 CANADA The Special Senate Committee on Senate ModernizationConsideration of methods to make the Senate more effective within the current constitutional framework: Issue 15? 45th Meeting, March 21, 2018 During this session it became evident that a number of committee members were not aware that their deliberations about a report on the Westminster system, which began on December 6, 2017, have been broadcast to the general public. Subsequently, the committee proceeded in camera. This transcript, however, includes the part of the discussions after the broadcast was terminated. The next meeting was held in-camera on April 18, 2018. v.E. n0
The Special Senate Committee on Senate Modernization met this day at 12 p.m. to consider methods to make the Senate more effective within the current constitutional framework (consideration of a draft report). 1 Senator Stephen Greene (Chair) in the chair. 2 The Chair: I'd like to welcome you to the Special Senate Committee on Senate Modernization. I'd like to welcome Senator Pratte, who is replacing Senator Massicotte, and Senator Tkachuk, who is replacing Senator Maltais. 3 Today we are considering an updated draft report on the Westminster system. The report has been revised to reflect input from committee members during our last meeting. I propose we go directly to the amendments made by staff following our last meeting. 3-1 Starting on page 11, if you've got the report in front of you, we have the additions proposed by Senators Bellemare and Massicotte with respect to the appointment process for the House of Lords. You'll notice that in your reports, the yellow markings are the additions. 3-2 Also on that page, page 11, we have an explanatory note suggested by Senator Frum that the prime ministers appoint opposition members in the U.K. 3-3 I just don't see how this information is relevant to the way Canadians govern themseles. It seems to me that the report's chapter about the Westminster system is completely irrelevant to the modernization of our Canadian Senate. But then, it may be useful for our senators to give it thought in the light of Senator Joyal's comment in Par. 4, below. n3-3
Continuing on, on page 14, the additional bullet at line 3 states, "rules and procedures that protect and facilitate opposition." Also on that page, in lines 16 and 27, we have some edits for grammar. 3-4 Transparency of the Committee's proceedings calls for availability to the public of whatever documents are referred to; here that draft report. n3-4
Finally, on page 15, we have from Senator Frum and also, I believe, Senator Wells an amendment at line 3, which places the thoughts and opinions of the report in the context of being subject to the Constitution, which, of course, is fine. 3-5 So I would like to begin by offering opportunities for our two members of steering to say a few words. 3-6 Senator Joyal: I certainly concur with the reference at page 11 on the appointment process at Westminster, because I think it's helpful to understand the kind of evolution that has taken place over there and the way that the Prime Minister exercises his or her prerogative—with respect to Mrs. May—to appoint various groups in the Lords after consultation with the respective parties and the commission that has to vet all those nominations. It is helpful because it has been in place now for a minimum of 10 or 12 years. The system has produced some results. It is helpful for senators to read that to know how the system is flexible and maintains the principle at stake in a renewed shape and form. So I certainly concur with that. 4 In relation to the changes on page 14, line 3 is a reference to the presence of the opposition. I was wondering if it is sufficient, in the context of the discussion we had around the table. 4-1 Meanwhile, I want to refer to an article that Professor Paul Thomas published in the Winnipeg Free Press on March 2 of this year. Professor Thomas might be known to some of you. He is a professor emeritus of political studies from the University of Manitoba and has written extensively about the Senate. His article is entitled "The 'new' Senate can work constructively." I could circulate the article. Professor Thomas has appeared here as a witness a couple of times in the past. I know him personally. I have to declare my interest. He was part of the group of professors that came together to publish the book on protecting Canadian democracy. 4-2 There might be an error in the reference to the article. n4-2
I want to read one sentence of Professor Thomas's article: 4-3 While it is true that a legitimate and effective opposition is central to a healthy parliamentary democracy, there are several types of opposition that already exist in the parliamentary process. 4-4 In other words, Professor Thomas recognized that a legitimate and effective opposition is central to a healthy parliamentary democracy. I think it's a recognition of a fact in the Westminster-type of system of government that we share with some other countries around the world. I was asking myself again: Do we recognize that sufficiently in our text to make sure that we pay due recognition to the situation as it is now and how it could evolve in the future? What is central to me is a healthy parliamentary democracy. It's an effective and legitimate opposition. So it's not something that we do with it ["do away with it?" v.E.] if we have one. It's central to an effective and legitimate parliamentary democracy. 4-5 I want to put that on the table because, as I say, it's not my testimony, and I have not asked Professor Thomas to write this article. He writes what he feels is appropriate to publish, of course. I felt it was an interesting article, and I recommend it to other senators because he comments on how the "new Senate can work constructively." I think that's part of the reflection we have now. That's what I wanted to put on the record. 4-6 The Chair: Senator McInnis, do you have something? 5 Senator McInnis: Nothing profound. It speaks for itself on page 11, after consultation with the opposition leaders. I was wondering if we couldn't adapt that here in this Parliament that there be the opportunity to appoint—I'm not making an amendment or anything; I'm making a comment—to ensure that the opposition benches are bolstered. I didn't put that on the table for a discussion or even argument. That's fine with me, and the rest is equally good. 6 The Chair: Okay. Does anyone else want to make a comment? 7 Senator Wells: You'll recall that at the last meeting that we had, I had a motion on the floor that I withdrew upon request for some rewording that might fit. Following the comments of Senator Joyal, I'd like to propose some additional wording on page 9. This isn't part of any of the recommendations, or conclusions, or anything that would lead us elsewhere, but it is certainly something that we heard from witnesses and from the evidence that we've collected in the various reports that have been tabled at this committee. It references—and it's not going to be a surprise to anyone here—the presence of the official opposition in a well-functioning Westminster system, following, again, what Senator Joyal referenced in his opening comments. 8 I would look, first, colleagues, at line 24, on page 9, after the word "government," to finish that sentence with the following: "and the presence of a recognized opposition in both parliamentary chambers." 8-1 We've heard, colleagues, that that is a fact within our system. 8-2 I do have one other recommendation, but if there was any discussion desired on that, I'd be happy to hear that, or I can continue with my second recommendation. That is, after line 31 on the same page, we add another bullet after line 31 that says, "the recognition of an official opposition whose role is to keep the government in check. This critical component of the Westminster system establishes that a governing group proposes ..." 8-3 Senator Joyal: Could you recite it slowly? 9 Senator Wells: I will. Sorry about that:"the recognition of an official opposition whose role is to keep the government in check. This critical component of the Westminster system establishes that a governing group proposes and a recognized group opposes." 10 Senator McInnis suggested (Par. 6) that the Prime Minister consult the opposition leaders (plural) about Senator appointments. Senator Wells refers to official opposition only. I understand that in the U.K. the P.M. consults all opposition leaders. n10
Colleagues, that's in line with an earlier report that came from the Modernization Committee about a year and a half ago. 10-1 The Chair: Any comments? 11 Senator Eggleton: First, I think the report, as it is, is fine. Second, I would oppose any suggestion that the official opposition is necessary in the upper chamber. The language that's in here now is in fact fairly neutral in terms of official opposition in the upper chamber, but on page 15, there needs to be the facilitation of an effective opposition—facilitate opposition. In the Westminster system as a whole, I think that's fine. In terms of the official opposition, yes, I think it belongs in the lower house, the House of Commons. Any wording that's put in here could be put in to that effect, but I don't think it's necessarily required in terms of the upper chamber. I think we should leave that in the kind of neutral language that is expressed now on page 15. 12 Senator Wells: I wish to respond to that specifically because I assume Senator Eggleton's comment references my recommendation. 13 Colleagues, I'm not putting in an opinion here; I'm putting in a fact. I recognize that Senator Eggleton, as he said, doesn't see the necessity of an official opposition in the upper chamber. I respect that opinion. However, I think in the report, where we're citing evidence and comments from witnesses, we're just citing fact. That's all I'm requesting to add, namely, fact. I'm not having any comment on opinion. That's why I put it in the body of the report, because that's what we heard. I'm not putting it in any conclusions or recommendations or anything that might lead to our opinion. 13-1 The Chair: We don't have official opposition now in the Senate. 14 Senator Wells: Yes, we do. 15 Words, words .... How do we define "official"? n15
Senator Bellemare: I would like to speak briefly on this issue. 16 As Senator Eggleton just mentioned, I share his opinion—even if I do not have voting rights—on the document as it is written and corrected. The fact that we are insisting, in an improper way, in my opinion, on having a structured official opposition, especially as currently stated in the Rules of the Senate, appears to me to go contrary to the spirit of Senate reform and modernization. 16-1 I found in the Rules of the Senate a mention of "Leader of the Opposition, or the leader or facilitator of any other recognized party or recognized parliamentary group." So whence "official"opposition? n16-1
Besides, some countries that describe themselves as inheritors of the Westminster system do not have a senate. Therefore, we have a lot of flexibility in organizing the Upper Chamber, all while respecting the general principles of Westminster. 16-2 Precisely what is meant by the "principles" of Westminster? Wikipedia tells us that "Most of the procedures of the Westminster system originated with the conventions, practices, and precedents of the Parliament of the United Kingdom, which form a part of what is known as the Constitution of the United Kingdom. Unlike the uncodified British constitution, most countries that use the Westminster system have codified the system, at least in part, in a written constitution." See a Wikipedia article specifically contributed by McGill University. n16-2
This is why I would like to talk to you about the French Senate. Obviously, it is not a Westminster system, but its senate operates like the world's 80 senates. In the French Senate, senators are organized by political groups, but there is no official opposition. Still, there is very healthy opposition and criticism towards bills tabled by the government. The senators are well organized in an organization called the Conférence des présidents. These presidents, from different groups, partisan or not—even if there is not a lot of partisanship—still form groups based on political parties. 16-3 Coming back to our document, I believe that it is balanced enough as is. The official structure of the opposition could be debated in due course in the Standing Committee on Rules, Procedures and the Rights of Parliament. Furthermore, a number of witnesses who talked about this document all said that, ultimately, the rule specifying the organization of an official opposition according to very specific parameters was not necessary. 16-4 There you go. 16-5 Senator McCoy: Years and years ago, a law professor taught me that text out of context is pretext. So as much as I appreciated the quotation from Paul Thomas in the article—I haven't seen it—but it seems to me that he said that you could have opposition in many different ways or it can be accomplished in many different ways. If we were to expand on that thought, perhaps I might be persuaded. 17 We're hung up on the word "opposition," and I must say that I'm not in favour of this bullet on page 14, with or without a capital "O," because I think it would be used, by some of us, to support their position that there should be an official opposition and point to this report, saying, "Oh, the committee agreed to it" in times down the road. Of course, this is the very point that this committee is hung up on. 17-1 Yes. Maybe we should put the term "Westminster system" in that old "dustbin of history." Precisely what is meant by the word "system"? What if Canadians decide that we do no longer recognize a King or Queen as our Head of State? (The Parliament of Canada Act allows for the demise of the Crown, demise of the Crown without specifying whether such demise would be temporary or permanently.) n17-1
I come back to the point that why do we need this report? We've had three meetings already; this is the fourth meeting. There are so many pragmatic things that we could be doing that would address the modern workings of this Senate in ways that do not detract from the power and efficacy of all senators, regardless of whether they belong in a political caucus or not, and I think we would be doing Canadians a favour if we got on to that. 17-2 This is maybe the fourth time I have said it at this table since Christmas. I know that that's the point the steering committee, of which I was a member before Christmas, had arrived at. 17-3 I would urge us all to have maybe second, third or fourth sober thought and proceed to a topic that we could come to some consensus on. 17-4 The Chair: You raised some very important issues, for sure. 18 Senator Lankin: I don't want to go over arguments that we've already had and heard around the table. I don't think those will have an impact. I'm fine with a report being issued at this point in time, although I agree with what Senator McCoy has said. Practically we're at this point, and it would be more problematic not to proceed with the report. 19 I don't have a problem with Senator Wells's suggestion with respect to line 21 on page 9. I do not support the bullet point that he would like to add after line 31. I point out, Senator Wells, that the intro to those bullet points says: "Furthermore, with respect to the legislative branch, the Committee believes"—that's an opinion; it's not a fact—"the Committee believes that the following Westminster principles remain strong and central to its function." 19-1 Again: What is meant by "principles"? n19-1
Contrary to what you've said, it would imply a committee consensus that the role of opposition will continue. It may, and in what form hopefully we'll get on to talk about, but I'm disputing the impact of your words, not your commitment to those words. While I would have no problem with the line 21 addition, I cannot support the bullet point addition. 19-2 The Chair: We have no further comments around the table. 20 Senator Frum: I would like to support what Senator McCoy has said, and I say that understanding that she was the one who initiated this report. If it's coming from her, that's really very fair-minded of her. She's speaking to the fact that we have gone around and around this table and we don't agree. 21 Frankly, I was leaning toward accepting this report, but when I hear Senator Lankin's interpretation is that there's a set of opinions expressed here, and they exclude opposition, now I'm more alarmed than I was when I got here. 21-1 Given what you've said, in fact, I would like to accept Senator McCoy's suggestion that we just put this aside and move on to important things like Question Period, for example. 21-2 And so, it would be best to just forget about a report on the Westminster system based, as it is, on verbal quicksand. This then leaves the matter of how to structure (if that is the word) Senate debates. But bearing in mind that one structure does not fit all. For example, if our Senate would include senators pro temp, specialists in their fields and well connected with people practicing finer-grained expertise. Should they be put in a straightjacket of some structure they are uncomfortable with? And how would senators pro temp fit in? For that reason it would be best to consider the thoughts expressed in my senate essay before considering how debates should be moulded. n21-2
Senator Lankin: What about the role of opposition? 22 Senator Tkachuk: What about the role of government? 23 Senator Lankin: Those are the discussions. We've been talking around them, not how you structure it. 24 Senator Tkachuk: Why do we want to tell anyone how to operate? 25 Senator McCoy: Let's get to that discussion. 26 Senator Tkachuk: You have an opposition; they decide how to operate. You have a government; they decide how to operate. Why are we telling people how to operate? That's their business. That's the future senators' business. We're not here only for now; we're here for 150 years from now. 27 If people here shall be so lucky what with global warming, rising sea waters, extinction of species, nuclear threats, robotization and A.I., and who knows what else. n27
Senator Eggleton: That's not what this is about. 28 Senator Tkachuk: It certainly is what it's about. 29 Senator McCoy: Just to piggyback off Senator Tkachuk. He is fond of saying that the Senate has evolved and will evolve into the future, depending on circumstances and individuals at the table. When you look at our history, there is no straight-line development, if you want to put it that way. It's been evolving all along. I don't think I would be so vainglorious, if I can use that word, to say I would be hoping that senators 150 years from now would continue to follow any advice I gave today. 30 I thought I'd settle with your earlier comments in that regard, Senator Tkachuk, not quite that one. 30-1 Senator Stewart Olsen: I am persuaded by the arguments around the table that we put the cart before the horse with this report. I am persuaded that perhaps Senator McCoy has a point. Maybe we should be talking about roles and Question Period and committees and then write up what we've done to modify or flex our Westminster system. But it's our solution; it's not somebody else's solution. 31 I would be willing to support Senator McCoy in saying let's put this aside, and after we've finished accomplishing something, or coming to some consensus on other items, we rewrite it and say this is how this functions in our country. 31-1 The Chair: Any additional comment in response to those ideas? 32 Senator Eggleton: We're suffering from fatigue with this thing. The document itself is just a description of what was told to the committee. There are no recommendations. It's something to refer to in future if we want. It says we're within a Westminster system because it means many different things. If we can't come to a conclusion on the wording, then, yes, let's put it aside. 33 Senator Frum: I've heard two positions. One, that this is not an opinion-based piece; it's just a factual piece. Now I'm hearing that it is a report with opinions in it. It's one or the other. 34 It either contains opinions and recommendations or it doesn't. I think it does, but I don't think there's been consensus on those opinions. Let's talk about what we're talking about head-on. I support that. That's fine. Let's not dance around it; let's attack it. 34-1 Senator Lankin: Let's not dance around it, okay. So we won't dance anymore, because I feel like I've been dancing with you for two years on wanting to have the real conversation. 35 Senator Frum: Sure. 36 Senator Lankin: I think it's an effective delay strategy. 37 Senator Frum: Last meeting I said let's shelve this and get on with it. Senator McCoy has said that for three meetings. Who is delaying this? If we can agree right now to shelve this, let's move on. 38 Senator Lankin: "If we can agree with your opinion, let's move on." That's what it's coming down to every time— 39 Senator Frum: You also said you want to move on. 40 Senator Lankin: I want to get to that discussion. I don't think that not having this report for people who are not on this committee to read—I think it's instructive for other senators. At the very least, I would like it to be accessible by other senators who can see a distillation of all the reports and the work that was done. 41 It might stop others from dancing their ring around the same rosie again. n41
But I don't understand, other than as a strategic approach to this, why you would want to get rid of a report that is just a compilation. Both sides of this are saying, "Well, it can be used for argument in the future in any way." Of course it will be, and I would hope that our speeches to this in the Senate when it is reported out to the Senate would give all the cautions and concerns that senators have about it and have expressed a consensus desire to get on with talking about what those issues are and crafting what the vision could look like for the future. 41-1 I don't see a problem with that, and it feels like this just continues and continues. Every week we come back, it's the same combination of pushing a little further. I get it. I think we've tried to be really accommodating around a lot of points that have been raised. Today, I tried to do that as well. 41-2 I just think that because there is on both sides a sense that someone else is going to up the game on strategy if this report is out there—that is not a good reason for not putting out the results of the compilation of a lot of hours of work on the part of this committee. 41-3 The Chair: Senator Frum, you had your hand up again, and so did Senators Wells and Dean in that order. 42 Senator Frum: I wanted to say that it was your observation, Senator Lankin, that the section Senator Wells wants to amend contains the phrase "the Committee believes." Then you would want to reject the idea of including that we believe in the idea of the recognition of an official opposition, because that's not what the committee believes. That is my problem. If your reason for not allowing that amendment by Senator Wells is because you do not believe there should be an official opposition, and the inclusion of that statement is offensive or contrary to your opinion, then this document takes on more importance than I thought it did. 43 Senator Lankin: If you want to take out the word "opinion," I'm fine with that. I feel we shouldn't be expressing a range of opinions on issues that are in dispute. I don't know that the Royal Prerogative is in dispute. We've never said we have a problem with that. Representative government—there are a number of things that I don't think we have a problem with around the table. 44 I'm not saying whether it exists, but the nature of opposition is something we want to talk about. That's why I would not put it into a sentence that says we believe there is a strong basis for going on, or whatever the words said. I don't have it in front of me right now. If you want to take "opinion" out, fine. I'm pointing out that Senator Wells made the case that this was a fact, and we did put that fact in a number of other parts of the document. You cannot put it as a fact and argue it is a fact if it is in a sentence that is led into with the structure of the committee's opinion. 44-1 Senator Wells: Senator Lankin, I accept your comments fully on the inclusion of the bullet that says "the committee agrees" or suggests that the committee agrees. If we can just add in line 24 on page 9 after the word "government" the following: "and the presence of a recognized opposition in both parliamentary chambers" and leave it at that as a fact, then I would propose that wording. If accepted, I would also propose that we accept the report. You'll recall at our last meeting that I had a motion on the table to shelve the report, pending the agreement on wording. If we can't agree on this wording, then I would try to re-establish that motion to shelve. 45 Senator Tkachuk: I notice that my copy of the report says "Tkachuk," so it obviously means it is a confidential report. 46 The Chair: Yes. 47 Senator Tkachuk: Are we in public? 48 The Chair: Yes. 49 Senator Tkachuk: Then it is not a confidential report. You have a problem here, chair. We're studying a report, and we're not in camera. I might as well have sent this out to The Globe and Mail. 50 I think you should adjourn the meeting, frankly. I think you have a big problem. 50-1 Senator Wells: If I may speak on that, consideration of a draft report is always in camera. 51 Senator Tkachuk: Exactly, but we're not in camera. We're in public, so you have a confidential report that we have made public ourselves. 52 The Chair: When the committee was re-established under my chairmanship, it agreed to hold all of its meetings in public as an example of modernization. 53 Senator Tkachuk: Why was this confidential? Why wouldn't I have been able to discuss it with my colleagues before I got here? 54 The Chair: It's a very good question. 55 Senator Tkachuk: Of course it's a very good question. 56 I'll move to adjourn. I don't think we can do business like this. This is a terrible way to do business. You tell me that I can't tell anybody about it, then you come here and make it public. That's nonsense, chair. 56-1 The Chair: Would anybody else like to speak to this? 57 Senator Tkachuk: A motion of adjournment is not debatable. Have the vote. 58 The Chair: There may be— 59 Senator Tkachuk: The motion of adjournment is not debatable, so have the vote. 60 The Chair: I know. Let's have the vote. Do we agree with the motion or do we not agree with the motion? 61 An Hon. Senator: Agreed. 62 Senator Frum: Agreed. 63 The Chair: All agreed? Should we have a vote of hands? This is for adjournment. 64 Senator Wells: The question has been put by the chair. 65 The Chair: We have a motion on the floor, and that motion is that we adjourn the meeting. 66 Senator Wells: Okay. 67 The Chair: Can we have a vote? All those in favour, raise their hands. 68 All those opposed, raise their hands. 68-1 Abstentions. Is anybody abstaining? 68-2 The motion— 68-3 Senator Bellemare: Can I record that I cannot vote? 69 The Chair: Yes, you cannot vote. 70 The motion has been defeated, 7 to 6. 70-1 Senator Pratte: May I ask Senator Wells to repeat his amended amendment, please? 71 Senator McCoy: In camera? 72 Senator Eggleton: What's the use of moving in camera? If we've already been in a public session, it is already a public document. It may have been a mistake to do it this way. The mistake might have been to call it confidential, or it's a mistake to be in public, but we're staying in public, so it's made. It's too late. 73 Senator Frum: It's not too late. Chair, you sent us this report— 74 Senator McCoy: Are you moving— 75 Senator Frum: I want to stay—someone else can move it. 76 I would like to read something into the record. This report came with a statement: 76-1 The leak of a confidential draft report may ultimately result in an investigation by the Standing Senate Committee on Rules, Procedures and the Rights of Parliament, and subsequent sanctions. You or the persons working for you may not discuss the contents of the draft report with members of the media or general public. 76-2 Et cetera. 76-3 You must ensure the draft report is kept in locked drawer in a cabinet when not in use. 76-4 So who will be held responsible for this so-called mistake? Who will be held accountable? This is not a small matter. 76-5 Senator Dean: I am fully compliant with the requirements that were written in the document, and I suspect that others have been, too. 77 Senator Frum: This report has been leaked. We are in a public meeting. 78 Senator Tkachuk: We are in a public meeting, Senator Dean. Therefore, we leaked the report. We've all done it, including the chair. 79 Senator Frum: Well, the chair should be held responsible because the chair has put this meeting in public when it should not have been. 80 The Chair: It was a decision by the committee to hold all the meetings in public, including meetings considering a draft report. 81 Senator McCoy: I think that mistake has been an honest mistake. I think we all failed to notice that we were in public, on air, when we sat down. So we all share some responsibility in that regard. I'm sure the fact that it was forwarded in this fashion, and if it were not such an unusual case that the committee had pledged to keep all of our meetings public, we might have changed our processes administratively, too. So I'm not in the least bit interested in pursuing any consequences from this honest mistake. But I am interested in not continuing this honest mistake. This meeting is adjourned at the moment. I suggest we reconvene the meeting, and we reconvene— 82 The Chair: The meeting's not adjourned yet. 83 Senator McCoy: Oh, it's not? I will put the motion on the table, in that case, that we move in camera to continue our discussions so that we can cure this honest mistake as swiftly as we discovered it and proceed. 84 The Chair: I second that. 85 Senator Eggleton: Is the fact that this was marked "confidential" a mistake? Maybe the mistake is that this wasn't meant to be marked "confidential," because if this committee previously decided it wanted all its meetings in public, then the usual format of having a draft confidential report wouldn't apply. Maybe the mistake is the printing on here as opposed to the fact that we were in a public session. 86 Senator McCoy: It's an honest mistake. 87 Senator Eggleton: I agree. It's an honest mistake. We're just not sure what the mistake is. 88 Senator McCoy: That doesn't much matter. 89 Senator McInnis: All the discussions we have had on the Westminster system were in public. In the interests of modernization, when you came, Mr. Chair, you stated that you wanted all meetings public. Some are unable to be public, but every aspect, every discussion that we've had on the Westminster system has been in public. Can we strip out now the things that are confidential? I don't think we have to, and I don't think we can. 90 For the life of me, I don't know why now. I understand why Senator Tkachuk pointed out what he did because in fact it is a confidential document. It's marked that way, but perhaps it should not have been. 90-1 I don't see the point of shoving this aside. We've spent a long time on this, and there is no reason why we cannot table the document and move on to some more important things such as practical things in the Senate that are not being done. One is Senator Bellemare's proposal—and I've added to it—with respect to a checklist of legislation when it comes before the Senate. Is it Charter compliant? What are the effects on minorities? What are the effects on the regions? Do we have existing laws in the books? There is a private member's bill currently before the Senate in second reading and the laws already exist on the books. Who checked that? Those are things we should be doing in a practical sense for modernization. I don't think we should throw this document out at all. I think a lot of effort has gone into it. It should be for future reference, and if some things have to be taken out, if they happen to be opinion, was that opinion discussed around this table in the past, in the last several meetings we've had? Let's not hastily do this. 90-2 I do think that we have to deal with it now and get on with some more meaningful things. I have other items that I would like to see the committee deal with that would make the Senate a more practical and more efficient place to operate in. Sometimes I think you make recommendations and no one pays attention. We made a wonderful recommendation here with respect to the Order Paper, and we did a few things, but we didn't do everything we could have done to make it more efficient to read. Those are things we should be dealing with and not squabbling over words or what's opinion and what's not. 90-3 If we have to wait until the next meeting, fine, let's review the document and take the opinions out and see what document we can bring back, but I don't think we should throw our work out that easily. 90-4 Senator Dean: It's pretty consistent with the conclusion of Senator McInnis's advice. 91 We have a document. We had a back and forth at our previous meeting about how concrete the notion of an official opposition should be. A good-faith effort, and I think a successful effort, was made to find balance in the redrafted document. My sense is that what has happened today is we're seeing another Ping-Pong match. We're seeing an effort to again concretize in a more determined way how formal the notion of an official opposition should be. 91-1 I was happy with the redrafted document. I'd support the notion of going back to it and voting on that document even if we need to have a vote before on the proposed amendment. I agree with what most of the other people around this table are saying, namely, let's move on beyond this document and get to the practical modernization discussions and modernization efforts that we can talk about, hopefully find consensus on and implement, so that we are all demonstrating our interest and enthusiasm for an albeit incrementally modernized Senate. 91-2 The Chair: Thank you, Senator Dean. 92 Senator Tkachuk: I don't want to rework a dead horse, but we have investigations in the Senate—we just finished one at Rules—when there are leaked documents. We're treating this as if it has no seriousness whatsoever. I don't think that's right. I think everything that we do sets a precedent for somebody else. When I'm the chair in committees, everything is in public too. So whatever is going to be in the report is usually already public in the sense that witnesses have come forward. But the senators discuss the report in camera only because there may be four or five drafts of a report. It's always different, and then there is only one final report. I have personal experience about this. People used that against me, and that's why I'm very serious about this. 93 This was a report that we were told was confidential. There are rules about that. Then we come here and it's public. So I didn't even discuss it with my staff, but obviously I can discuss it with the rest of Canada, right. 93-1 My second point is—and I was on this committee for two years before I came here to substitute for someone—the reason that I'm suspicious is because the Leader of the Government in the Senate published a paper saying that he wanted to get rid of the official opposition. 93-2 That's why this is so important to us. That's why we can't move forward. Because as long as you don't recognize that fact—because we do, and we don't trust what's going on because of what he did. Because he already tainted the discussion, he said, and he won't retract it. As far as I'm concerned, that's the mission of the government. If that's the mission of the government, I'm not playing ball. I advise my colleagues not to play ball on this because I do not trust what's going on. That's why we cannot move forward. 93-3 If we got rid of that, we'd be able to discuss all kinds of things. I'd love to discuss the committee system and everything else. 93-4 Senator Pratte: I wanted Senator Wells to repeat his amendment so that we can at least understand what we're talking about. 94 Senator Wells: It's line 24 on page 9. 95 Thank you, Senator Pratte. What I'm suggesting, in line 24 after the word "government," is to add, "And the presence of a recognized opposition in both parliamentary chambers." 95-1 There was a fourth bullet in my proposal after line 31. I would be prepared to drop that, respecting Senator Lankin's comments on whether that was fact or opinion. 95-2 Line 24, page 9, after the word "government," to add "And the presence of a recognized opposition in both parliamentary chambers." 95-3 The Chair: Does everyone understand that? 96 Senator McCoy: Let's read the whole sentence out loud. 97 Senator Stewart Olsen: What we're writing on is what is, and it's a fact. 98 Senator Eggleton: It's not required in the Westminster system to have a recognized or official opposition in the other house. In the lower house, yes. 99 Senator Stewart Olsen: No one said that. What they had was Canada's parliamentary system, and the fact is that we have an opposition in the Senate Chamber. 100 Senator Eggleton: We don't necessarily need one. We do have one. 101 Senator Stewart Olsen: That is not what we're saying. We're saying this is the factual document of what is. That's my understanding. 102 Senator McCoy: There are full periods in Canada's history that did not include an opposition in the upper chamber in Canada. If we're talking facts, then we have to talk facts. 103 Senator Stewart Olsen: We have to deal with now. I don't want to deal with 50 years ago. Right now we're writing what we see, and that's all. If you get that, and then you state a fact, there is an opposition here, then we put this aside and let's talk about opposition. 104 Senator McCoy: But you would have to refine the sentence to say, "The current existence." 105 Senator Stewart Olsen: That would be fine. 106 Senator McCoy: That would correct that. 107 Senator Eggleton: Read it in the context of the whole sentence and the paragraph. 108 Senator Wells: In fact, Senator Eggleton, if we read it in the context of the whole paragraph, where it says—and I will include my suggested amendment in what I say. I take Senator McCoy's point directly, and it's a good one: 109 Canada's parliamentary system has always been quite distinct from its Westminster counterparts and has continued to evolve in unique ways. 109-1 I'm going to pause and say this is part of an evolution. 109-2 Here is the sentence: 109-3 However, in the Committee's view it has also always honoured the principles, outlined above, that are inherent to Westminster governments. Indeed, nothing in the evolution of Canada's federal institutions has affected the existence of the Royal Prerogative, the functioning of responsible government, the neutral bureaucracy or the existence of representative government, and the presence of a recognized opposition in both parliamentary chambers. Furthermore, with respect to the legislative branch, the Committee believes that the following key Westminster principles remain strong and central to its functioning. 109-4 And then we have those bullets that were included. 109-5 Senator Eggleton: You're putting into the committee's view a recognized or official opposition in the upper chamber. If you left it to the lower chamber, fine. 110 Senator Wells: Senator, I'm not. We're simply speaking about— 111 Senator Eggleton: In the committee's view, it has always honoured the principles; so you're putting this as part of the principles that are necessary to carry forward that are inherent to Westminster governments. "Indeed, nothing in the evolution . . . ." So you are in fact saying that it is the committee's view that it should continue that way. And he's saying that too. 112 Senator Wells: Now I will tell you what I'm saying. 113 Senator Eggleton: No, that is what the wording is, and he agrees. 114 Senator Wells: What we're speaking about is the Westminster system that has evolved into what it is today. I'm making no forward-looking comments. I'm not giving my opinion or view. Where have we evolved? And from day one there was an official opposition appointed by the Prime Minister, individuals appointed by the Prime Minister. 115 Senator Eggleton: This is the principles of the Westminster system we're talking about. You're trying to categorize it in terms of time frame, but you can't do that. What you have done in the context of this paragraph is to say we should always recognize an official opposition in the upper chamber. 116 Senator Wells: Not at all, Senator Eggleton. I'm saying it has been thus up to now. What happens in the future, let's get on to that discussion. 117 Senator Eggleton: You have to rework the whole paragraph. 118 Senator Wells: I move that we add, on line 24, on page 9, after the word "government," the following: "And the presence of a recognized opposition in both parliamentary chambers." 119 Senator McCoy: What about the word "current"? 120 Senator Wells: I didn't have the word "current," but it is understood as part of the evolution of the Parliament until now. Where do you want the word "current"? 121 Senator McCoy: I would say, "the current presence." 122 Senator Wells: Sure. And "the current presence." 123 Senator McCoy: Nothing in the evolution has affected the existence of the current— 124 Senator Wells: Should I read it again for the record, chair? 125 The Chair: Yes, please. 126 Senator Wells: Line 24 after the word "government" on page 9: "And the current presence of a recognized opposition in both parliamentary chambers." 127 The Chair: Are you making a motion? 128 Senator Wells: That is my motion. 129 The Chair: Can we have discussion about that? 130 Senator Wells: We just had the discussion. 131 The Chair: We've had the discussion for quite a while, actually. 132 Senator Frum: I would like to say that one principle I'm certain of that is part of the Westminster system is that we are a rules-based and laws-based system. We have rules in place. 133 If you want to talk about another lengthy study that went on and on—Senators Joyal and Lankin, you were part of this—at the Rules Committee we had extensive meetings on breach of confidence. I was part of the steering committee, as were you, Senator Lankin. That was a painstaking process led by the much-missed Senator Fraser, and we spent a lot of time talking about the principle of confidentiality and the sanctions process when confidentiality is breached. These are in our Rules, and here we are, we had a vote to ignore our Rules. 133-1 This is a Modernization Committee, but it is not a free-form committee, or a committee that operates outside of the Rules of the Senate. We are currently operating outside the Rules of the Senate at this very moment. We had a vote effectively to ignore the Rules of the Senate. I am extremely uncomfortable and disturbed by that. It is unprecedented, what we are doing now, discussing a draft report in public. I don't care if it was an honest mistake or not; it is wrong. It is prohibited by the Rules, and I cannot continue to participate in the meeting, and I won't, because we are in breach of the Rules, as members of the Rules Committee. I would be surprised if other members of the Rules Committee feel comfortable doing this. We're in breach of the Rules right now. I am going to absent myself from the meeting. Thank you. 133-2 Senator Eggleton: I don't think the evidence necessarily leads in that direction. 134 Senator Tkachuk: That's why we have an investigative process. 135 Senator Eggleton: If this committee made a decision to hold all of its meetings in public, then the mistake is putting the word "confidential" on this, so this is not a confidential document. 136 Senator Tkachuk: It says "confidential." 137 Senator Eggleton: That was a mistake. 138 Senator Frum: It was distributed with instructions. 139 Senator Eggleton: I'm saying that could well be the mistake that was made. 140 Senator Tkachuk: Why don't we investigate with the process of the Rules Committee? Otherwise— 141 The Chair: I'd like to get back to— 142 Senator Tkachuk: —otherwise, chair, this report has no validation whatsoever right now. To me, it doesn't exist. We breached the Rules, and then we're breaching them again. If we're going to discuss a report—you should have asked permission ahead of time of the committee to say that we're going to be in public. We assume, because we know the Rules, that it is private. We find out in the middle of the meeting, "Oh, no, we're not." So we raise the issue, and no one cares. 143 The Chair: It was the decision we made quite some time ago. 144 Senator Tkachuk: No, we didn't make it quite some time ago. 145 Senator Lankin: This is not on the report; this is on the issue of confidentiality. I actually think the case being put bluntly that what we're currently doing is in violation of the Rules, ostensibly on the surface, I think we have to agree with. If there was, as has been portrayed, a mistake in the marking of the document or in an understanding between the motion taken at this committee to be in public and the tabling of this document, we should know that. 146 In all practical effect, I want to say that all of the testimony was in public and all of the discussions that we've had on the various iterations—hold on a second, Senator Tkachuk—of the various iterations of this document have been in public thus far. So I don't think that the fact that we talked about it a little more does irreparable harm to the document, but the process that has been raised is an important one. 146-1 I would recommend that the chair and the steering committee—unfortunately, it's another week here—go away and determine what has happened and bring it back to us. The committee will determine whether it is satisfied with the report and the recommendation from the steering committee. 146-2 But there should be an attempt to, one, determine, and two, correct in a way that is, if necessary, acceptable to the committee. That's what I would recommend at this point. 146-3 Senator Tkachuk: Is that a motion? 147 Senator Lankin: It's a motion to send the issue of the perceived violation of the Rules with the circulation of this document and the meeting being held in public to the steering committee for their review and for them to bring recommendations, if any, back to us next week— also if any action is required, what that action should be. 148 The Chair: Thank you very much for that motion. That's on the floor. Does anybody wish to speak to that? 149 Senator Wells: Yes. Procedurally, I would be happy to withdraw my motion, pending that discussion. If that's a motion, then, for the second meeting in a row, I will withdraw my motion and wait for next week, possibly, to reintroduce it. 150 The Chair: Too bad, because I think your motion had some promise, actually. 151 Senator Wells: I think the most important consideration is the violation of the Rules and our practices. So I would like that to be considered before we move on. 152 If that's the motion on the floor, then I would support that motion. 152-1 The Chair: The motion is on the floor. Everybody understands what it is, I assume. I'm going to call the question. Those who are in favour of the motion, please raise your hands. I think the "ayes" have it. So the committee will not meet next week, but the steering committee will meet next week in this time slot to discuss the report and the ramifications of where we are. 153 (The committee adjourned.) 154
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