MDRN-22

The Special Senate Committee on Senate Modernization

Consideration of methods to make the Senate more effective within the current constitutional framework: Issue 11

33rd Meeting, May 3, 2017
with some "inked-in" comments in part relative to my essay and Brief. v.E.

Witnesses: Prof. Adam Dodek, Faculty of Law of the University of Ottawa, and
Prof. John Whyte, Saskatchewan Institute of Public Policy. 0

The Special Senate Committee on Senate Modernization met this day at 12:02 p.m. for consideration of methods to make the Senate more effective within the current constitutional framework. 1

Senator Thomas J. McInnis (Chair) in the chair. 2

The Chair: Honourable senators, I call this meeting of the Special Senate Committee on Senate Modernization to order. During this phase of its work, the committee is focusing on the role of the Senate in Canadian governance and its relationship with the House of Commons. In particular, we are looking at how the Senate can best complement the House of Commons without either duplicating or overpowering it. 3

Through these meetings, our committee hopes to develop a set of principles or criteria that a modern, independent Senate can apply consistently and transparently in the exercise of its constitutionally mandated role in the legislative process. 3-1

Today, we are pleased to have two constitutional experts as witnesses. 3-2

John Whyte is a senior policy fellow at the Saskatchewan Institute of Public Policy and professor emeritus in both the Faculty of Law at Queen's University and the Faculty of Arts at the University of Regina. He has degrees from Queen's University and Harvard University and an honorary doctorate from York University. 3-3

Professor Whyte began his career in academia at Queen's University's Faculty of Law, eventually serving as dean from 1987 to 1992. Professor Whyte has also worked in government as director of constitutional law in the Saskatchewan Department of the Attorney General from 1979 to 1982, and as Deputy Minister of Justice and Deputy Attorney General of Saskatchewan from 1997 to 2002. 3-4

Professor Whyte has published on diverse subjects, including federalism and the Senate. He was also a witness before the 2006 Special Senate Committee on Reform. 3-5

In addition, we have Adam Dodek. He is a professor in the Common Law Section of the Faculty of Law of the University of Ottawa. He has degrees from Harvard University and the University of Toronto and has clerked at the Supreme Court of Israel, the United States Court of Appeals from the Ninth Circuit, and the Supreme Court of Canada. 3-6

Prior to joining the faculty of the University of Ottawa, Mr. Dodek worked in the Public Law Working Group at Borden Ladner Gervais LLP and as Director of Policy and Chief of Staff for the Attorney General of Ontario. Professor Dodek is the author of two books, The Canadian Constitution and Solicitor-Client Privilege. He has also written extensively on Senate reform and modernization both in academic journals and elsewhere. 3-7

Welcome, gentlemen. Please proceed with your opening comments after which I am certain senators will have questions. 3-8

Adam Dodek, Professor, Faculty of Law, University of Ottawa, as an individual: I thank you, honourable senators, for the invitation to be here today. As you can imagine, it's a great honour for me to be invited to share the stage, as it were, with Professor Whyte who has been an incredible role model as well as a mentor to me in my academic career. To be able to say that on the Hansard record is wonderful. 4

I will make my presentation in English today, but if you have questions in French, I will try to answer them in French. 4-1

My testimony today is presented wholly in my individual capacity and not on behalf of any group or organization. I have submitted a brief, which I believe has been translated into French, and my submissions to this committee consist of four points. 4-2

First, the relationship between the Senate and the House of Commons cannot be divorced from a consideration of the Senate's legitimacy. 4-3

Second, the Senate should impose constraints on its own powers to delay and veto house bills. 4-4

Third, the Senate should scrutinize and divide omnibus bills with greater vigilance. 4-5

Fourth, the Senate should be more assertive in scrutinizing private members' bills as compared with government bills. 4-6

Let me begin where all discussions of any attempts to reform or to modernize the Senate must begin, with the legitimacy of this chamber. Honourable senators, I submit to you that considerations of the proper relationship between the Senate and the House of Commons cannot be divorced from the issue of the Senate's legitimacy. Elsewhere I have argued that the Senate faces a triple deficit: an integrity deficit, a legitimacy deficit and a democratic deficit. The democratic deficit is most obvious and can be dealt with quickly. The Senate is not elected and therefore it is a complementary legislative body rather than a rival to the House of Commons. 4-7

Two other deficits: an ingenuity deficit and a civility deficit. n4-7

Re ingenuity deficit: Our Senate urgently needs a wider cognitive diversity. This means, first of all, that our Senate must be fully cognisant of the difference between identity diversity (example: gender balance) and cognitive diversity (need for wider range of modes of thinking and expertise) n4-7A

Re civility deficit: Two aspects: self-centeredness and common civility. n4-7B

Re self-centeredness: The strife for allocation of resources to individual senators should make way to an allocation of resources to meet the needs of our citizenship in order of ugency. Projects to be undertaken call for teams (currently referred to as committeess) to address highly complex problems thrust upon us by a global environment changing at an accelerating pace. Team projects need be prioritized by urgency of issues involved. This is not to say that projects initiated by individual senators should be ignored. n4-7C

Re common civility: Although I have no doubt that senators as individuals are behaving civilly in an ordinary sense, the Senate as a body falls short. I speak here from personal experience. I have been contributing efforts and personal resources for more than three years without decent recognition. I don't mean public recgnition, I mean private acknowledgement and some information about what use my contributions are made of. Plus, I surmize, that I am considered some village drunk who wonders why everyone else is drunk. I also surmize that a comment I once "inked in" about senators swearing an oath to the Governor General has been subject of merriment around the water-cooler. I know that not all MDRN members subscribe to this; I consider there are a few notable exceptions. But by-and-large, the committee's behaviour might justifiably be perceived as less than honourable, reminiscent of that adage "Don't do to others, etc." n4-7D

Months after writing the previous paragraphs I did receive positive acknoledgements from a number of senators for which I thanked them and do so hereby again. n4-7F

A further small comment, this one concerning transcripts such as these. The names of senators are preceeded by "Senator" whereas the names of professors by "Mr." instead of "Prof." n4-7E

The Supreme Court has recognized in the Senate reform reference that this character of the Senate shapes its relationship with the House of Commons. That character is not going to change in the foreseeable future. However, the other two deficits can be addressed by the Senate, and they also impact on the proper relationship between the Senate and the House of Commons. 4-8

The Senate suffers from an integrity deficit because of the reputation that the Senate has for not being a particularly demanding job and, more importantly, because of recent scandals that are continuation of a history of scandal which the Senate has not taken sufficient steps to address. The Senate suffers from a legitimacy deficit because of the integrity deficit and because a history of patronage appointments. 4-9

To be clear, I do not think that a change in the appointments process initiated by the current government sufficiently addresses the legitimacy deficit. In my opinion, what senators do once they are appointed to this chamber is far more important than how they were appointed to the Senate. 4-10

It is for this reason that I believe the Senate cannot separate the issues of ethics and conflict of interest from the issues being considered by this committee to modernize the Senate. The success or failure of attempts to modernize the Senate will rest on addressing the Senate's legitimacy deficit. To be direct, if the Senate does not deal forcefully and quickly with malfeasance and adopt and enforce the highest standard of ethics, I do not believe that it will ever be able to successfully exercise its functions as a complementary legislative chamber within the Parliament of Canada. 4-11

To this end I was heartened by the report of the Senate ethics committee, which was released yesterday. I note that the deputy chair of this committee, Senator Joyal, is also the deputy chair of the ethics committee. Senator Joyal, I commend you and the fellow members of the ethics committee for your report. I hope it is acted upon speedily by the members of the Senate as a whole because I believe the work of this committee will not be able to progress successfully without speedy and swift action on the ethics front. 4-12

What are some of the measures this committee can recommend? That takes me to my second point: self-imposed legislative limitations. 4-13

In order to exercise its constitutional functions more effectively, the Senate should adopt self-imposed constraints on the exercise of its constitutional powers. As you know, as a matter of pure constitutional law the Senate has virtually the same powers as the House of Commons, with the exception that it cannot introduce money bills. 4-14

I support the adoption of a suspensive veto on the model that exists for the House of Lords in the United Kingdom Parliament and for the Senate under section 47 of the Constitution Act, 1982, respecting constitutional amendments. It is my belief that by circumscribing its own power the Senate will be able to more effectively exercise its constitutional role as a chamber of sober second thought. 4-15

Professor Andrew Heard of Simon Fraser University in British Columbia has argued that a self-limitation on the Senate's powers may ironically result in a more vibrant and effective Senate. 4-16

A suspensive veto would establish a reasonable outer limit for the Senate to delay passage of a bill from the house. The Senate would lose or give up its absolute power to veto, but it would likely gain the power to influence the shape of house bills on a more regular basis. 4-17

I perceive the Senate to be a "Guardian Senate" and as such it should retain its veto power to serve as an "emergency brake." n4-17

My third point is that the Senate should be more assertive in scrutinizing and dividing omnibus bills. This committee identified the problem of omnibus bills in its October 2016 report. I don't need to repeat the problems identified by this committee regarding omnibus bills which are set out in page 27 of that report. 4-18

I wholly endorse the recommendations of this committee that the Senate be more assertive in using its powers to more effective scrutinize omnibus bills. I was surprised and disappointed that the rules committee chose not to act on this committee's recommendation. To my mind that raises two possibilities: either, as the rules committee believes, the Senate has sufficient powers but has not acted upon them over the past 15 years or the rules committee is incorrect and the Senate lacks the effective tools to deal more forcefully with omnibus bills. 4-19

Either way, it shows a disappointing lack of political will and a failure to act in the public interest in curbing what are arguably the most egregious violations of the democratic process in the lower house. 4-20

Obviously! n4-20

Fourth and finally, the Senate should closely scrutinize private members' bills. It should do so in furtherance of its role as protector of minorities and of the rule of law. This is because private members' bills are not subjected to the vigorous process of review, approval, risk analysis, regulatory impact analysis and constitutional analysis to which government bills are subjected. 4-21

The Canadian Bill of Rights requires the minister of justice to review every government bill to determine whether any provision of it is inconsistent with the purposes and provisions of the bill and to report any inconsistency to the House of Commons. The Department of Justice Act imposes a similar obligation on the minister of justice with respect to review of all government bills for inconsistencies with the Charter of Rights and Freedoms. Private members' bills are excluded from this review. 4-22

The Senate should exercise heightened scrutiny with respect to private members' bills for concerns relating to the Charter of Rights and the Canadian Bill of Rights. This is consistent with the Senate's role as a protector of minorities and the rule of law. Private members' bills therefore should be exempt from any suspensive veto adopted by the Senate because they have not been through this vetting process to which government bills are subjected. 4-23

This would also prevent attempts by governments to circumvent the requirements of the Canadian Bill of Rights and the Department of Justice Act by supporting controversial measures contained in private members' bills. 4-24

John Whyte, Senior Policy Fellow, Saskatchewan Institute of Public Policy, as an individual: Like Professor Dodek, I start by noting the great honour it is to be invited to speak to this important committee. It is a privilege, really, to speak to half of the nation's legislative body, or a third of it if you count the GG. It's wonderful to be invited and for you to take on the task of seeing if the legislative work in this nation can be made more effective and better. There is a difference of opinion about the meaning of the ideals of a good state, certainly the ideals under which Canada has always been governed. Its legislative body is a central feature of achieving, I am going to say, this increasingly rare political phenomenon on the globe, the good state. 5

I want to start by talking about the origins of the Senate. The origins of the Senate come out of Charlottetown in Quebec and Westminster where people discussed the legislative branch. Although Canada doesn't enjoy the reputation of having had Alexander Hamilton, John Jay, Madison and Jefferson, the great political theorists of statecraft, we actually had people who read a lot. What they read were John Locke and John Stuart Mill, particulary, and they were filled with wisdom about the legislative chamber. 5-1

Mill took the view that a second legislative chamber was not necessary, strictly speaking. To any legislative body, he said, worth its salt that considers, reconsiders and reconsiders, more is not strictly speaking necessary. Second, Mill was definitely opposed to the idea of another similarly constituted, similarly democratized body in which the same interests would be reflected, and the same pressures, the same temptations to corruption, would be experienced. He wanted a different body. He wanted a body not of second thought but of different thought. He wanted a body of people who had a kind of standing. 5-2

The Senate not as a body of second thought, but of different thought. That entails, it seems to me, that the Senate should not be overpopulated with people having gone through similar social/experiential strata because those people will not by-and-large be people of different modes of thought. n5-2

That's a dynamite term. Those standing things get constructed socially and manipulatively and class-wise so one needs to be careful with it, I know. All through the conferences Mill had his readers speaking of this. I'm going to read from my brief: 5-3

The reason for reviewing Mill's case for an appointed legislative chamber is not to insist that an indispensable source of legislative judgment is in an appointed upper house, nor that such body represents superior wisdom. You know that. It is only to suggest that in considering the structure we have inherited we should get past seeing only objections to this arrangement and recognize the decisional virtues that members of an appointed chamber could bring: the advantages of experience, lived wisdom, impartial thought, and independent decision making. 5-4

If John Stuart Mill (1806–1873) had lived some 150 years later and thereby experienced the much greater impact of science and technology, etc., then he would have expanded on "the advantages of experience," etc. n5-4

It is not likely the founders of Canada fully thought the Senate could ever claim higher legitimacy or superior authority in Canada's legislative process, but it seems likely that they hoped it would be improved through the independence and experience of its members to act both progressively and cautiously to offer a salutatory check on the zeal of democratically elected majorities. "Progressively'' is a big word in Mill, by the way. It's a good word, the right word but doesn't mean necessarily everything you might fear in life. 5-5

Veto power is a salutatory check, isn't it?! n5-5

The fundamental question is: What elements of virtue, intelligence, representativeness and legitimacy should the Senate bring to Canada's legislative process? The answer to this is neither strengthening of political party loyalties or providing a process for elite accommodation. Its best service must surely be, as it was in its inception, to bring differently tempered judgments rooted in public experience and social knowledge to Parliament's role of enacting laws. 5-6

Emphasis: Differently tempered judgements. n5-7

Mill had this idea. Mill was in the 19th century, so his idea was general and academics, if you can believe it, and maybe former ministers. It wasn't as broad as I think we would expect now, but it was based on a kind of state craft or state action experience from which one learns the dangers of precipitousness, passion, easiness and non-complexity, and chooses instead to advise and to hold the House of Commons to careful thought about how to regulate society, first of all, of course, how to understand what it is that is bothering us about current society and how to regulate it. 5-8

There is no doubt, reading the record—and this has been chronicled by Janet Ajzenstat and by a young UBC political science scholar—that this was influential on the people who designed our Constitution. I don't think the chamber of sober second thought is wrong, but it certainly wasn't Mill's term. His terms were experience, balance and judgment. 5-9

Another thing that he said about that Senate is that he viewed it, to use the word progressive again, as inclusive, a way to include people in the legislative process that don't get included through elections. He viewed it as representative, a way to capture interests not well represented in the House of Commons. He viewed it as liberal democratic in that it presented a check on the always potential tyranny of a majoritarian regime, not just in Istanbul but really everywhere. I don't know why I just said Istanbul. I'm just staying away from Washington. It's a legitimate force rising from its knowledge and wisdom. There is some evidence, by the way, that this is exactly what Macdonald and Cartier wanted. They wanted it in its own terms. 5-10

I take it that Mill, as portrayed by Prof. Whyte, would very much have welcomed my essay about the Senate, my observations, my suggestions. n5-10

I notice in your first report that you talk about regional representation a great deal. That record isn't totally borne out. The 24-24-24 is like worrying where judges in the Supreme Court come from. You don't feel as if you own your nation or its central processes when your part of the country doesn't seem to qualify for holding office and power. However, it doesn't mean that the Senate is an instrument of intrastate federalism. It has very little warrant for that, by the way. Provinces would hate it, at least provincial premiers would, and I'll leave it at that. 5-11

My proposal to have some 38 or so senators representing Canadians at large circumvents the 24-24-24--political representation. Emphasizing: a shifting from political representation to social representation. No premier shall be against such a shift; no premier shall deny Canadians social representation. n5-11

Again, I don't think it's wrong to talk about the legitimacy that comes from representation. I don't think it's wrong to talk about the wisdom that origin brings into the legislative process. I don't think these are wrong, but historically it wasn't a powerful thing. It wasn't a powerful thing because both Macdonald and Cartier didn't want a Senate with real intrastate federalism legitimacy. 5-12

Why didn't they want intrastate federalism legitimacy? It was because they really weren't wonderfully powerful federalists. They wanted the House of Commons and the Parliament of Canada generally to not be pulled back by loyalties of origin. 5-13

What does that have to do with anything today? I have just come to where Adam started much more efficiently. It matters who gets appointed. If we paid some attention to Mill, we would work very hard on appointments. We would look for that kind of balance, that kind of experience, that kind of proven wisdom, that kind of representativeness, that kind of inclusion, that kind of commitment to civil liberties and to rights, and that kind of inclusion to stem the ravages of the despotic impulses that exist in legislators, or nearly anyone, and we would look for statespersons of that ilk. 5-14

Maybe we do and maybe we have, but what has gone wrong with the Mill idea? Too many appointments were partisan. When they were partisan then the Senate becomes a site of politics. The least useful role for any senator is to serve as a stalking horse for one of the national political parties. When the Senate becomes a place to score substantively insignificant points against the government party or against opposition parties, Canadians are quick to doubt that the Senate has any value. 5-15

Appointments matter. My friend Adam says yes, appointments matter, but what matters is what senators do with this Senate. I think that's right, the need to do. 5-16

I want to very quickly address some other things. I spent sometime on this little paper which hasn't been distributed but the interpreters have it. It is about the resort to caucuses instead of parties and how important that is for the Senate. Although I think it's wrong to think that parties aren't there. Any prime minister can revert to the non-Justin Trudeau method. I doubt we will make that a constitutional amendment about appointment, although who knows? Nothing is written in stone. Even if prime ministers do revert it doesn't mean they won't be Millsian, but they will nevertheless know who their friends are. It turns out that's what humans know best. 5-17

I'm not suggesting that the caucuses replace all parties or there could be party caucuses, but what I am suggesting is that a good size for a caucus is 12. You say 9; I say 12. There are two reasons. One is that you want to create a strong incentive for people to join together, not to hive off. Fragmentation is a bad feature of a legislative body or political body. Some kind of ideological structure is good and 12 reduces the number of caucuses to 8 or 7 or 6; it depends on how big they get. 5-18

Fragmentation is prevalent throughout our entire governmental structure—departments, agencies, standing committees, etc. I'm not against the divvying up of various task, but the fruits of those tasks should come together in one bowl. n5-18

Re the matter of caucuses, I have to put that subject to the side until the issue of forming teams for addressing complex-problem solving is satisfacorily addressed—ref. my essay. n5-18A

Then it becomes possible to manage them because there can be a management committee of not too many people. You don't want a management committee of a lot of people. Eight is probably more than enough. One needs a management committee because there are assignments, as you know and as you spell out well in report one. I would suggest a higher number. 5-19

Another thing is that one of the great things about democracy is finding common ground. In politics, politicians finding common ground isn't a natural practice without incentives. There are caucuses and the caucuses are funded. You're pretty well ineffective without caucus membership. It's also good to push people into the best caucus they can find. People don't have to find perfection. They just have to find a place where they sometimes get listened to. 5-20

My essay has been available to our senators since early 2015. Wish I had been listened to with an open mind. n5-20

I like the idea of always inducing politicians to work under the framework of conciliation with each other and between caucuses, and so that's why I like the idea of bigger caucuses. I know you have written nine and maybe that's now written in stone and paper, but big is good. 5-21

The next thing I wanted to talk about is what the Senate should do. There are two things, and I'll start with the most irresponsible one or whatever. The Senate should take on constitutional reform. I know you are only one of 11 and 11 isn't the real number anyway. We have indigenous populations and who knows what the reality of their consent is. For sure it's there now, if not in the text. The Senate should start on the second upper house. 5-22

You've already said in your report that getting rid of the property requirement is essential. It was annoying in the Trudeau round of appointments. I know people who bought a house. They're not in the Senate. I can tell you about them because they're not your colleagues now. They bought a house but they didn't get appointed. There were some dire consequences to one in particular. 5-23

It's part of the elite accommodation image the Senate has. The provision in the Constitution that allows the prime minister to appoint extra senators just underscores entirely the Senate is there for manipulation and use and political advantage. It serves no purpose but to make the government's agenda more manipulatively available in the Senate. It's a bad message altogether. 5-24

There should be term limits. I think 12 years. Is it 9 in yours? The 9-year term limit was part of the 2006 Harper reform. The only reason I say 12 rather than 9 is that it's non-renewable. If you go with 9 you cut off a lot of networks, you cut off a lot of ties, and you cut off a lot of life. That's why 75 is good. I know people get to 75 and they do mean to go back to life. It's not that life is over, but the longer you're here the less onerous it is to be here and then go. I think 12 is a bit of a compromise on that. Nine years is enough to pretty much end whatever it is your life was engaged with before but probably too young to say, "I can't do nothing.'' That's a fairly technical point. 5-25

Ideally, senators should retire when their ability to make positive contributions is on the decline. But how to bring this about is a comp,ex problem, one yet to be solved. But it is desirable that an attempt be made to come to grips with it. Maybe the problem could be put in the lap of academe. Might measures of fatty substances in the brain be a route to go? I don't know and I don't like to get into wild speculations, but the search for ways to address the problem ought be one that might find application well beyond sizing up "senatorial fitness" for the job. By the way, mankind made it to the Moon, did it not? n5-25

I was also recommending in my report a suspensive veto. Of course, the problem with a suspensive veto is that it will make the Senate so active, powerful and visible that it will then raise questions of legitimacy again. Diffidence and deference have kept the Senate below the radar a lot. Under a suspensive veto some of the incentive for diffidence and deference will disappear and it will become visible. Maybe that it can be overridden will blunt the program if there is any of that. The good thing about a suspensive veto is the possibilities for conciliation, a great democratic practice. That's the great thing to be said about suspensive veto, not the legitimacy solution so much as the need to come to a conciliatory arrangement with the House of Commons about legislation which the Senate considers to be problematic. 5-26

The last thing I want to talk about briefly is the policy role of the Senate. I know this is a country with many policy centres and policy departments in the government, but policy in this country is situated within the government agenda and it's situated within the agendas of the policy centres. There is not a good policy tradition in the country relating to just listening, asking questions and thinking up inventive answers. 5-27

The Senate can offer diverse, rich, broad policy services to the nation on terms that are more open minded than others. I don't know how reasonable it is, but I think there ought to be a series of policy committees. When senators are appointed they are asked where they would like to go and in due course are assigned. They take on things like justice policy and rights but even things within section 92 matters. 5-28

They take on such things as health. I know everyone is thinking about health, but if you were listening to "The Current'' talk on health this morning you realize how rich health reform needs still are in the nation. Climate change needs to be addressed because it's owned by people and the Senate can make space for those who don't feel they're part of the ownership of a policy. 5-29

Most of all, the Senate should start developing policy on human brokenness, which is rampant and a problem, such as poverty, mental illness, lack of training, criminal records, et cetera. It's a fact of Canadian life that will cost us more money than we have. 5-30

The Senate should adopt an ambitious program of policy inquiry, listening and making recommendations. 5-31

Prof. Whyte is a man after my own heart! n5-31

The Chair: Thank you both very much. It was very interesting testimony. As testament to that fact, I have a long list of questioners. We'll start with the deputy chair, as we always do, Senator Joyal, followed by steering committee member Senator McCoy. 6

Senator Joyal: Welcome. Professor Dodek and Professor Whyte. I want to concentrate my question on your suggestions in relation to the power of the Senate. You propose a suspensive veto, Professor Whyte, but at the same time as you warn us about the despotic impulse of the majority Professor Dodek mentioned the tyranny of a majoritarian regime. You have also referred to the Charter of Rights and Freedoms and the Canadian Bill of Rights in relation to private members' bills. 7

I am of the opinion that the Canadian Parliament, being a parliamentary democracy, has a specific responsibility in relation to the Charter. We cannot trust 100 per cent the statement made by the minister of justice that a bill is kosher, if I may use that expression, Senator Gold, or that a bill is really in sync with the Charter because the Department of Justice never publishes its legal opinion that a bill is compliant with the Charter. The minister comes and says, "Oh, I have received the opinion that the bill is compliant. You know some lawyers argue for and some argue against but I think the bill is compliant. If it is not, one day the court will tell us if the bill is compliant.'' 7-1

If the Senate comes to the conclusion in a majority vote, for instance in the Standing Senate Committee on Legal and Constitutional Affairs, that the bill violates the rights of a minority or violates the Charter, my contention is that it is the role of the Senate to oppose that bill, or at least those sections of the bill, and to amend the bill or suspend those clauses of the bill up to the point where the Canadian courts have pronounced on it. I am not an enthusiastic supporter of the suspensive veto with no qualification. That's my first point. 7-2

The second point about the suspensive veto is equivalent to the use of the right to strike. If you don't have the right to strike, you can bargain as long as you want but at a point in time somebody will have the last word and the last word will be in the hands of the most powerful of the two bargaining parties. If you want to negotiate with the House of Commons on some amendments you have to be able to go on strike, and to go on strike is to vote no. 7-3

I don't mean the Senate should use its capacity to veto a bill on any kind of issue. In the past there were very clear reasons that the Senate vetoed bills on any kinds of issues. I'm looking at my friend Senator Tkachuk. When the Senate vetoed the bill on the Pearson airport that was depriving parties to the contract of the right to sue the government in compensation, in my opinion, the Senate rightly vetoed that bill and the government finally came to terms with the Senate proposal. 7-4

It is an exceptional case, but it is a case that nevertheless should exist because we live in a parliamentary democracy and the rights of citizens mean something. They cannot be under the whim of the despotic impulse of the majority, as you call it, or the despotic partisan impulse led by electoral interest in the other place, or the tyranny of the majoritarian regime of the elected majority will always win. That is not the spirit of the Charter. The spirit of the Charter has changed something in the functioning of the parliamentary institution. 7-5

That's why I would qualify your approach to what you propose as a suspensive veto. In my opinion, a suspensive veto is efficient if you have the capacity to say no. If you don't have the capacity to say no, which you use sparingly and wisely, I think you are just on the calendar of the government two months more before the bill comes into force. The government in the other place works under strict calendar deadlines. They say, "Oh, the bill has to go to the Senate. How long will it take in the Senate? Well, at the most, three months. Thank you, goodbye. We have three months before the bill comes into force.'' 7-6

It seems to me that suspensive veto may be attractive, but in the kind of system in which we work I am not convinced it is the most appropriate use of Senate power. 7-7

Mr. Whyte: You mentioned the Pearson bill. My own favourite is the Profits of Criminal Notoriety Act, which the Commons passed and it came here. You got opinions. Actually, you got an opinion from a lawyer working for Saskatchewan, who later defended the validity of the Saskatchewan Act against Colin Thatcher on dubious bases, I might say. It was like immunity from slander here, I suppose. 8

Senator Joyal: What you say is protected by the privilege, so don't worry. You won't be sued for that. 9

Mr. Whyte: Anyway, the Senate got his advice and other advice and wouldn't proceed on it, because they thought it violated freedom of speech, and it does. That's another fine moment and the act never did proceed. 10

The issue, though, is how troublesome or meddlesome will the Senate be. How much will the Commons be begging to be rid of the troublesome voice of the Senate as it raises problems? Is it willing to meet? Is it willing to be conciliatory about the problems the Senate sees? Is it a good thing for Canada that there is legislation initiated in the House of Commons that is ultimately approved by the House of Commons but is improved by the Senate's standing up for principles? 10-1

Maybe that's dreaming in Technicolor, but your black and white version is less pretty, which is that the House of Commons says, "Well, let's just sit on our hands for three months and they will go away and we'll proceed." 10-2

Yes, that's a problem. I don't have an answer to that. We are guessing about the imperatives that get created with power, as we know. Because we've seen governments in the Commons take power too far in the country, your prediction about the House of Commons is valuable and may be cause for concern and cause for restraint on this idea. 10-3

Mr. Dodek: Let me try to respond quickly and start with the points of absolute agreement. I agree that the Charter of Rights and Freedoms has changed the parliamentary environment but has not perhaps changed it as much as it should have. I agree that the vouching of a minister of justice that a government bill is in compliance with the Charter and the Canadian Bill of Rights is not worth particularly much because of the interpretation given to section 4.1 of the Department of Justice Act by all ministers of justice and attorneys general of Canada since the Charter was enacted in 1982. 11

They have given it such a minimal interpretation as to make the process essentially meaningless. Unfortunately, the House of Commons has deferred to that and not set up any independent mechanism for determining the constitutionality of government bills or any bills introduced in the house. In the absence of that, that also provides an opportunity for this chamber as a complementary chamber to set up a mechanism to invigorate the Senate justice committee to more deeply scrutinize constitutional issues on bills that are sent to it. 11-1

On the issue of the suspensive veto we obviously have different perspectives. I think the Senate would be giving up relatively little in imposing restraint on the time limit in which it could either delay or veto a bill. There are few instances in which the Senate has actually exercised its right to veto a bill from the House of Commons. I think each of those instances creates an opportunity for a clash of legitimacy between the two houses. My perspective is I think it would potentially increase both the efficacy and the legitimacy of the Senate to have a suspensive veto. 11-2

Senator McCoy: I don't know where to start. First, let me say thank you for coming. Those are very interesting perspectives. I am reluctant to address the suggestion around suspensive veto without canvassing the entire array of parliamentary conventions that we have at our disposal and we have regularly used in the last 150 years. I'm not going to go there, but I do want to address the points that Mill made on the democratic check on the tyranny of the majority. I want to bring it into a slightly different focus on not the tyranny of the majority that the House of Commons might impose but on a majority that a single group might impose within the Senate. 12

I find it interesting that our academic observers have not put their minds to this point, although you do seem to be, Professor Whyte, endorsing the idea of having more than just two caucuses in the Senate. Would you be expanding on that to say we should at least have a minimum of three groups, not one of which should have an absolute majority? This would have in some respects a mediating effect on the tyranny of the majority. It would certainly be an incentive for discussions and perhaps negotiations, which then become the conciliative approach that you suggest is a very healthy thing for politicians to have. It would also allow for a greater diversity of views, all of which would be incorporated in the upper chamber? 12-1

Mr. Whyte: When I say "caucuses,'' I actually somehow envision people joining the Senate with a kind of mission. Perhaps one of them might be constitutional self-determination and modernization. "I'm going to be in the Senate. I'm going to see if we can't make the structure of Canadian governments a little more responsive to the changing nature of politics, parties and democracy in the world.'' Others might say, "I really want to be part of a caucus which brings back the value of social democracy, maybe not a particularly virulent form of it, but at least the idea that there is a place for public ownership and public services. That's how I want to orient my work here.'' Others might say, "I want to orient my work toward Canada as a global player. The globe needs Canada's help. We should figure out how to do that without killing ourselves and being ineffective." 13

There would also be caucuses which are Liberal, NDP, Conservative or Green. Maybe especially Green; maybe we need a caucus to say we're dying soon unless we do something. That would have been a good thing to have said quite a bit. When people come to the Senate it would be fine for them to find a group of people who do other things, to do everything they're supposed to but actually focus very much on being present to speak to interests which don't get enough official recognition such as environment and mental health. 13-1

There are too many issues to have a caucus for every issue. You have to find some way of conceptualizing that, but I think that senators should find groups when they join to become an effective voice because there are enough of them, because there are 10 of them or something and they can be relied on to raise that perspective both in policy development processes and in legislative approval. I don't know if that's responsive but I see the caucuses as animating the policy awareness and the policy debate of the Senate. 13-2

Senator McCoy: That's fair enough. I see the direction of your thinking and perhaps I'll pursue my thoughts with you off line, because I think we need more of our intellectuals discussing different types of abusive power that can happen within an institution and how we might mitigate against it. 14

I'm thoroughly delighted to hear you talk about the policy role. This is perhaps boastful of me but I shall say it anyway. I was struck with the same thought when I first arrived here and in fact created a whole section on my website called "Brains Trust,'' because I do believe the Senate has in its history played that very role for Canada. Going forward, we need to be discussing and putting forward possible solutions to the critical issues that face Canada in the 21st century. I certainly endorse that. 14-1

Mr. Whyte: I know the Senate is active in policy. I know that it has committees and it works hard on policy. I'm not saying I've invented some new function for the Senate. I'm trying to expand it. What I worry about in the country is that policy is so driven by government agenda. The policy needs of the nation actually exist outside the government's agenda a lot of times, and the Senate could say there's something missing in the way we're conceiving our challenges. 15

Senator McCoy: That's right. That's what we should be doing. 16

Mr. Dodek: I'm concerned about attempts to try to take the politics out of the Senate or to take the politics out of what is inherently a political institution. I am not the type of person who thinks that political parties or belonging to political parties is bad and that we should scrap political parties in the Senate. 17

You can have a tyranny of the majority through association with political parties. You can have a tyranny of the majority through an association of caucuses. The more and more reforms attempt to create an institution populated by independents, and the more and more they are told that the body is independent, a real tension is created with the constitutional role of the Senate as a complementary legislative chamber. The idea of taking the politics out of the Senate, to me, is one that is highly problematic. 17-1

Senator McCoy: If I may just piggyback on that, I did not refer to political parties. People at this table are bored with my saying I'm a fan of political parties. It's my background. I was talking about the number of caucuses or the number of parliamentary groups of whatever ilk. If I gave you a different impression, I apologize, because I certainly wasn't headed in that direction at all. 18

Senator Eggleton: Picking up on that, I'd be interested in hearing whether you think there should be a caucus called the official opposition. We no longer have a caucus called the government caucus. We have a government representative. It would be interesting to hear how you feel about that. 19

The main thing I want to ask you about or pick up on is the suspensive veto issue. I tend to agree with Senator Joyal on the matters he raises with respect to it, and I want to ask you about an alternative approach instead of a suspensive veto. I think with a suspensive veto you could run the clock and not pay attention to what could be some very sound amendments coming from the Senate. 19-1

There are two pieces of legislation we've dealt with in the past year which perhaps are illustrative. A year ago we had the assisted dying bill. We suggested several amendments, some of which were agreed to by the House of Commons but some of the main amendments, particularly those respecting our view of the constitutional aspect and addressing the Supreme Court decision, were not accepted. They came back with a memo and said they would like us to agree to some limited changes but not the big ones that we had asked for. The Senate decided, perhaps considering it to be a complementary role, to go along with that, and so the Senate did adopt it. 19-2

We dealt with another bill a few months ago respecting the RCMP. I can't remember all the aspects of it. It had to do with a union. We found that to be particularly flawed, so we made numerous amendments and sent it back. They have yet to respond to it. I'm not sure what that's all about. Maybe they have other things that they want to deal with. If we had a six-month suspensive veto, we could be close to six months being up. On that basis they could put it into effect and ignore all the things we sent back to them. 19-3

Wouldn't it be a better solution if we had some sort of a coordinating mechanism, some sort of a committee that attempts to deal with outstanding issues to prevent going back and forth too many times? Perhaps that might be a better solution to a suspensive veto. I'd be interested in hearing your comments about that and throwing in your thoughts about an official opposition caucus. 19-4

Mr. Dodek: Let me speak to the two examples that you gave. First of all, from my perspective as someone observing, studying and writing about the parliamentary process, the assisted dying legislation was a positive example of the two chambers listening to each other and working together. It would be excellent if all bills worked like that, but it is just one example. On the second example of the RCMP, that's still unclear. 20

Your suggestion of having some coordinating body, whether it's a joint committee or a standing committee of both houses, is an excellent suggestion. To the extent that whenever we are able to have joint committees of the two houses, having members from the two houses enriches the parliamentary process and the democratic process. 20-1

As an academic I think that you could play out the assisted dying. The senators chose ultimately to defer to the democratic will of the House of Commons on their decision to accept some amendments from the Senate but reject others. Some senators disagreed with that. 20-2

What would have happened if enough senators stood on principle and felt the bill was still flawed? What would have happened if then the government was out of time with the Supreme Court's ruling? 20-3

That process worked I think because of principle, goodwill and communications between the two houses of Parliament and the government's acceptance and participation in that. I don't think that may always be the case. 20-4

Mr. Whyte: On the first question, yes, of course, there can be a caucus called official opposition. That's the beauty of caucuses. There can be a caucus purpose around which senators gather. It is not established. It is not as if there must be an official opposition caucus, but one would think there often would be much more than there would be a government caucus. The government caucus somehow is a less pressing need than the official opposition caucus is likely to be in a democracy because we honour organized and effective opposition. I hope we do. Yes, there is an official opposition caucus, if people sign up for it. 21

One of the problems is that the House of Commons in these situations is responding to what they think the traffic will bear in the population. My guess is senators give that some respect at the end of the day, if only on the basis that they are not in the business of trying to gauge that accurately. I'm sure senators aren't saying, "I'm totally dumb about that.'' I'm sure they are saying that they have a sense of the public sentiment too. 21-1

The House of Commons has something on the line that you don't. I'm sure that is at work. It would mean that senators would compromise when in a more perfect world or a world of a better understanding of balance it wouldn't happen. It's very democratic when senators defer to the Commons idea that there is too much opposition to go this far with dying or unions. 21-2

It gets complicated. One wonders if an obligation can't be created. Once the Senate has formally informed the Commons that it is not going to pass the bill as it stands, there could be a parliamentary rule that there then must be constituted a Commons/Senate committee to discuss the differences of position and that they must report back to both on a consensus position. 21-3

That's difficult. Perhaps the two sides when they get to this committee won't actually get to a consensus position, but certainly one could write into the rule that they are duty bound to search for that to the highest level they can. It would create a fairly powerful momentum in the Commons. It would not let people wait the Senate out. It would not let the Commons ignore the points made. 21-4

I don't know ultimately how enforceable rules of houses of parliament are. What happens if someone screams emergency, the year is almost up and the Harper government didn't do anything? What happens if we have our back against the wall or something like that? I am making these up, of course. It wouldn't be a bad conference rule. 21-5

Senator Tkachuk: I want to address some of the same issues that Senator Joyal addressed. We come from political backgrounds. In my view bringing that to the Senate should be a positive. No one understands the democratic process more than people who belong to political parties that have knocked on doors in small-town Saskatchewan or in the different suburbs of Montreal or Vancouver and have talked to voters face to face. 22

I want to address the issue of the Senate power which you both raised. Right now it seems we're looking for a way to deal with the fact that some people are trying to eliminate the structure of political parties in the Senate, and so the whole idea of a veto, six months, and all this stuff. There is no one more attuned to our responsibility to elected members than people who belong to political caucuses. 22-1

The last bill that was defeated in 1993 was the Pearson airport bill. With a governing caucus which doesn't exist now, if they want to build that enough they use closure. We have a way to move government bills along without a problem, but at least what closure does is that it forces the party to justify what it's doing and then the people will decide whether that's a good decision, not someone else, in the actual democratic process. 22-2

By eliminating a government caucus you eliminate closure, so now everyone is looking for a way to move legislation along. They are saying, "Well, let's change the law so we can have a six-month veto and then we will get things passed.'' We have a way to move legislation along and always have had. Legislation doesn't die on the Order Paper in the Senate, except for private members' bills. Government bills don't. 22-3

I would like your comments on that, and just go from there. 22-4

Mr. Dodek: I agree with you on the value of political experience. Political experience should not be a requisite for appointment to the Senate and certainly should not be a disqualification. I share some of what I take to be your concerns about an attempt to create a post-political or a post-partisan Senate. 23

In terms of the Senate's power, and being attuned to the democratic will, I spoke a bit about omnibus bills. We can take a look back at how omnibus bills developed into the massive omni-budget bills that exist today. Things that started at least 15 years ago now cover three different governments of two different political persuasions. We have to ask ourselves the democratic question: How did this come to be? Whether it's the House of Commons or the Senate as a complementary chamber of second thought, they cannot scrutinize a bill of several hundred pages, amending sometimes dozens of statutes. How did the House of Commons and the Senate allow this to happen? 23-1

You talk about the last government bill being defeated in 1993. The rise of the most egregious omnibus bills started in my estimation around 2004. There are a number of omnibus bills where the Senate should have said "wait'' or "no.'' Perhaps that would have put the brakes on the process, perhaps not. It certainly would have created tension between the two chambers. That's an area where a suspensive veto could have slowed down the process in the way that Senate and the House of Commons have been utter failures on this. 23-2

To me, there is more opportunity and possibility to protect the democratic process in the Senate on the issue of omnibus bills than in the house. 23-3

Mr. Whyte: First, with a suspensive veto one thing is certain: The Senate will be more politically active, more visible and more engaged in the legislative process. It will not hesitate to refine bills, change bills or purge bills of deeply problematic elements. What will be the result of this action, I don't know, but it will be active. Under a good conciliation model that is probably good for Canada. 24

Second, I certainly am not speaking against government, opposition or party caucuses at all, but there are two things that are happening that have to be taken account of. There is the Justin Trudeau process and we now have senators whose interest in party identification is less or non-existent. There are likely to be more and more and a dominant force. 24-1

You have to construct a participation model in Senate business which allows people to be inside the Senate in all its functions, not just in the chamber but on committees and organizing themselves together to be effective as a group. The Trudeau model is creating an imperative to create a structure for Senate participation, which an exclusively party model doesn't satisfy. 24-2

Third, I don't know whether I'm serious, but political parties are going. Humans are not connecting politically to each other through parties. This would be the rest of the morning if we talked about that phenomenon so I'll quit. 24-3

Senator Tkachuk: I have tons of them, but I understand there are 20 of us here. 25

The Chair: We have time. 26

Senator Tkachuk: I'm trying to be a good soldier. 27

Senator Gold: It's a real pleasure to have you here with us. I have two quick questions: one for Professor Dodek and one for Professor Whyte. 28

For Professor Dodek, would you comment on the use of time limits at various stages of the legislative process, whether it's second reading or within committee? En petits crochets, I tend to share the views already expressed by Senator Joyal and others about veto versus suspensive veto. Nonetheless, as a relative newcomer to the Senate many of our colleagues sometimes get frustrated with the length of time that things take and the lack of debate in real time because things get put off. Do you have any comments about that? 28-1

For Professor Whyte, with regard to partisanship in the Senate, I think both of you made the point that the Senate is complementary to the House of Commons and that whatever else we do we shouldn't be an echo chamber of the electoral partisanship in the House of Commons. That's not what our primary job is. How do you reduce, if not eliminate in the Senate, the temptation or tendency for us to sometimes feel like we're just carrying into the chamber the partisanship of the House of Commons? Is there some way to deinstitutionalize the level of partisanship that doesn't belong in the Senate? 28-2

I'm not talking about political caucuses or any of that, as Senator McCoy properly underlined. 28-3

Mr. Dodek: My answer to your question may go back to your question to Professor Whyte. I have spent much more time looking at and sitting in on debates of the House of Commons than debates of the Senate. My experience for three years listening to and sitting through debates of the Ontario legislature made me deeply sad about our legislative process. Certainly with the Ontario legislature and with the House of Commons, the quality of the debate in my mind was very low and very disappointing. People tended to be reading from script, reading from remarks crafted by others. I don't think that more was better in terms of the lack of time limits at least for the House of Commons and the Ontario legislature. 29

The beauty of time limits, whether it's in court or in class or in a legislative chamber or in a committee, is that it forces people to focus and make their points more succinctly. The danger is trying to steamroll through legislation or particular initiatives. If there is a balance, it can be a good thing. Imposing time limits just to get something done can be a bad thing. How you accomplish that, I don't know. Hopefully Professor Whyte has the answer. 29-1

Senator Tkachuk: You can always go to the Kremlin, Cuba or Venezuela. They don't have any partisanship. There are lots of places where there is no partisanship. 30

Mr. Whyte: I think the partisanship issue is serious. It's wrong to say it's only a function of appointing out of loyalty, party debt or party reward and that strong party involvement leads to partisanship. I think there is some tendency for that and it's not useful to say all that because in any group alliances develop. 31

If you're in the Senate and alliances develop, they will not develop around whether you like Toronto or Montreal. They will develop around who in government and who in opposition you are most aligned with, so you will grow partisan. You will become identified with a certain ideology or a certain view. Even all the Trudeau decenters will locate themselves within positions that have party resonance, for sure. Parties and partisanship will be there. 31-1

What's the answer? If all that is happening in the Senate is that people are acting as stalking horses for the government or for the opposition to score points, the cosmetic answer is that they should stop because nobody is paying attention anyway. I am not saying no one is paying attention to the Senate. No one is paying attention except in a negative attention to that. It's a bad public relations move to connect yourself in a clever way with party loyalty. 31-2

What to do about it more generally? I'm banking on the leavening effect of caucuses that aren't tied to parties and those people making contributions. They will be situated for sure around parties but without the premium of loyalty that could be a model for people talking to the issue, for people exploring, and for people trying to say why it is a bad idea, why it violates the Charter. 31-3

I guess I'm hoping for a leavening of senators who have a passion for some kind of policy integrity. Is the implication that you don't hear? I'm not saying that. I think the Senate is fine. The change that is happening is an international change and a social change. It is actually a great opportunity to bring policy discourse, and I'm going to use the word again, into a more conciliatory frame, possibly. 31-4

Senator McIntyre: Professor Dodek, before I ask you a question, I draw your attention to the last four lines in the second paragraph of page 2 of your submission: 32

To be direct, if the Senate does not deal forcefully and quickly with malfeasance and adopt and enforce the highest standard of ethics, I do not believe that it will ever be able to successfully exercise its functions as a complementary legislative chamber within the Parliament of Canada. 32-1

Ref. n32-1

In the four years I've been in the Senate these four lines are music to my ears. I congratulate you for that, because I wholeheartedly agree with you. 32-2

Your submission consists of four points. In the fourth point you deal with the scrutiny of private members' bills. As you have indicated, private members' bills are not subjected to the same scrutiny as government legislation, mainly because of the Canadian Bill of Rights and the Department of Justice Act. 32-3

There is no question that a senator who wishes to sponsor a bill has his or her work cut out. Under normal circumstances government legislation takes over. The end result is that the private member's bill dies on the Order Paper. Either it dies on the Senate Order Paper or it dies on the House of Commons Order Paper, which brings me to my question. 32-4

How can the Senate work effectively with the House of Commons in its consideration of Senate public bills? Should the Senate treat private member bills differently from government legislation or simply say, "No, it's a private member's bill; I believe in it,'' and force its way through? Could I have your thoughts on that, please? 32-5

Mr. Dodek: As I have said, because a private member's bill hasn't gone through the same vetting process that government bills have or are supposed to go through, then it's an opportunity and I would say a responsibility for the Senate to apply more exacting scrutiny to them. 33

There is a concern or a tension about not wanting, for want of a better word, to kill private members' bills through delay because they are already subject to less priority than government bills. However, effectively we have a system of responsible government where the government is responsible to the House of Commons and the government prepares most legislation. It is the job of the House of Commons to scrutinize, pass and amend that legislation for the complementary role of the Senate. 33-1

We do not have an American congressional system where every senator is a super legislator. That is simply not our system. I am less sympathetic in a sense constitutionally to the idea that we may be delaying and perhaps killing private members' bills through neglect or through more exacting scrutiny. The main job of the House of Commons and Senate is to consider, review, amend, vote on, and in most cases ultimately pass government legislation. Private members' bills are a secondary aspect of that. 33-2

That's not to say that there aren't great ideas, important public policy measures that come out through private members' bills, but that is decidedly a secondary or tertiary function for both houses of Parliament. 33-3

Senator Gagné: Professor Whyte, you mentioned in your presentation that the Senate should strive to become a highly valuable policy engine for Canada. I would like to come back to this policy role. 34

To play this highly valuable policy role, what should we be focusing on? How do we achieve this? Is it a question of rethinking our committee structure and the mandates of those standing committees? Is it a question of investing in quality research or, as you mentioned, should we be investing in research or be guided by the experts through the committees? I would like to hear from you on that. 34-1

Mr. Whyte: In truth, I don't have a good sense of the extent to which the Senate has undertaken an independent policy agenda and ventured out into the policy world. The one example that I know about is the Kirby commission on health care. That was an extremely highly observed Senate-initiated process, perhaps because it chose to lock horns with Romanow, which maybe helped it and probably didn't help Romanow. 35

I actually have that kind of thing in mind. I talk about two different structures, the caucuses being one, and I talk about policy envelopes, which is the word I would use. There are policy envelopes that senators attach themselves to when they become senators. Then they think about what questions need to be addressed. 35-1

I'm envisaging a Senate that is developing an administrative arm of its own on policy, or individual committees developing an administrative arm on its own. Unfortunately, that does take a budget. The thing that needs to happen in policy is listening, and listening doesn't happen in this room. It happens all across the nation and that takes time and money when you should be here doing the legislative thing. 35-2

I really am in favour of the Senate saying, "We should open the doors to people to talk to us about their ideas about what the governments of Canada and the private sector of Canada should be doing about climate. We should be issuing a statement that is based on what we have heard, but based on experts and based on expert analysis.'' I know it's largely a section 92 problem, but we should talk about it and create a place in Canada where the things that are placing Canada in a dire position can be discussed. Maybe there are three things: climate, and I'm going to repeat brokenness, and our capacity to generate a diverse economy. 35-3

Those are just three, but others would have other things. I don't know why the Senate can't make a contribution to Canada by exploring that with people. The very exploration raises the profile of the issue. The very exploration will be deeply annoying to governments, and that's really a plus. 35-4

That would be a number one goal. Can you be annoying to the 11 governments of Canada or the 13? Can you put it in their face that there are important things that need comprehensive thought and approach and that the Senate is where it's happening? This is not with the purpose of dictating former government policy. It is just with the purpose of creating a richer policy environment and not being held hostage to government's own interest and policy? Their own interest and policy are often restricted by the idea of what they can do without getting hurt. 35-5

Senator Forest: Thank you very much for being here at our meeting. I am a new senator who is still "under warranty.'' I was appointed in the context of the new approach, and I am not surprised to see that my colleagues' skills move our work forward. The senators decided to approach the modernization of the Senate with a great deal of seriousness, energy and commitment. We are to give the Senate back credibility, and modernize a very important institution within the Canadian parliamentary system. 36

In my opinion—despite my brief experience—it is clear that the issue is the partisan dynamic that underpins our work. But, when we allude to great achievements when we want to point to the merits of the Senate, often those major decisions were made beyond the realm of partisanship. We set aside our partisan interests, which was a very legitimate thing to do, in favour of the greater interest of Canadians, and when that occurs, the Senate does great things. 36-1

When we examine the legislative environment of the Senate today, we see that it is an environment that was built over the years, both from a legislative and administrative perspective, by taking into account the dynamic of the different caucuses, in particular the caucus of the party in power and the caucus of the opposition. We all share, to varying degrees, the will to renovate this institution, and the modernization of the Senate depends on how we can create a new dynamic. As an example, from the legislative angle and according to your experience, how could we manage the legislative program in this chamber without that partisan dynamic? 36-2

Currently, we work with a government representative who is not the leader of a caucus, but who represents the government and has the responsibility of maintaining a balance between the legislative program of the other place and that of the Senate. In your opinion, how could the Senate evolve toward an effective and credible way of functioning, by transforming this dynamic characterized by the presence of a government representative and a representative of the official opposition? 36-3

Mr. Dodek: That is a very important question, and one which is quite difficult to answer. I believe we are now in a pivotal period, a period of transformation, but we do not yet know what the result will be. It is very difficult to create a transformation plan without having some idea of the result of that plan. We are really in this pivotal period, and in my opinion, it is very difficult to create rules for the management of this House, because the practices adopted by the senators are what will create a new atmosphere in the Senate. You have asked an important question, but I have neither the answer nor the solution. 37

My essay and Bief do define a goal and in so doing outline a route toward that objective which is to be guard in a global environment. I believe that under present circumstances, our Senate should be a "Guardian Senate." n37

Senator Forest: Your thoughts could be summarized in this way: it is not the way in which senators are appointed that is important, but rather what they will do. 38

Mr. Dodek: Yes. 39

Senator Forest: We will have to walk the talk. 40

Mr. Dodek: Yes. 41

Senator Dupuis: My question is addressed first to Professor Whyte, and perhaps afterwards to Professor Dodek. I thank both of you for being here with us. Thank you also, Professor Dodek, for referring us back to the responsibility we have as senators to work on this transformation. I am not certain, in any case, with regard to human activities, that we know what the result will be in the final analysis. 42

Mr. Dodek: You're right. 43

Senator Dupuis: I may be trying to reassure myself, but I'm not convinced that we always see the result we need to achieve very clearly before us. 44

Professor Whyte, I liked the reference you made to nobility on page 4 of your brief, which was to Mr. Mill's reflection on the perspective of the 19th century, and the tolerance for the nobility of that era. 44-1

You spoke of the role of the Senate with regard to the development of public policy, and of a certain lack of reflection or space for reflection on public policy, aside from public policy that is directly related or derived from a government program; is there not also another phenomenon the Senate should direct its attention to? 44-2

You spoke of the 19th century system that led to the current system, according to which we have a government and an opposition, or two very closely interrelated groups, a system that functions well until someone decides to open the door. There is some leeway, in my opinion. We could imagine Bloc Québécois caucuses; this may seem exotic, but we could imagine Bloc senators or NDP senators defending the NDP political platform next to a group of senators advocating for the Liberal or Conservative platform. In other words, in my opinion, the question is somewhat broader than this close interrelation of two parties, in a system which traditionally was conceived and built on the opposition of two parties. 44-3

By the same token, it seems to me that in our society we see an increasing democratic deficit in an electoral system that leads to a government and an official opposition, but leaves a large part of the population by the wayside. This population has become educated and has acquired a certain expertise, and it does not necessarily see itself reflected in the traditional exercise of political power in Canada. 44-4

Do you think, in light of your perspective on the Senate's role, that we should take on the responsibility of developing policy, as it is also the Senate's responsibility to ensure—It is not happenstance that you provide examples like the environment, or mention people grappling with poverty or mental health issues, some very difficult issues within our society. I think that we have to find a new way to bring forward points of view that were not heard in the past, because they were not in the interest of the nobility. 44-5

Mr. Whyte: First of all, I guess I'm going to echo what Professor Dodek said. We are groping our way to a different political reality. It's not just the political reality represented by Trump that people have abandoned party ideology, social democracy and free capital tension. It's a much more personally situated political identity. 45

One's own condition has become part of politics, as opposed to the grand ideas of the state which you vaguely hope are going to meet the needs of your own condition. We've just given up thinking that they're going to meet the needs. In fact, as this month's Foreign Affairs magazine says, liberalism has failed. I hope Foreign Affairs has got it wrong. 45-1

We're groping our way to that and, as Professor Dodek said, we don't know what that means for institutions. There's that phenomenon and as I've said a number of times there is the phenomenon of the Prime Minister Trudeau Senate reform or Senate appointment reform which has precipitated a new condition. 45-2

You mentioned the other political parties that don't get represented: the Bloc, Green and NDP. Maybe before we leap ahead to caucuses around particular interests, we should think about those voices. One part of you would say, "No, it doesn't matter because it's not the centre of the way that policy responses are being developed now.'' 45-3

I don't really want to say that. You're right. There is a legitimacy problem. I know there's diversity in the Senate and now there is even the "un-party'' represented diversity. There is a legitimacy problem when parties that people cared deeply about and support and have views about the future of this nation through them that aren't here, even though what they want to have said could well be said here. I don't know. 45-4

That's a good point. Given the constitutional appointment power and even structured through the new appointment process, I don't know that there's any room for a plan to get to that place. It could happen. There is no indication that the three whose names I've forgotten except for the dean of McGill would start thinking that way. 45-5

Is there a new way of advancing points of view outside of those lost parties or missing parties? Yes, I think there's a new way of advancing them. Unfortunately, in a way, it has become a little more academic and maybe a little less political. The people are yearning to have their interests understood and expressed. Finding a way to have the Senate be a receptacle for the political yearnings of people and to have the Senate find a way to be systematic and rigorous about advancing ideas of government practice or state action looks like an answer to some of the conditions that people are feeling very threatened by. 45-6

That's a vague answer. You hope that the dynamic of society reaches into the dynamic of the Senate. Lo and behold, when you read report one it's there. I don't read enough to know, but Senate report one, which could be interested in a lot of old, boring issues, is talking a bit about the way political expression is forming. 45-7

The Chair: Are you satisfied with those answers? 46

Senator Dupuis: I think it would be rude to insist that Mr. Dodek answer my question, but if he has an answer, I invite him to provide it to us. 47

Mr. Dodek: In my opinion, the Senate's role with respect to policy is not a new one. In the 1960s or 1970s, the Senate already played a very strong political role, and produced several reports on regulations, mental health and the decriminalization of marijuana. This was not a matter of modernization or transformation, as Senator Forest said. The issue is, rather, to act more quickly in the creation of skills and abilities related to the Senate's role in policy matters, such as the creation of new caucuses, as suggested by my colleague, among other things. 48

Senator Tardif: My question is for you, Professor Whyte, and it's in regard to your comments on regional representation. You've indicated that though the purpose of the Senate was not to create interstate federalism. The regional representation of the provinces was important in creating legitimacy as a national body. 49

On the other hand, you said that because of the imbalance of seat distribution the counterproductive effect is a lack of legitimacy. Although some people would advocate for fewer senators and the abolition of the Senate, you're recommending that 35 additional senators be appointed. That's an interesting idea. Would you care to comment on it? 49-1

Mr. Whyte: Yes. In 2006, when I was here, I had a model of 6-6, 4-4, 24-24, 4-4 and 10-10, going east to west. I thought that was getting pretty close to balance. What did it come to? It was around 100; it was a smaller sum. 50

I said 35 because the Senate should be big, and I mean that in both senses. The Senate should be a place where the people of Canada feel that although they're not going to vote for senators it's going to be a place where there is initiative, innovation and listening, a place where the nation's challenges get addressed in a very immediate interface with people. I'd like to have senators out there to do that. 50-1

Maybe this is a silly idea because of the non-election and ultimately people will ask, "Why would you make the Senate big? Why would you initiate legislation?'' The accountability side of Parliament is already weakened by the lack of ministers, unless government representatives are good substitutes. I just don't know. 50-2

The legislative side of the Senate shouldn't be weakened. In my dream the Senate is people who have staff who develop ideas for the nation and advance them. I think a lot of senators is potentially a good investment because if the Senate is seen to be doing things which touch people's lives it will be appreciated. 50-3

Senator McCoy: On a positive note, and to give credit to a political caucus, I want to mention the open caucus. I don't know if you are familiar with it. If not, I would encourage you to become familiar with it. I'm proud of an idea that they generated not that long ago. It was on prisons and the terrible conditions in which so many people are living these days in Canadian prisons. One of our committees seized upon that idea and has undertaken a study. The Senate, as a whole, has given them a reference. 51

Serendipitously, Senator Pate was appointed, and this is one of her major passions; and Senator Bernard was appointed, and this is one of her major passions. That policy development, important questions and putting out suggestions for Canadians to consider on issues that haven't necessarily been picked up directly by a government, is really happening. 51-1

I thought we would end on a positive note and mention some of the less obvious work ways of the Senate that I think would bring joy to your heart. 51-2

The Chair: On behalf of the committee, I thank Professor Dodek and Professor Whyte for your valuable contribution this afternoon. It has been a wonderful and very helpful discussion for us. 52

Honourable senators, I would like to remind you that next Wednesday we shall continue our work with two witnesses, Professor James Kelly from Concordia University and Roberto De Luca from the Canadian Civil Liberties Association. They will focus on the role of the Senate in ensuring Charter compliance. 52-1

We now stand adjourned. 52-2

(The committee adjourned.) 53

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