before the leader's staff, so I know of what I speak. Every time they did that, it made it easier for me to stand my ground. I stopped many bills from passing, as you know, and got them amended, and I was sustained by public opinion every time. 25-3 The Senate government leader tells us that he is the representative of the government, but senators do not represent the government. We are the upper and the royal house. Senators represent Her Majesty, and we should understand that. We are Her Majesty's representatives. 25-4 I am under the impression, rightly or wrongly, that Senator Harder, along with the other two members of the "G3," would/should serve as a conduit—a rapporteur—between the Executive and the Senate rather than as government representative. As for elucidating or pushing a government bill, I understand that such would be up to a Minister invited to the Senate or a Senate committee for that purpose. n25-4
The government has the right to have a leader in the Senate. That was one of the agreements—and I've said it countless times—of responsible government, that the King will no longer intervene personally in government. He will govern by his ministers, who will be chosen from the two houses of Parliament. That is the essence of responsible government, and if we are not careful, we will lose sight of that. 25-5 In all of this, I am trying to figure out if it's not important that the Senate actually have a debate on these changes that are happening to us as if we are some sort of children being led along. I have been thinking about this for quite some time. We ought to have a debate on these proposals and the very profound questions that we muse on here. Because we are together, it gives us an opportunity to uphold them and to discuss them, but these issues have not been discussed or debated on the floor of the Senate. Actually, the Senate has no knowledge of all of the changes that it is going through, and we should have a debate. 25-6 When I read the Chair's closing remarks to this meeting, I was wondering about this. It's as if the left hand doesn't know what the right hand is doing ... at the presen time. n25-6
I put that question to Senator Harder a few days ago and he said that he is relying on the debate in the Modernization Committee. That is a different question totally from the outcome and the outputs of this particular committee. 25-7 I hasten to remind colleagues who were here at the last go-round of major proposals for change in the Senate, for example, the Meech Lake Accord—you remember that, and even the coming of the Charlottetown Accord—that the Senate then was active in the debate on the Meech Lake Accord. The Senate was forming opinions on the Prime Minister's opinions of what should happen to the Senate. But as it is right now, we are bystanders. We are observers in a process, groping, trying to find our way. I find this very worrisome. 25-8 Senator Day, you are absolutely correct when you said—and you quoted Mr. Todd—that parliamentary government is and has been for a long time government by parties, and I think we should maintain them. I hope I don't sound treacherous to anyone, but experience has shown that in politics, if people do not coalesce by ideas and principles, which is what political parties brought, they will coalesce by private interest and personal belief and even sometimes personal interest. 25-9 So I find the whole situation very worrisome, and I'm looking forward to a debate on the floor of the Senate on this matter. Maybe, Senator Day, you could lead it because your presentation this morning I thought was very thoughtful and straightforward. 25-10 But I can tell you the result of being pushed around. Many of us were pushed around by leaders' staff; make no mistake about that. I know many senators who quit because of being pushed around by leaders. We're not talking the distant past; we are talking about two or three years ago. 25-11 At any rate, Senator Day, perhaps you could put that into your thinking cap, and perhaps some of us could find a way to introduce a debate on the floor of the Senate on the government's proposed changes, because the government has not really spelled these changes out to us in any form or fashion. 25-12 Senator Day: Thank you, Senator Cools. 26 I'll go back to the point I made earlier about the fact that there have been quite a number of new senators being appointed. That has given us the opportunity to focus on issues that we might not have focused on previously when, in the traditional way, senators were summoned to serve two or three at a time. We would sit there and learn. We were told, "This is the way it's done," and we didn't get to ask why. Now, with the larger group, the question of why is right out in front of us, and that's healthy. 26-1 I don't think you should be concerned that we are adrift. I think what you should be observing, as I do, is that we're in the process of change and evolution. Managing change is not always easy and not always comfortable, but it's important that we do it. And we are doing it. It is happening all around us, and that's good. What we want to do is to make sure that we participate in the debate and get our point of view known. 26-2 This particular report is very helpful, and there will be debate on all of the various reports in the chamber that have been placed there. Debate on any one of them can be wide-ranging. In the Liberal caucus, we devoted several hours one day to just dealing with Senate modernization and the report. When the next report comes out, if you'd like to attend and participate in that discussion, we'd be pleased to have you there. 26-3 Senator Cools: I would be happy to do that. 27 Senator Eggleton: The reality is that the Governor General is appointing new people to the Senate on the advice of the Prime Minister, who are not adhering to political parties and who are coming here as non-affiliated, independent folks. It is the attempt of this committee to come to grips with that reality. 28 I want to say thank you for your remarks, Senator Day, particularly giving us a history lesson on not going back to a non-partisan situation that never did exist, as you pointed out. But I'm also happy to hear you talk about being less partisan, your support for that endeavour, and also your mention of the independence of Senate chamber and how we can be sure to keep it separate from the other chamber and the people in the other chamber. Of course, we in the Liberal caucus no longer have to worry about that. I have invited my colleagues over here. I said, "Don't wait till they kick you out; you kick them out." 28-1 Let me talk about the official opposition aspect of what you had to say, and I also want to ask you a question about regional caucuses. 28-2 With respect to official opposition, all senators have a responsibility, would you not agree, for sober second thought. We all have a responsibility to have a critical examination of whatever legislation comes through. I can remember my 11 years as Mayor of Toronto. I always felt opposition on any issue, and yet there were no party formations or no official opposition. I thought that they were all my official opposition at times, to tell you the truth. I did go from one group to another around the floor and fashioned together a coalition on each individual issue. I only say that to demonstrate that there are always going to be different views, including opposition views. 28-3 I think the difficulty with an official opposition is the suggestion that it's sort of an automatic opposition and that it is a knee-jerk opposition: you say it's white, I say it's black; you say yes, I say no. I really don't see the need for that if you have a fairly intelligent group of people, as we do in the Senate, who will give that kind of critical examination. 28-4 If we're going to have a G3, maybe the response is an O3—an opposition three. Maybe that's the kind of thing we need and everybody else is free to listen and work out their own scheme. I'm not convinced about the official opposition, so I would like further comment from you on that. 28-5 Cf this previous comment. n28-5
I also want to talk about this notion of the regional caucuses, because that has come up here and each of the leaders has been asked about it. I thought Senator Massicotte was going to ask about that, because I was just reading excellent piece by him on the subject. 28-6 Senator Harder says he really just intends it for an organizational kind of endeavour; maybe once every term there would be a regional caucus to determine membership on committees. But I think the concern with a lot of us is that it could be become something bigger than that and take over as the main organizing effort instead of parties or groups. And that, in fact, might fly in the face of national interest as we would have certain regional caucuses on an ongoing basis. There's nothing wrong with one occasionally, but I think the concern is that it could become an organizational part of the Senate. 28-7 This remark by Senator Eggleton takes me back to my suggestion that about one third of our senators would be "citizens' representatives." This idea should not be confused with that of senators representing regions—politically. Citizens' representatives continually take the pulse of Canadians directly to gather and maintain a good insight in what Canadians want as well as what Canadians need. They especially are in the forefront of guarding Canadians against the potential ravages of change in our global environment, natural disasters included. They'd also be a wellspring of opposing voices or protests. The guarding itself entails the solving of hideously complex problems, problems, it seems to me, far more complex than those our MDRN committee is currently trying to resolve. It is well to remind ourselves that at the time I am wrting this comment (April 13, 2017), this committee has been at it since February of last year. Such long a gestation make it essential to anticipate problems such as natural disasters, nuclear terrorism, and economic problems—the kind of problems exhibited in Part II of my essay—so as to be, as much as possible, prepared before some ax falls. n28-7
I'd like your further thoughts on what I've said about official opposition as opposed to us all doing sober second thought, and also regional caucuses. 28-8 Senator Day: Thank you, Senator Eggleton. 29 If we had a much larger Senate body, we'd have the likelihood of cross-benchers developing similar to the House of Lords, but thank goodness we don't have that kind of size. Everybody here is a working senator and is expected to be. 29-1 You have answered your own question with respect to regional caucuses. I've read Senator Massicotte's point of view and others, and I agree with the views expressed: There is no sense creating something that's going to exacerbate regional differences. We are senators for all of Canada, and how our regions fit into all of Canada is important. 29-2 Which brings us back to my comment inserted a few paragraphs ago. n29-2
When I first arrived I remember being very impressed by meeting, on committees, senators from all across Canada with diverse backgrounds. That was very refreshing, not having had the opportunity to discuss some of these issues with colleagues from across Canada in this kind of forum. It led me to think that we should have a rule to make sure that we have representation from across Canada on all of our committees, to ensure that different points of view came out. I wouldn't support regional caucuses. 29-3 Once more with feeling: citizens' representatives" for funnelling citizens' voices into the Senate, unfiltered by political interests. n29-3
I wouldn't support formal regional caucuses from a point of view of senators getting together periodically on a regional basis. That already happens informally. It's a natural thing just to talk about some of the issues, like pipelines. Using that example, you'll want to get the Alberta regional caucus on pipelines together with the B.C. group from time to time to talk about differences. Those things are important and they happen. 29-4 As I indicated, regarding the official opposition, I would hope that all senators would express their views. I agree that if we didn't have an official opposition, then we wouldn't have a G3 opposite. That seems to me to be important. 29-5 One of the roles of the official opposition with regard to government legislation is to make sure there is a critic for each particular bill. The critic typically has some role to play in terms of preparing a bill kit to explain to everyone else what is in that legislation. They don't necessarily have to support or be opposed to everything there. 29-6 Like in our court system, you don't just have the prosecutor; you also have the defence attorney. You have both points of view and that leads to the best result. 29-7 If you put all those government resources into the government representatives and then don't have any other organized structure, you may create haphazard situations as to what might happen with respect to opposition. 29-8 I agree with you: I think the way we handled the government-assisted dying legislation was wonderful. I would like to see all of our legislation debated like that. Not all of it is as contentious as that legislation. At the same time, we don't know where the RCMP legislation is now. We keep waiting for it to come back but the government is still considering the amendments we made. They were thoughtful amendments and that's good. There will be other legislation like that. I do not think we are finished yet. 29-9 Senator Tardif: Senator Day, thank you for your presentation, I would like to go back to the topic of the official opposition. 30 You talked about the important role that the official opposition plays in the Senate in the Westminster system. Do you think this organized official opposition could come from a group or caucus that is not tied to a political party? 30-1 Just what is meant by "official" in "official opposition"? Opposing forces bundled bundled into a team to limit the number of opposing voices on the debating floor? With an O3—with whatever available resources— doing/guiding the bundling? n30-1
Senator Day: Yes. I do not think it is necessary to be a member of a political party. This role is usually played by the political party that does not form government, that is, the second most important party represented in the Senate, but that is not the only way of doing it. Senator Eggleton suggested a G3 opposition, for instance. 31 What I would like to see—and I think this is important—is a structure wherein, when the government introduces a bill, someone is prepared to talk about the other side of the coin and the fact that other factors also have to be considered in studying the bill. Once the debate has begun, all senators can take part: senators from one side, senators from the other side, and those from a third side. 31-1 Senator Tardif: In your opinion, the traditional approach is not necessary. 32 Senator Day: No. 33 Senator Tardif: As long as there is an organized official opposition. 34 Senator Day: Exactly. 35 Senator Greene: I would like to pick up on where we are right now following the last couple of questions, particularly with regard to Senator Eggleton's idea about an O3. 36 This idea appeared in a magazine article by Senator Harder last week. One of the things that has impressed me about the independent Liberal caucus and also the independent group is that they have open caucuses. They basically invite everybody to a caucus meeting and to hear debate. On the Conservative side, we're completely closed. Unless you are a member of the caucus, you can never be invited, especially Paul Massicotte. We'd never invite him. 36-1 Senator Massicotte: Don't be so partisan. 37 Senator Greene: But one of the things that troubles me about the official opposition role as we do it on the Conservative side is that we have closed ourselves off from attracting anybody except our own caucus to our positions, whereas the Government Representative in the Senate apparently has a mandate to attract all senators to support his point of view or a bill, no matter if they are in a caucus, independent, are on the Conservative side or whatever. He invites all senators to attend bill briefings et cetera, whereas the official opposition on the Conservative side only invites its own members and never tries to reach out beyond. 38 It seems to me that if we want to balance—and I would—the two roles, if there be a government role and an opposition role—call it official, if you want—that the two roles ought to be the same and equal. They should receive equal resources and have equal powers. So that the official opposition in the Senate could also consist of just three people, with the same mandate to reach out to all senators, who might be in opposition or might not be—that's to be revealed in due course—and that the party they might belong to is completely separate from their roles. 38-1 The party they belong to would have a leader, just like you are among the Liberals, but there would also be an official opposition representative to counterbalance that role on the government side. That way, there will be two rallying points. One point would be in favour of the legislation under review and one would be negative. The resources would be equal. The mandates would be the same. The only thing that would be different would be the ability of the two parties to attract senators from the entire chamber to their position, which would be revealed when there's a vote. 38-2 Can I have your comment on that? 38-3 Senator Day: These are interesting points we may want to consider further in terms of potential unintended consequences. But it sounds quite interesting. 39 I would go further and say that you wouldn't choose the three opposition members necessarily from a political party that is organized within the Senate. Rather, you would have three people the same way that Senator Harder and his group don't have a group of individuals backing them up. What they need to do is to find sponsors. They can't sponsor everything; they need to find sponsors for government bills from the Senate body. 39-1 The opposition's role is to find a critic. Why can't we just have three people who have the same resources and the same type of background as the government three, but they are not part of a larger group to back them up? They are by themselves the same way Senator Harder is. 39-2 Senator Greene: I agree. How they are chosen, though, is important, just as the G3 are chosen by the government and the cabinet. The O3 would have to be chosen by the opposition in the House of Commons, I think. 40 Senator Day: I'm not sure about that. They might be chosen by the Senate body. "We want somebody to help. Every time government legislation comes in, we need to organize an understanding of this legislation that is not necessarily the government's point of view on this." 41 Senator Stewart Olsen: What you're speaking about is a giant debating club, then. I'm not sure that's in the service of the country. 42 Senator Joyal: I listened carefully to the proposal by Senator Greene. I have attended two briefing meetings, one in relation to Bill C-16 and the other in relation to Bill S-4, government legislation. I went to those briefings the same way I would have if they had been called by the related Minister of Justice or Minister of Labour. 43 For a senator to attend a briefing of the Government Representative on the substance of the legislation is not at all the same, in my opinion, as it is to have a meeting of like-minded colleagues on that legislation to exchange our reactions and where our views will coalesce for either supporting it, opposing it or trying to introduce amendments. 43-1 When I attended the two briefing meetings called by Senator Harder, I wasn't under the impression at all I was participating in a caucus. It was more or less as if I had accepted to attend a briefing of a related minister for all senators who want to know more about the government legislation. It doesn't mean I subscribe to the points of view that were presented. As a matter of fact, if I ask a question that has political impact, the officers of the department will be there but won't be able to answer. It's for us in our like-minded group to determine if that political argument needs to be here, needs to be put on the floor of the Senate, needs to be shared or needs to find its way into an amendment to the legislation. Because there is no way that if you attend a government briefing and you test an amendment to the government that it will say, "Yes, your idea is formidable and we are going to amend the legislation." Let's be realistic. 43-2 I made some qualifications to the government caucus. I don't feel that I went to a government caucus. I had belonged to a government caucus before, and that's a different kind of animal. That's why I would separate the two exercises. As much as it is important to attend a government briefing session on a bill to ease your personal study of a bill, because they give you raw information or background information, which I think is fair—it makes my work easier, in a way—that doesn't mean that I commit to support the legislation, not at all. 43-3 What we do now is have a government briefing session. Then, when we go to the chamber and the debate starts once the legislation is introduced, we expect that somebody will be the critic of that bill. The role of the critic is really to try to pinpoint some elements that the government legislation has not addressed or has failed to address, or where improvements or other dimensions are needed to the government legislation that the government has not put on the table. 43-4 To me, sometimes it's much more important to listen to the critics than to the Government Representative, because the critics make the debate, not the government proposal. The government proposal stems from a political party, with its own agenda and partisan political interests. However, the critic's role to come forward and analyze the bill and pinpoint the weaknesses or the other dimension of the bill is the real exercise. That's where the real exercise of democracy started in the chamber. 43-5 Somebody has to be responsible to do that. I totally agree with the approach of mentioned by Senator Greene. Somebody has to have the responsibility to organize that and to invite all senators to come and listen to the arguments that the opposition might want to put on the floor. But that doesn't prevent that once the debate is over and you have a multiplicity of opinions, another aspect of the bill will also be put on the table and we will be in position at the end to judge as a chamber. 43-6 I sincerely think that the debate needs to be structured on a daily basis; otherwise it's just to say, "Well, on an issue, nobody has anything to say," so it dies there on the table. Somebody has to have the role to criticize the meaning and analyze the legislation, pinpoint some aspects to it that are inherent in that legislation. That's really where the sober second thought lies. As much as I am totally open to anyone having a free ride on any legislation, nevertheless, to come to terms on a vote whereby we'll decide if we defeat or amend legislation, that has to be structured in the institutional aspects of the chamber. That has been my point since the beginning when I asked, "How do we structure the debate?" That's the whole issue we are dealing with here in relation to our mandate and where we are at in the second phase of our reflection. 43-7 It is important to understand how much the system allows that free rein of independent views on the floor. It is the concern I have tried to express through the meetings we have had. We are coming to some kind of medium ground in terms of how we could deal with things in the Senate that would make for better debate. That's essentially where the credibility of the Senate lies. 43-8 Senator Day: Absolutely. I agree with everything my colleague Senator Joyal has stated. 44 Mr. Chairman, before you bring down the gavel on me, permit me to thank you and through you all of my honourable colleagues for a very interesting couple of hours. 44-1 The Chair: Thank you, Senator Day. Your presentation was well-received, and provoked a lot of questions and a lot of discussion. Thank you very much. You have obviously put a lot of thought and work into it. 45 The steering committee will meet tomorrow. 45-1 Senator McCoy: I had not heard of that. 46 The Chair: I will come and get you. 47 In any event, next week it looks like we have Senator Mercer and his bill, which is S-213. That is coming to us. Then we have a number of witnesses that we would like to get in in December before we break. The individuals in question are Professor Meg Russell, Lord Lisvane, Professor Phillip Lagassé, and one other, Andrew Heard that has not been confirmed yet. So that's what we would like to get in before Christmas. 47-1 Senator Massicotte: When time permits, I wouldn't mind having a discussion on this committee whether we should have a role in pushing forward all of the motions and our recommendations. We came to a consensus relative to 21 recommendations. What do we do with those? Is there something we should do to push them, incite and motivate our colleagues to accept those? 48 The Chair: That was going to be my next point. I'm not happy with the status of some of them. We don't run the Senate Chamber, but we have a chart of exactly where all of those are. It's one of the items at our steering committee meeting. I want to see these move along. There are three in particular that should be expedited to the extent possible. 49 If someone takes the adjournment, if people are going to speak, speak on them. This committee put a lot of effort into this, so let's get on with them and either approve or disapprove. So we're on that. I've been watching carefully. We have been very patient, but it's time now to take some action. 49-1 Senator Eggleton: Time to push the people that are holding them down and not speaking to them. 50 The Chair: You're absolutely correct. 51 Senator Joyal: On that, Mr. Chairman, what is the strategy for the timing of it all? 52 The Chair: As soon as possible. No one wants to cut off debate. If there are 15 speakers that want to have something to say, let them say it. At the same time, realistically we have to get these things on. 53 There are three recommendations in particular that if they go Rules and Procedures, it's going to take a long time to get them implemented. That's the point of getting them through. The fact that they have been sitting there for quite some time, without a speaker, is a problem. 53-1 Senator McCoy: On recommendations 7 and 8, whichever number in the report that is, our timeline is today. We had said that it should go to Rules and to Internal and be returned to the Senate today. 54 I have an amendment ready to push that date forward. That might be the thing to do. I can't do it because I have already spoken to the motion. I would truly be grateful. Senator Sibbeston has an adjournment on it. I'm not sure he is in the chamber. 54-1 Senator Joyal: He is not in this week. 55 Senator McCoy: He is not in the chamber today. I'm at everybody's disposal here. What would be a sensible thing? 56 Senator Tannas: I'm working with the administration on an amendment specifically around that, but mine is twofold. Number one, we obviously have the date issue. I have had conversations with Senator White about how Rules will actually grapple with this. It makes a lot of sense to also include in the amendment some instruction to administration. In January, while we are on break, have them working on identifying specific changes to the rules, so that when it comes before the Rules Committee, they are not saying, "Well, where do we start?" Let's get the ball rolling so we can deal with it in February. If we can do something in an amendment that actually gets work going while we're gone, I think that's important. 57 So I have an amendment that Michel Patrice is working on to that effect, and I would like to place that. I haven't spoken yet to either the caucus or the committee recommendations. It was my intention to get that. 57-1 Senator McCoy: Can you bring that amendment today? 58 Senator Tannas: I can't. It's not ready yet. He had one more procedure person he needed to talk to. 59 Senator Eggleton: Isn't the recommendation of this committee explicit enough for Rules to follow in recommendations 7, 8 and 21? 60 Senator Tannas: It says we instruct the Rules Committee. If we instruct administration to prepare the scenarios so that the Rules Committee can then examine something, that is really the idea. 61 Senator McCoy: I can't remember if my staff had been in conversations with Till Heyde rather than Michel, or one of the table officers. What I'm trying to remember is whether they told me if the motion fails—because it will be defunct if we don't amend it today—on December 1, you can't pass a motion that says to do it by yesterday. So I think the amendment needs to be put forward today. 62 If you would be good enough to put the amendment forward just on the date, bring another amendment forward later. 62-1 Senator Tannas: Let's get an answer. 63 The Chair: Could we just go in camera for this? Do you agree? 64 Hon. Senators: Agreed. 65 Oh, by golly wolly, those Senate's self-imposed traffic humps! Not much well-integrated thinking, is there? n65
(The committee continued in camera.) 66
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