MDRN-19

The Special Senate Committee on Senate Modernization

Issue 9: Consideration of methods to make the Senate more effective within the current constitutional framework

30th Meeting, March 8, 2017 0

The Special Senate Committee on Senate Modernization, to which was referred Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate), met this day at 12:05 p.m. to give clause-by-clause consideration to the bill. 1

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

The Deputy Chair: Honourable senators, it's my pleasure to open the meeting this afternoon. Of course, the chair of our committee is Senator McInnis, who is absent for this meeting. As deputy chair, I have the responsibility to help the committee to proceed with its agenda. 3

As you've seen in the agenda, we are dealing today with clause-by-clause consideration of Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate). 3-1

We will proceed to clause-by-clause study of Bill S-213. 3-2

Before I ask honourable senators if they want to remain in public or move in camera as it is consideration of a report, I would like to outline the various options open to the members of the committee. 3-3

Bill S-213, introduced by Senator Mercer, was referred to the committee for study. We have an order of reference from the Senate to study that bill and are committing to reporting on Bill S-213. Hence the question: What are the various options in the report in dealing with Bill S-213? 3-4

Honourable senators, there are three options that we could consider in dealing with the bill. The first one is to report the bill without amendment. The second one is to report the bill with amendment. The third option is to recommend that the bill not proceed. 3-5

I want to remind honourable senators that the third option is open when a bill raises constitutional issues. The Legal and Constitutional Affairs Committee has had precedents. I'm looking at Senator McIntyre, especially, and Senator Tkachuk when I say that the Legal and Constitutional Affairs Committee had to deal with Bill S-4, the bill amending the status of the Senate, having senators elected and reducing the terms of senators. The Legal and Constitutional Affairs committee studied that bill at length, heard many witnesses and constitutional experts, and came to the conclusion that there was sufficient constitutional doubt to not proceed with the bill. That was the substance of the report. I have it here and will refer it honourable senators. 3-6

Before we move to clause-by-clause consideration, I ask the honourable senators around the table what their positions and comments are in relation to those three options. 3-7

I want to remind the honourable senators that the Modernization Committee has adopted the sixth report, which deals with a recommendation to the Senate. It states: 3-8

That the Senate direct the Committee on Rules, Procedures and the Rights of Parliament to develop a process within the Rules of the Senate by which senators may express their preference for a Speaker by nominating up to five senators as nominees for consideration by the Prime Minister to recommend to the Governor General for appointment; and 3-9

That this process takes place at the beginning of each Parliament. 3-10

That was the substance of the sixth report, and hence the decision of the Senate to refer Bill S-213 to this committee that deals with the speakership, which is essentially to amend the Constitution Act, 1867 for the senators to elect the Speaker directly. 3-11

I am the hands of the honourable senators to test the water regarding how they feel in relation to those three options, considering the number of witnesses we have heard in relation to the constitutionality of the bill and what the consensus around the table is in relation to Bill S-213. 3-12

Is it the will of the honourable senators that we remain in public or that we move in camera at this stage, as the Rules of the Senate provide? 3-13

Senator Stewart Olsen: I move we stay in public. 4

The Deputy Chair: Thank you, honourable senators. We will continue our discussion in public. 5

Senator Greene:Correct me if I am wrong, but I think our intent as a committee is that the Senate should play a role in the selection of our Speaker. I think that's where the committee is mainly. 6

The Deputy Chair: That's the substance of the sixth report. 7

Senator Greene:That is the substance. 8

The Deputy Chair: I just read it to remind senators. 9

Senator Greene:That's certainly my wish also. 10

If we adopt the report—and I'm not opposed to doing so—I would wish an observation that calls the Senate's attention to our sixth report and states that we prefer that option to the bill. 10-1

There are fewer issues involving our intent, the sixth report, than the bill. We can get to our intent much quicker if we move in that direction rather than the bill. 10-2

Senator Tkachuk: A couple of points. One is on the question of the bill on changing the Senate, which was not brought to the Senate floor. I was not a member of that committee. I would not have supported what I thought was an antidemocratic move because all that was about was making sure that the debate did not continue. They basically killed the bill by doing that. 11

On this particular bill, this issue has been around a long time. As long as I can remember, people have talked about electing the Senate. Although I don't support the bill, I don't even support the Modernization report of which I'm a minority position. 11-1

But I think it's important that this bill be brought to the Senate floor. It provides an opportunity to get all the senators involved, which they should have been involved in that other bill that was buried down by the Legal and Constitutional Affairs Committee. It also should have been brought to the Senate floor for a full debate on whether it was constitutional or not. This is a really important principle, and it would be good for all senators to participate in this debate and not just us. 11-2

I'm going to be very supportive of the bill being on the Senate floor even though I don't support the bill. It should be on the Senate floor, and it's important that we do so. 11-3

The Deputy Chair: I want to add that if we report that the bill not be proceeded with, the report is on the Senate floor and it opens the debate to the bill and the report. 12

Senator Tkachuk: People may want to make amendments to it. 13

The Deputy Chair: Of course. We can make amendments here also. 14

If we recommend that the bill not be proceeded with due to constitutional considerations, that's our report to the Senate. The Senate can dispose of that report the way it sees fit. It doesn't prevent any senators from speaking on the bill— 14-1

Senator Tkachuk: I understand that. 15

The Deputy Chair:—on its objectivity and usefulness. It would be open to the Senate to refuse the report of the committee and to adopt the bill. Even though the report would be to not recommend the bill due to constitutional considerations, that would not prevent the Senate from ruling differently. 16

We've seen reports being set aside by the Senate on a majority vote and adopt different considerations. That has happened in the past. There are precedents that I could quote. 16-1

Senator Tardif: I want to commend the initiative of my honourable colleague Senator Mercer in having put this bill forward. I fully support the idea that the Senate must be more active in selecting its Speaker and there's a role for the Senate to play, and as we modernize the Senate we have to move forward. 17

However, I do believe that serious constitutional issues have been raised by witnesses. We heard from some of the witnesses who said that the bill would eliminate the Governor General's role and thereby the executive role in selecting and removing the Speaker. As well, the bill would reshape the constitutional features of the office of the Speaker itself. 17-1

In view of the testimony put forward by very expert witnesses, I do have constitutional doubts about this bill. In that sense, I feel I cannot support the bill. I certainly welcome the discussion, and the sixth report that the committee has put forward would allow that discussion to move forward. 17-2

As Senator Joyal has indicated, should the bill come back to the Senate saying that the bill is not put forward, it would be on the floor of the Senate for discussion. 17-3

Senator Bellemare: My comments are in keeping with what has been said before, especially by Senator Tardif. Expert witnesses testified, and told us that the bill raises important constitutional considerations. I do nevertheless thank Senator Mercer for having introduced this bill, which allowed us to debate the important Speakership of the Senate. 18

The sixth report, as you outlined it, could allow for debate of this question in committee of the whole. It would be good that everyone knows why the Special Senate Committee on Senate Modernization acted as it did, and we could further explain the constitutional issues this bill raises. 18-1

Senator McIntyre: Mr. Chairman, as you know, I lost my voice. I spoke on your motion last night on the National Portrait Gallery. 19

The Deputy Chair: It was too moving. 20

Senator McIntyre: I was so excited and so enthused about it that I lost my voice. That said, I'll be brief. 21

We have the sixth report and we have Bill S-213. We should bring this matter on the floor of the Senate for full debate. I intend to participate in the debate. 21-1

Senator Stewart Olsen: I'm not a constitutional expert, and I appreciate everyone's role in this, but I like this bill and want to see it come forward onto the floor because nothing ventured, nothing gained. We will never change anything if we stand in a ditch and say, "I don't want to do that because it may be unconstitutional." We had witnesses who came down on both sides. 22

So I think we should proceed with this. I don't think we should try to influence the debate on the floor. I think the report and the bill should come forward for a fulsome debate to show that we really are trying to modernize this place. 22-1

Senator Ringuette: Even though I am not a permanent member of this committee, please be assured that I read with great interest all of the deliberations that are sent to my office by the clerk. 23

First, I would like to point out that had it not been for Senator Mercer and his perseverance in wanting to include the election of our Speaker, I doubt that the Special Senate Committee on Senate Modernization would have focused on that point. I want to congratulate Senator Mercer for his perseverance in wanting to include the election of our Speaker in the modernization process of our institution. I totally agree with those who support the idea that all of the senators must have the opportunity to debate both motions and vote on them in a fully democratic House. 23-1

I think that Senator Mercer's wishes as to the election of our Speaker will soon be granted. There is also the other process, as suggested in the sixth report of the Special Senate Committee on Senate Modernization, which would involve choosing five names to put on a list to be submitted to the Prime Minister, who would then do his homework, in consultation with the Governor General. I maintain that we should refer the bill we have before us, without amendment, so that it can be debated and voted on. 23-2

Senator Dupuis: I totally agree that both options should be sent for discussion, that is to say the report of the committee and the bill that is before us. We have heard the opinions of constitutional experts. I was struck by one thing, however. In the discussions I attended since I became a member of the committee, there was no broad debate on clause 2 of the bill, which bears on the voting mechanism in the Senate that would change radically. For that reason, I think everyone should have the opportunity of taking part in the debate in the Senate. 24

Senator Forest: It seems clear that the bill addresses both the letter and the spirit of the objectives we seek. I am in favour of greater autonomy in the Senate as regards our participation in choosing or electing the Speaker of the Senate. I am not a constitutional expert, but we are studying the bill clause-by-clause, and I must admit that I find clause 1 very problematical. I would agree that we refer both scenarios to the Senate, that is to say the motion included in the sixth report of the Special Senate Committee on Senate Modernization, and the proposal contained in Bill S-213. That would be in keeping with our objective of having the Chamber as a whole involved in the election, or in recommendations. It would be consistent to proceed that way. 25

What has concerned me somewhat since I got here is our habit of postponing points on the agenda. If we want to achieve a certain modernization and make things move forward, some day we are going to have to make decisions and choose some positions. Rome was not built in a day, but at a certain point you have to make a start. If we choose the option of presenting to all of our colleagues in the Chamber one or two scenarios, either that of Bill S-213 or the recommendation in the sixth report, eventually we will make a decision on that matter. However, perhaps I am not yet patient enough, since I have not been in this institution very long, but I find that we cheerfully defer many decisions. 25-1

Senator Gagné: I want to echo the comments made by other senators as to the merits of the bill. I use the word "merits" because it is important to look at the issue from different perspectives. This allows us to broaden the debate on a matter of importance, that of giving ourselves the capacity to choose our Speaker. 26

Having taken part in the debate and heard the witnesses, I have concluded that the bill should be improved or that we should find some other way of taking part in the appointment of our Speaker. I agree with Senator Tkachuk that it is important that this debate be held in the Senate. 26-1

I'd like to add something else. How can we organize the debate around this bill and the report so that it can lead to the topic of the Senate Speakership? I am asking the question. 26-2

The Deputy Chair: Are there any other interventions? 27

I would like to give a summary. There are three options. The first one is that we report the bill without amendment. The second option is that we report the bill with amendment. The third one is that we recommend that the bill not be proceeded with due to constitutional considerations, but that does not prevent the Senate at all from discussing the bill and the constitutional considerations. The Senate can dispose of the report of the committee the way it wants, considering that it already has the motion proposing the sixth report, which deals, of course, with the previous recommendation of this committee. 27-1

Senator Dupuis: I would like some clarification on each of the options. I want to be certain that I understood correctly. If we report the bill without amendments, are we reporting the fact that we did not vote in favour of the bill, but that we are reporting it without amendment? 28

The Deputy Chair: If we report the bill without amendment, I must submit the bill to a clause-by-clause vote. Consequently, if the bill is adopted in that context, it is then referred to the Senate as having been passed by the committee. At that point the bill goes to third reading in the Senate. 29

Senator McCoy: I apologize, but I'm a bit confused. 30

I will say straight out that I think this bill should go back to the Senate for debate. I don't know if anyone has an amendment here. If they do, I would be happy for us to entertain that amendment, vote on it here and then send it back with amendments. But, one way or the other, I believe this bill should be reported back to the Senate with or without amendments from the committee because I agree with those of you who have spoken that all senators should have an opportunity. 30-1

Having said that so you know where I'm coming from, in order to do that, we have to do clause by clause. How do we start this clause-by-clause process? I'm a little confused as to where we are on the agenda for today. 30-2

The Deputy Chair: I'm sorry that you were not there when I made my introductory remarks. 31

Senator McCoy: I was listening next door. 32

The Deputy Chair: I reminded honourable senators that there are three options on the table of the committee. The first one is to report the bill without amendment. If we do that, we have to adopt the bill clause by clause. 33

The second option is to adopt the bill with amendments. The chair calls each clause of the bill, and honourable senators who have amendments can then propose the amendments, and we will vote on them. We then vote on the clauses, and the chair will be instructed to report the bill with the amendments. 33-1

The third option is that on the basis of what we have heard from witnesses in relation to the constitutional doubts that are inherent in that bill, we will not recommend that the bill be proceeded with due to constitutional considerations. 33-2

Senator McCoy: Is that the question you've put to the table, chair? 34

The Deputy Chair: No, that's not the question I have been putting. We have done a tour around the table to have a feeling of where the consensus lies before I push the bill on you and call the first clause. The exchange of views was to try to find a consensus. That's what the chair has done so far. 35

Does that answer your question, senator? 35-1

Senator McCoy: What is the next step, Mr. Chair? 36

The Deputy Chair: The next step is that I tour the table to try to have a consensus emerge from the three options that I have proposed. 37

Senator Greene:I would favour option 1 but with observations, and one of those observations would be the constitutional issues that we are in doubt about. 38

The other one for me is a statement or something to underline the intent of the committee, which is found essentially in Modernization report No. 6. 38-1

With observations like that, I prefer option 1. 38-2

The Deputy Chair: That's a very clear position. 39

Senator Ringuette: Senator Greene has just echoed what I wanted to make sure that we have the option to do if we do clause by clause, and that the ability for this committee to have an observation in our report. I think that would clarify the position of the committee right now. 40

The Deputy Chair: Thank you. 41

Are there other comments? 41-1

Senator Dupuis: Thank you for helping me to understand the process in Senate committee meetings. I would like another clarification, if I may. 42

Is the third option to report on the fact that the bill should not be studied in the Senate? 42-1

The Deputy Chair: No, not at all. 43

Senator Dupuis: So does the third option mean that we have decided to not proceed to clause-by-clause study of the bill in committee for various reasons, such as the comments made by Senator Greene, and other reasons regarding the constitutionality of the bill? Do I understand correctly that that is the third option? 44

The Deputy Chair: Exactly. 45

Senator Dupuis: Perfect, in that case my choice is the third option. 46

The Deputy Chair: Are there any other comments by honourable senators? 47

Senator Forest: We have to be coherent in what we do. In order to be coherent, in my opinion, if clause-by-clause study of Bill S-213 is on the committee's agenda and if we want to draw the attention of the entire Senate to the debate around this bill, we have to adopt it as is, clause-by-clause, because we have to follow our rules. 48

We have to remember—it's a matter of consistency—that the entire Special Senate Committee on Senate Modernization did adopt the sixth report that outlined another avenue to take us toward greater autonomy in the appointment of the Speaker of the Senate. 48-1

In summary, if we don't want to be inconsistent, the committee should do the clause-by-clause study of the bill as it stands and report it to the Senate. It is relevant in light of certain comments that were made, and certain concerns, and we should not forget that we did, prior to this, analyze and discuss and adopt the sixth report, which suggested another avenue. 48-2

In my opinion, we have to submit this to the entire Senate and put forward the fact that the ultimate objective is to obtain greater autonomy in electing the Speaker of the Senate. In that spirit, we have the sixth report of the Special Committee, and on the other hand, we have Bill S-213 which was presented by one of our eminent colleagues. So we have those two choices. 48-3

Senator Bellemare: I'm starting to be a bit confused by our options. After having heard the arguments put forward today, I want to thank Senator Mercer for all of the work he has done on this issue. 49

That said, we did work previously in committee and we produced our sixth report. This work was done, it must be acknowledged, under the constraint that our recommendations should not lead to constitutional change. That was the mandate of our committee, and we even wondered why this study had been referred to the committee, since we are supposed to examine this in light of the current constitutional context. 49-1

I am very much in favour of Bill S-213, but at the same time I feel uncomfortable with studying it clause-by-clause to then present it to the Senate for debate. I feel uncomfortable with doing that. We have to find a way of submitting the bill to the entire Senate while highlighting all of the work that has been done by Senator Mercer, and say that we generally support the broad principles, but that in studying the clauses in detail, we did work that led us to the sixth report of the committee. 49-2

In that context, we are referring the bill to the entire Senate and reporting on what we heard from the experts who came here to provide their opinion. I am leaning toward the third option. 49-3

Senator McCoy: I'm somewhat on the same point but maybe come to a defendant conclusion. Technically, this is what has happened. We had an order of reference from the Senate of Canada, the full Senate, which created this special committee and gave us a mandate to come back with recommendations for modernizing the Senate without any changes to the existing Constitution. We have followed that mandate, and we put out report No. 1. 50

This committee received a totally separate order of reference, and that was to study Bill S-213. That's what we're engaged in here today. Technically, there is no inconsistency in what we are doing. 50-1

Who knows what we would have said on our first report about the speakership if we hadn't been constrained by the order of reference that the Senate has given us as to staying within the existing Constitution, and, in an abundance of caution, we did. So I don't see that there is a conflict. It is two different pathways. 50-2

Typically, we rarely kill bills at committee. I think there's a sufficiently broad interest in this subject that I would like to see all 100 senators—there are five vacancies at the moment—have a chance to listen to a broader discussion on these subjects. The way to do that is to go through clause by clause, no amendments, report back, and that gets us to third reading of this bill which allows a fulsome debate on the floor of the Senate. 50-3

Senator Cormier: First, I want to thank you for your welcome. I am replacing Senator Dean today. I would like to know how the debate will unfold in the Senate if we adopt the bill clause-by-clause, and if we send it without doing the clause-by-clause study. How will the debate in the Senate take place? 51

Deputy Chair: The debate is open to all of the senators who wish to debate the bill as a whole, or any aspect of it. Individual senators may propose an amendment if they have a problem with a clause. They can also add something to the bill to make it more understandable. There are no limits placed on the debate. 52

Once the committee has reported it, the Senate proceeds as it sees fit. Consequently, the subject of the report, which was Bill S-213, will also be submitted to the Senate. The senators will intervene according to what seems pertinent to them. We cannot in any way tell senators not to debate the text of Bill S-213 if the committee points out in its report that it cannot pass it for constitutional reasons. The Senate may arrive at quite another majority decision. 52-1

Senator Cormier: Thank you for those clarifications, Mr. Deputy Chair. 53

Senator Bellemare: I have a question with regard to what I just heard, the expression "kill the bill". That sounds pretty extreme. No one intends to "kill the bill". If we have to do the clause-by-clause study in order not to "kill" it, we will do so, but there is another avenue which is to submit it to the entire Senate so that it can be debated—that is how I understood it. 54

Senator Cormier: That is why I was proposing that. 55

Senator Bellemare: What I understand is that we would like to see it debated in the Senate without rejecting it nor voting it through. That seems to be the position. However, we don't want to "kill" it. 56

The Deputy Chair: No, I think there's no intention of preventing the Senate from debating the bill on the basis of the committee's report. The Senate may in all freedom dispose of the committee's report and reopen the debate at all levels. There is no doubt about that. 57

Senator Tkachuk: I say we go to clause by clause and observations and get this show on the road. 58

The Deputy Chair: It is moved by Senator Tkachuk that this committee move to clause-by-clause consideration of Bill S-213. 59

Is it agreed honourable senators? 59-1

Hon. Senators: Agreed. 60

The Deputy Chair: Is it agreed that the title stand postponed? 61

Hon. Senators: Agreed. 62

The Deputy Chair: Shall clause 1 carry? 63

Hon. Senators: Agreed. 64

The Deputy Chair: Shall clause 2 carry? 65

Hon. Senators: Agreed. 66

The Deputy Chair: Shall clause 3 carry? 67

Hon. Senators: Agreed. 68

The Deputy Chair: Shall clause 4 carry? 69

Hon. Senators: Agreed. 70

The Deputy Chair: Shall clause 5 carry? 71

Hon. Senators: Agreed. 72

The Deputy Chair: Shall the title carry? 73

Hon. Senators: Agreed. 74

The Deputy Chair: Shall the bill carry? 75

Some Hon. Senators: Agreed. 76

Some Hon. Senators: On division. 77

The Deputy Chair: On division. 78

I want to register my vote. I would like that the minutes reflect that I'm opposed, personally. I said it, honourable senators, after you all voted. 78-1

Senator Tkachuk: So you're on division? 79

The Deputy Chair: On division. 80

An Hon. Senator: I voted on division as well. 81

The Deputy Chair: Does the committee wish to consider appending observations to the report? 82

Hon. Senators: Agreed. 83

The Deputy Chair: I'm open to suggestions for the observations. 84

Senator Greene:I have two. One is that we have a statement—I'm not going to write it—which expresses our interest and doubt about the constitutionality of the bill. The second is to remind the Senate about the existence of our Modernization report No. 6, which outlines the intent we have that senators participate in the selection of a Speaker. 85

Senator Tkachuk: I would like to add a third. 86

The Deputy Chair: I have to recognize you, Senator Tkachuk, for the purposes of the minutes of the committee so your intervention appears under your name. 87

Yes, Senator Tkachuk? 87-1

Senator Tkachuk: We should make note that we're all in agreement that this be debated by the full Senate and that our support does not mean that we necessarily approve that it be voted on by a majority in the Senate but that it be debated in the Senate. 88

The Deputy Chair: It will be noted. Mr. Spano from the Library of Parliament has taken note of the comments of Senator Tkachuk. 89

Senator Ringuette: I would like to second the three comments that have been made. 90

The Deputy Chair: I understand that there's consensus around the table on those observations. 91

Senator Dupuis: I would like you to repeat the third option. If the text of the bill is debated in the Senate, that does not mean that we agree with the content of the bill. 92

Senator Tkachuk: Exactly. 93

The Deputy Chair: That's essentially what Senator Tkachuk has been stating. 94

Senator Mercer: I would like to thank everyone for their participation in the debate. 95

The Deputy Chair: I have not been authorized to report the bill, so if you want to wait until I put that question to the committee, it will be more fair, Senator Mercer. 96

Are there any other observations before I move the report? 96-1

Senator Gagné: May we add a comment on the organization of the debate concerning the appointment? To follow up on what Senator Greene said, we have a comment with regard to the bill and the sixth report. How can we organize the debate around the same topic? 97

The Deputy Chair: As we say in legal language, that might be ultra petita, meaning it was beyond what we have been asked by the Senate to report. 98

Once the bill is on the floor of the Senate, the Senate can dispose of the bill any way it wants, and any senator can stand up and propose a way to organize the debates so there is a different way of proceeding with this bill than usual. At this stage, I think it would be over our responsibility to recommend how to organize the debate in the chamber. 98-1

Are there any other comments? 98-2

Can I have a motion to instruct the steering committee to prepare the observations on the basis of the three points proposed by the senators so that the chair will be in a position to report? 98-3

So moved by Senator McIntyre and supported by Senator Forest. 98-4

Is it agreed that I report the bill to the Senate? 98-5

Hon. Senators: Agreed. 99

The Deputy Chair: Thank you, honourable senators. 100

I now recognize Senator Mercer. 100-1

Senator Mercer: Colleagues, I would like to thank all of you for your participation in the debate. I look forward to the debate on the floor of the chamber. 101

This is an important bill. I'm sure that the media will say it's "inside baseball" because it's us talking about ourselves. The restraint put on this committee by the chamber of excluding a look at the Constitution in our deliberations initially, I think this is an opportunity for us to get around that restriction, and I won't have the debate again when it comes back to the chamber. 101-1

I really appreciate the sincerity and the frankness of the debate, and I look forward to an even livelier one at third reading. 101-2

The Deputy Chair: The clerk drew my attention to something. There is a will that the report be tabled as soon as possible, and since Senator McInnis is absent and has not participated in the exchange we have had this morning, can I ask the Tory senators to identify which senator we could invite to be temporarily part of the steering committee to vet the observations of the text to be submitted. I'm looking at Senator Greene. I don't want to identify the Tory senators. 102

Senator Greene:I would be delighted, if you wish. 103

Senator McCoy: We can also share a draft with Senator Tkachuk before we finalize it, to make sure we caught the essence of his remarks as well. 104

The Deputy Chair: There is no problem with that. 105

Thank you, honourable senators, for the suggestions and the concurrence. 105-1

(The committee adjourned.) 106

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