 CANADA The Special Senate Committee on Senate ModernizationConsideration of methods to make the Senate more effective within the current constitutional framework: Issue 2 5th Meeting, April 13, 2016 Witnesses: Prof. Errol Mendes, University of Ottawa The Special Senate Committee on Senate Modernization met this day at 12 p.m. for the consideration of methods to make the Senate more effective within the current constitutional framework. 1 Senator Tom McInnis (Chair) in the chair. 2 The Chair: On January 28, 2015, the Faculty of Law of the University of Ottawa hosted a symposium on Senate renewal, which was co-chaired by our colleague and deputy chair, Senator Joyal, and Professor Errol Mendes. 3 During the conference, five notable university researchers made presentations. We have already heard from one of them, Professor David Smith, at a previous meeting. Now we are most fortunate to hear from the remainder of this distinguished group. 3-1 I would like to introduce our panel for today: Errol Mendes, Professor, Faculty of Law, at the University of Ottawa; Donald Desserud, Professor, Department of Political Science, Faculty of Law, University of Prince Edward Island; Stéphane Beaulac, Professor, Faculty of Law, University of Montreal; and Paul Thomas, Professor Emeritus, University of Manitoba, by video conference from Winnipeg. 3-2 In case of any technical difficulties, I would like to begin with Professor Thomas from Winnipeg. Afterward, we will hear from Professors Mendes, Beaulac and Desserud. After the presentations, I am certain that the senators will have plenty of questions. 3-3 Please proceed, Mr. Thomas. 3-4 Paul Thomas, Professor Emeritus, University of Manitoba, as an individual: Thank you very much, and thank you to the committee for this opportunity to present my perspectives on the issue of Senate modernization. 4 As mentioned, I produced a paper for the earlier conference. For this occasion, to prepare my thoughts, I wrote a 28-page submission which I believe has been translated and circulated. I promised your crackerjack clerk of the committee that I would stay within my 10 minutes, so I won't read all 28 pages. I have a written text for my opening remarks, and I will stick closely to that. 4-1 My main argument is that the Senate must change, and the direction of that change involves transforming itself from a house of political parties into a house of review. At the centre of this transformation is an implicit political bargain. In other words, Senate modernization is primarily a political process. 4-2 One half of that political bargain involves the Senate accepting that beyond a certain point, it will not regularly use its undoubted constitutional authority to seek to defeat, delay or modify in fundamental ways legislation which was part of the mandate of the governing party and which has already been passed by the House of Commons. 4-3 The second half of the political bargain involves an acceptance by the government that the Senate, particularly its committees, will be granted more freedom and support to conduct inquiries into the impacts of past legislation and how well that legislation is being administered by government departments and agencies. 4-4 My essay is proposing an expansion of the Senate's investigative role to an investigative, anticipating, and critical problem-solving role as being in the best interest of Canadians. n4-4
As a house of review, the future Senate would stage very few direct confrontations over current bills and instead would concentrate more on having indirect, longer term influence over policy-thinking and the performance of government. 4-5 Therefore, having ended the suspense by telling you my main argument, let me summarize some of the points that appear in my submission. 4-6 The submission begins with the declaration—which I make without much elaboration—of eight points that provide what I see as a foundation for any interpretation of a realistic role for a future Senate. I would summarize those points by saying first that the Senate is a distinctive, legitimate component of the constitutional order; second, that it performs a more useful role in the national parliamentary process than its many critics recognize; and third, that by treating the Senate as a homogenous, uniform institution, those same critics tend to ignore the diversity of the Senate membership and the diversity of the activities of the Senate. 4-7 The submission then moves on to discuss the concept of modernization in theory and in practice. In that discussion, I make a distinction between past attempts to reform the Senate and present efforts to modernize the institution. 4-8 Reform, I suggest, was principally about increasing the effectiveness of the Senate by granting it more legitimacy and greater powers. In contrast, modernization is mainly about making the Senate more efficient in performing its roles of examining bills, conducting scrutiny activities and providing advice to government. Modernization is not so much about new powers but rather about the more creative and effective use of existing powers. 4-9 Reform, modernization, whatever; my essay puts an emphasis on providing advice to the federal government (as well as lower-level governments) based on best available information and insights. n4-9
Now, I recognize that the equation of reform with effectiveness and modernization with efficiency is somewhat simplistic and overdrawn. I use it, however, to draw attention to how the prevailing balance of power between the executive and legislative parts of government will shape the future role of the Senate. That executive legislative balance could change, of course, but no government will create so powerful a Senate that it becomes a serious roadblock in the parliamentary process. 4-10 My essay does not look for such a balance. It advocates effectiveness primarily. It does comment on lack of effciency, but having never been on the Senate floor, I am hard put to make recommendations on that aspect (other than efficiencies gained by cooperative authoring and such). But I am confident that a qualified observer can come up with some excellent suggestions. n4-10
My agenda for modernization seeks to balance efficiency and effectiveness, while also recognizing what is both constitutionally and politically feasible in terms of change. 4-11 This search for a balanced approach led me to the concept of the Senate as a house of review. As the Senate becomes more independent and less partisan, it needs to develop a stronger, shared institutional identity and a collective commitment to the vitality of the institution. 4-12 In the past, I would argue, such an identity and shared purpose has been crowded out by partisanship. Partisanship cannot be eliminated entirely, and it is not always a negative feature of a political body like the Senate. The problem recently, however, has been an all-pervasive, intense and predominantly negative style of partisanship. 4-13 The new appointment process will eventually lead to a majority of senators with little or no high-level political involvement with parties. Furthermore, if more senators are not attached to national party caucuses in the House of Commons, there will be less pressure on them to follow the party line. These two factors, in combination with new leadership approaches within the Senate, should contribute over time to an institutional culture in which partisanship is more selective, muted and more constructive in purpose. 4-14 There is a section in the submission where I discuss a number of mechanisms and actions that could be used to modify the culture of the Senate. I will skip over those points except to say that cultural change, as I have observed it, is an organic evolutionary process that more resembles gardening than engineering. In other words, the seeds of cultural change within the Senate may be planted, but it will take time for them to come to fruition, and political storms may delay or destroy the emergence of a new culture. 4-15 Hence my emphasis on a transition period. n4-15
In the submission, I next try to clarify the somewhat vague notion of a "house of review.'' For me, the concept implies that the Senate would use its powers to monitor and restrain governments but would stage head-on confrontations over bills only in exceptional circumstances. 4-16 The undoubted right of the Senate to defeat, delay or fundamentally modify bills—for a number of reasons stated in the submission—should be used sparingly, in exceptional cases when bills are considered dangerous, when they are fundamentally unsound and/or they are not easily reversed once put into action. 4-17 Instead of showdowns over proposed laws, the Senate should consciously develop reliance on a number of low-key, indirect and medium-term approaches to influencing the policy-thinking of governments. 4-18 Yes, a little bit of sugar makes the medicin go down. n4-18
With respect to the law-making function of the Senate, these more subtle approaches to influencing governments would include the use of delay to allow for public opinion to crystallize, the attachment of observations in reports and bills, the use of pre-study of bills, and the inclusion in bills of timetables for reviews of legislation after enough time has passed to determine whether Parliament's intentions are being served. 4-19 Off-hand, I'd say that public opinion is a subject in itself, a subject that needs some study. For example, we may be intermingling the notions of public opinion and public sentiment. n4-19
The requirement for Senate approval of all legislation, what I call "hard power'' in the submission, would continue to provide leverage for these more subtle forms of influence, what I would describe as "soft power.'' 4-20 The submission then turns to the related scrutiny function of the Senate performed mainly through its committee system. I argue that the best prospect for Senate influence comes from the study of policy matters where the government has not taken a public position and is genuinely looking for advice. Through the scrutiny function, Senate committees would help ministers and the bureaucracy to identify which policies are no longer relevant or are not working as intended. 4-21 Yes, yes. Let's include established practices, something the Special Committee on Senate Modernization is concerned with. n4-21
In addition, committee studies can provide a kind of policy incubator that keeps certain fledgling policy ideas alive until governments are prepared to act. There are two conditions, however, for this scrutiny role to be enhanced. 4-22 The first is for governments to allow and support Senate inquiries and then to pay serious attention to the reports from committees. There should be a requirement for a government response to all substantive reports that flow from Senate committees. 4-23 The second condition is for senators to accept the demands of scrutiny activity that tends to be difficult, unglamorous work which usually generates little publicity. 4-24 The submission then looks briefly at how leadership roles and decision-making processes of the Senate will have to be modified as it becomes both more independent of government and less partisan. The government representative in the Senate will no longer be able to depend on party loyalty and party discipline as a basis for top-down command and control leadership. Instead, his leadership will depend upon communications, persuasion, negotiation, accommodation and principled compromises. 4-25 Consistent with the principles that senators should control the affairs of the institution, the Speaker should be elected by secret ballot. A committee on Senate affairs should be created to advise the Speaker. The committee should consist of the Government Representative, any leaders of organized caucuses that exist in the Senate, and elected representatives of each of four regional groupings among the Senate membership. The Speaker, as an independent elected member, should have the authority to split omnibus bills and refer different sections to the appropriate Senate standing committee. The committee on Senate affairs that advises the Speaker should perform the task of establishing the membership of Senate committees. 4-26 That committee on Senate affairs should include a person capable of managing a group of diverse scientific talents, Ref.. n4-26
A government representative in the Senate might collaborate with a Senate representative on "the other side." n4-26A
Committees should hold elections for the selection of their chairs and deputy chairs. 4-27 The committees should devote more time to the review of spending and performance of departments and agencies based in part on the hundreds of performance reports tabled annually in Parliament, most of which currently go unread. I make a point there about the weakest part of the parliamentary process is review of supply and use of performance evidence to achieve improvement in government performance. 4-28 The Chair and members of committees to be engaged in problem-solving activities are better selected by a suitably experienced benevolent dictator as pointed out in my essay, here. n4-28
I also suggest that the Senate should consider the creation of a committee on the public service to examine on an ongoing basis the health and future path of a vital national institution. I set forth a series of ministers and official witnesses from the government who could come before that committee and make suggestions on what kind of agenda might be followed there. 4-29 There has been talk of all-party regional caucuses to give greater meaning to the Senate's role as a regional voice. With fewer senators over time belonging to a formal party caucus, I would instead propose a standing committee on regional affairs. I would give this committee a larger membership than other committees of the Senate, and this committee would operate through four regional subcommittees of the Atlantic, Quebec, Ontario and the West. 4-30 This item has been considered in my essay's section about "Citizens' representatives". n4-30
I would finish by saying that the Senate is in transition to greater independence from government and to a less intense degree of partisanship within its daily activities. To reflect this transformation, the senators must take control of the future of the institution based on a shared sense of institutional purpose and a commitment to make the institution both more effective and more efficient over time. 4-31 Thank you for listening to me. 4-32 The Chair: Thank you, very much, professor. 5 Professor Mendes, please proceed. 5-1 Errol Mendes, professor, Faculty of Law—Common Law, University of Ottawa, as an individual: Mr. Chair, I will present my ideas in English, but I will be happy to take your questions in French. I have a French translation of the document that can be distributed. 6 In the Supreme Court's ruling on the Senate reform proposals, key parts of the court's decision are very relevant for the Senate in its quest for modernization. The court, in its ruling, advised all those in government that in attempting proposed changes to the functioning or nature of institutions protected by the Canadian Constitution, very technical or literal approaches to that foundational document will not suffice. 6-1 All players in the constitutional democracy must also pay attention to what the court called the "architecture'' of the Constitution. While the court did not elaborate on the definition or parameters of what it termed the "architecture'' of the Constitution, one can logically deduce that it includes not only the text of the Constitution, but also how the blueprints that were established by the original founding fathers—and mothers, hopefully—in 1867 are interpreted and implemented by institutions and key constitutionally empowered individuals and groups operating within their mandate and within the evolving nature of Canadian society. I suggest that the architecture in this sense will include the purpose and impact also of the repatriated Constitution of 1982, including the new amending formula. 6-2 "Patriated" is, I should think, the word to be used. The Constitution never ever left our country. n6-2
With this reasoning, this meta-understanding of the Constitution, the court held that consultative elections proposed by the prior federal government would fundamentally modify the constitutional architecture and constitute its amendment. In so ruling, however, it also implicitly gave constitutional guidelines to you on the modernization of the Senate in these critical words: 6-3 The implementation of consultative elections would amend the Constitution of Canada by fundamentally altering its architecture. It would modify the Senate's role within our constitutional structure as a complementary legislative body of sober second thought .... 6-4 ... They would weaken the Senate's role of sober second thought and would give it the democratic legitimacy to systematically block the House of Commons, contrary to its constitutional design. 6-5 Those were the most critical parts of the ruling in the court's decision, which I think offers guidance to this committee. 6-6 In another published article, I have demonstrated that the recently established independent process that offers recommendations to the Canadian Prime Minister on possible appointments to the Senate, in a similar process that the House of Lords Appointments Commission has also provided recommendations, in my view is not unconstitutional and I think will so be upheld by the Supreme Court. 6-7 However, the results of that process would reinforce the guidance that the court has given to the Senate as a legislative body whose role is—and again to quote the court—"to provide 'sober second thought' on the legislation adopted by the popular representatives of the House of Commons.'' 6-8 As long as there are existing party caucuses like the Conservative Party caucus in the Senate and the independent Liberal senators' grouping in the present Senate, even with the growing number of independent senators, I actually agree that partisanship cannot be avoided in the modernization of the Senate. However, what I suggest has been mandated by the ruling of the Supreme Court, which I have quoted above, is that modernization of the Senate requires that political party partisanship should be diminished to fully accomplish the Senate as a "sober second thought'' complementary body to the House of Commons. 6-9 I suggest you as a group have already proved that political party partisanship has indeed been diminished by your agreement to introduce, in my view, a truly revolutionary Question Period where individual ministers of the government are grilled far more effectively than in the House of Commons. I mentioned to one of you that this was one of the original ideas behind the Founding Fathers in the Constitution. You have also rightly demanded that they appear far more often and for longer. This is an example of the positive use of partisanship allegiances but without replicating the party political partisanship that can be said to replicate the environment in the House of Commons. 6-10 I suggest that the relevant provisions of the Parliament of Canada Act must be reexamined in light of the ruling of the Supreme Court that the Senate should be a complementary body to the House of Commons, and also in light of the increasing number of independent senators who could very soon form a majority. 6-11 The key provision in the act dealing with the way in which the Senate is administered is obviously the Standing Committee on Internal Economy, Budgets and Administration. In that provision itself, there is leeway for you to actually fulfill what I am suggesting. Subsection 19.1(3) states: 6-12 (3) The Leader of the Government in the Senate, or the nominee of the Leader, and the Leader of the Opposition in the Senate, or the nominee of the Leader, may, in accordance with the rules of the Senate, change the membership of the Committee from time to time, including during periods of prorogation or dissolution. 6-13 I suggest that the new federal government, in a quest for a less politically partisan Senate, has departed from the wording of the section and appointed a Representative of the Government in the Senate, as opposed to a Leader of the Government in the Senate. 6-14 That person, Senator Harder, has said that he is an independent senator and, like the other new senators that the Prime Minister has recently appointed, will have to think about the ruling of the court and see how they can fit in with this new mandate that they have been given. 6-15 I suggest despite the new title and the new soi-disant independent status, Senator Harder will be the person introducing government bills into the relevant structure of the Senate, and he has asserted he will support the content of these bills. It is clear that this new government representative, regardless of his claims to be an independent senator, will nevertheless be fulfilling a partisan role in terms of his duties to support and introduce government legislation, which I think is critical to have a government representative introducing the work of the lower house into the Senate. However, I suggest in terms of his other duties, as stipulated in section 2 of the act, this is where he could work with the Leader of the Opposition, and indeed all senators of goodwill, to promote a much less party-political partisan environment in the Senate. 6-16 This could start with revamping the membership of the Internal Economy Committee with the aim of a more equitable membership of those who represent not only the present Conservative and Liberal senators, but will include and in time increase the representation of independent senators as their numbers grow, whether or not they decide to have a formal caucus. 6-17 Section 2 gives the government leader and the Leader of the Opposition, or their nominees, the power to change the membership of this vital committee and to achieve a more equitable membership. This is obviously vital for the determination of budgets for an increasingly less party-political partisanship in the Senate. 6-18 This is also absolutely vital for modernization in other areas. These leaders could also work with other senators to propose changes to section 2 of the act to the federal government, to reflect the growing number of independent senators and the reality of independent partisan groups, like the independent Liberals who are not part of any political caucus. 6-19 It should be noted that under section 4 of the Internal Economy Committee, functions and powers are subject to the will of the Senate as a whole, which will soon be dominated by independent senators. Therefore, they should have a role as vital members of that committee. 6-20 As regards the controversial role of the committee in reviewing senators' expenses and other financial matters, again a more equitable membership for independent senators could assist in determining the ultimate form of oversight of key financial expenditures, including expenses. The Auditor General has called for a more independent body to oversee such financial matters and that the majority of its membership, including its chair, should also be independent of the Senate. 6-21 Some senators, including Senator Housakos, have responded to this suggestion by asserting that the Senate has greatly improved its oversight since the 2011–13 time frame that the Auditor General examined. However, there does seem to be acceptance by senators for increased disclosure and controls in the future. Senate leadership from both the Conservatives and the Liberals have accepted this, that the institution needs a culture change in this respect, and that more consultation with senators is required to determine the nature of any new oversight mechanism that can still maintain the constitutional independence of the Senate. Any final proposal on a more transparent and accountable mechanism would also require entrenchment and changes to the Parliament of Canada Act, and any such changes should include the work of the independent senators. 6-22 In conclusion, the Constitution Act 1867, the foundational document that established the country, starts with the expression of desire of the uniting provinces "... to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom ...." 6-23 The architecture of the Canadian Constitution that the court talks about shares with the modern British Constitution a desire to support the democratic will of the people in the elected house, with an upper house that reflects the regional nature of Canada with fulfilling the fundamental task of complementary legislative oversight. I suggest that if the Senate truly modernizes itself in the manner suggested above, it will enrich the democratic environment of the body politic of the country as a whole by the presence of the best partisan and non-partisan representatives of Canadian society that can offer to serve the public interest of all Canadians. 6-24 Thank you. 6-25 The Chair: Thank you very much, Mr. Mendes. 7 Stéphane Beaulac, Professor, Faculty of Law, University of Montreal, as an individual: Honourable Senators, thank you for inviting me to speak to you today. In many ways, I will seize this opportunity by focusing my remarks today on the decision rendered by the Supreme Court of Canada two years ago now, in reference to Senate reform. The title of my presentation today is: "Understanding the 2014 Decision on the Senate in Terms of the Rule of Law.'' I will use the English expression "rule of law,'' which I prefer to its French-Canadian translation "primauté du droit'' or to the French expression used in France "état de droit.'' 8 Why examine the 2014 decision in terms of rule of law? Essentially, it is to link the Senate and the Supreme Court of Canada decision to a contemporary concept. Senate modernization is being discussed, and the meta-principle of the rule of law can contribute to this discussion. The question remains: why undertake this exercise? It is because of the court's message that states that—as Mr. Mendes said earlier—to maintain the nature of the Senate, the appointment process must not have a democratic legitimacy; the popular mandate aspect must be evacuated from the process. However, this message is counter-intuitive, and to many, it does not ring true. 8-1 My thesis is that unless the Senate can be rationalized, including its role and the appointment process for senators, following the democratic principle that is so important these days, unless that can be done, we can understand and we must understand the court's message in the 2014 decision in terms of the rule of law, another meta-principle in our constitutional order. 8-2 The relevance of this exercise is to contribute to the rehabilitation of the Senate, to modernize it on the basis of the teachings of the highest court in the land, to link it to a contemporary concept, that of the rule of law, and thereby to create a beacon for reform projects, to allow us, in the long term, to create a Senate 2.0. 8-3 In the 2014 decision, the Supreme Court chose to address the applicable legal framework to Senate reform by dividing its opinion to answer four questions. Firstly, it dealt with the proposal for consultative elections for the appointment of senators. Secondly, it dealt with the duration of senators' mandate which would be a fixed duration. Thirdly, it addressed the qualifications with respect to property, and finally, the issue of abolition of the Senate. 8-4 I will concentrate on the first two questions and on the teachings of the Supreme Court on this issue. To be even more precise, I am not interested, for the purposes of today's presentation, in the mechanics of the amending formula, namely, the Constitution's amendment procedures set out in Part 5 of the Constitution Act, 1982. These are undoubtedly important aspects, but I will leave them to procedural specialists. 8-5 With regard to the first question on the appointment process and the proposal to hold consultative elections, the Supreme Court said more about the various roles of the upper chamber, three of which were highlighted in the introduction as a reference, particularly in paragraphs 15 and 16. Among these three roles—and I'm repeating what my colleague Mr. Mendes said earlier—the most important role of the Senate is to be a complementary legislative body, responsible for sober second thought. 8-6 The well-known chamber of sober second thought. 8-7 I wonder about that "sober" part. Does an adversarial debate really permit sober thought? n8-7 This is without a doubt it's most important role. Furthermore, the Supreme Court defines a second role for the Senate, the role of providing a distinct form of representation for the regions that had joined Confederation in 1867. Thirdly, and the Supreme Court really talks about this in terms of a role—although this role is now present, it was not at its origins, namely as a place. The Senate represents a place that brings together parliamentarians of various groups that are under-represented in the House of Commons. Historically, these are women and ethnic, religious, linguistic and Aboriginal groups. 8-8 To return to the part of the 2014 reference that deals with the possibility of consultative elections of senators, I would say this is the section where highly interesting elements are found with respect to my thesis on the metaprinciple of the rule of law, and the modernization proposals. 8-9 I will cite a few excerpts for you. In paragraph 57, the Supreme Court wrote the following: 8-10 [57] As this court wrote in the Upper House Reference ... 8-11 —that of 1982— 8-12 ..."[i]n creating the Senate in the manner provided in the Act ... 8-13 —that of 1867— 8-14 ... it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons" ... 8-15 Paragraph 57 then continues as follows: 8-16 The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove senators from a partisan political arena .... 8-17 Here is the next excerpt for the moment, with the court continuing in paragraph 58 as follows: 8-18 [58] Correlatively, the choice of executive appointment for Senators was also intended to ensure that the Senate would be a complementary legislative body, rather than a perennial rival of the House of Commons in the legislative process. 8-19 Here, the point that I raised a bit earlier is shown clearly, in the description that the Supreme Court gives of the Senate. In my opinion, it is counterintuitive concerning the governance of a modern state. It is at odds with the democratic principle, at least in its narrow interpretation. 8-20 In my opinion, it is here that the other main metaprinciple of our Canadian constitutional order, the principle of the rule of law, must come into play. To give you an idea and to provide context, at the international level, including within the United Nations, the principle of the rule of law, as it is interpreted internationally, is clearly topical. 8-21 In his 2004 report to the United Nations Security Council, the UN Secretary-General at the time, Kofi Annan, gave the following definition of the principle of the rule of law, which refers to, and I quote: 8-22 ... principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publically promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. 8-23 I will spare you the details, but in the doctrine, the idea of rule of law is split into different forms: the substantive rule of law, the substantial version, which is distinguished from the formal version. So it is a matter of— 8-24 —thin version progressing to a thicker version— 8-25 It is derived from the doctrine in English, which is why English terms are used. 8-26 In conclusion, one of two things: first of all, for me, the concept of rule of law is key to a modern understanding of the teachings of the Supreme Court in its 2014 reference, if they are to apply in a contemporary and modern context. 8-27 For example, in the Court's reasons regarding the appointment of senators, the Court, insisting on the Senate's primary role as a complementary legislative body, mentions the legislative process and the wisdom required of our laws. In paragraph 58, the Court cites John A. Macdonald in referring to the role of the Senate as, and I quote: 8-28 ... calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill considered legislation which may come from that body, but it will never ... 8-29 —the caveat— 8-30 ... set itself in opposition against the deliberate and understood wishes of the people. 8-31 It seems to me that effort needs to be devoted to arriving at a greater mutual understanding between "the people" and the Senate. Improving transparency of Senate proceedings is only a part of this, but it is a one-way street. The other way ought come about from having a number of senators in close touch with the people. My essay refers to them as "citizens' representatives," see here. n8-31
My last point, in conclusion, is that, in addition to improving the understanding of the 2014 reference and putting into perspective the democratic principle—often considered all-consuming—this idea of democracy, the principle of rule of law represents a kind of beacon to guide modernization of the institution of the upper chamber. In short, it can balance an appointment process for non-democratically elected senators with the metaprinciple of our constitutional order, which is the principle of the rule of law specifically set out in our constitutional texts. 8-32 Thank you for listening, and I look forward to your comments and questions. 8-33 The Chair: Thank you very much, Professor Beaulac. Before I proceed, we have two new senators that have joined our committee this morning. I want to welcome Senator Plett and Senator Sinclair. 9 Should you wish to ask a question, just signal the clerk. We maintain a list and we do it in orderly fashion. Welcome and thank you for coming. 9-1 Let's proceed with Professor Desserud. 9-2 Donald Desserud, Professor, Department of Political Science, Faculty of Arts, University of Prince Edward Island, as an individual: Thank you very much. 10 Professor Ned Franks wrote that there are in fact two Senates: The one which actually exists, and the other which exists only in the imagination of those of us who propose to reform it. 10-1 I want to start by acknowledging that my recommendations may very well be more appropriate for the Senate as I imagine it. As a university professor, I'm constantly being told how better to run our universities. I always have two answers for them: One is that, no, we're already doing that. The second one is that it doesn't work that way. I suspect that you're going to say the same thing when you hear what I have to say, but this is the best that I can offer. 10-2 The presentation I'm making is a summary of the paper that I gave in the January 2015 forum, and I do have that as a position paper for anyone who would like a copy. This is a summary of the recommendations that I made at that time. 10-3 My first recommendation dealt with the appointment process and the whole question, rather vague and never defined, of democratic legitimacy. I pointed out at that time that during the Confederation debates that led up to the writing of the British North America Act of 1867, the question of whether the new Senate would be elected or appointed was well discussed. 10-4 Most speakers supported an appointed Senate, but this was not because they wanted to create a chamber of aristocratic privilege. Rather, it was accepted that an appointed Senate would be reluctant to challenge the elected House of Commons. Lacking the moral authority of their Commons counterparts, it was thought that appointed senators would be rather reticent to impede their will. 10-5 I think this means that Canada is the only country in the world that has tried to entrench embarrassment as a constitutional principle. 10-6 My recommendation was that the dialogue we engage in on what the Senate should not be doing is not productive. The Senate has powers to do things, it would be better served if the Senate focused on what needs to be done and what it can do and not what it should not do. 10-7 This leads into my recommendations 2 and 3, some of which have been touched on already by previous speakers. This has to do with the Senate's role in amending legislation, including money bills and omnibus bills. 10-8 I argue in the paper is that we created what I consider to be a false dichotomy. Somehow, we seem to argue that the Senate only has two choices: that either it will exercise its full constitutional powers and frequently, maybe aggressively, amend or defeat legislation; or that it should be simply rubber-stamping all legislation as it appears before it. 10-9 There has to be a moderate middle between these two positions, and I'm in total agreement with what Professor Thomas has already said about what some of those ideas would be. I would add that deconstructing legislation—this is not even necessarily amending it, but simply deconstructing it—that is, taking complicated and impenetrable legislation such as budgets and omnibus bills and bringing them forward in such a way that they can be understood by the citizens of this country, would by itself be an extremely valuable service. If the Senate has the time and resources to do so, this would be a great thing, if it were able to pursue it. 10-10 My recommendation number 4 was already covered very well by Mr. Mendes. It had to do with the idea of inviting cabinet ministers to the Senate to speak on their legislation. I think it's an excellent idea. I understand that is already being done and that so far it has worked well. 10-11 You may be interested to know that this has been tried before and that it did not work very well. Cabinet ministers found themselves somewhat uncomfortable speaking before an audience where they did not have their own backbench supporters who rally them on. I'm hoping that this will be different this time around. 10-12 I'll conclude my short remarks on something that might seem very simple but I think it's worth saying again. The Senate has a public role and Senate committees have played a public role in the past. This is something that I think should be done more and should be done more visibly. 10-13 I think it would be an excellent idea and the public would respond well if the Senate would take their show on the road, so to speak. There is a lot of work to be done. There are a lot of issues that require the time and resources that the Senate has that can be looked at in greater detail and can be looked at in communities across the country. The more the public sees of the Senate doing its work, the better the public will understand what the Senate does. That problem is at the root of much of our discussion here: The public does not understand what the Senate does. 10-14 Which brings us back to the need to bring our democracy back to robust health." To begin with, the Senate should be requested to look at this issue. Re "Show on the road," this notion may be connected to having senators who are "Citizens' representatives." n10-14
I'll conclude with that. Thank you. 10-15 The Chair: Thank you very much, professor. 11 Another role we have is we go to questions from the senators. We always start with the deputy chair of the committee. 11-1 Senator Joyal: Welcome, Professor Thomas. My first question is to you. Thank you for the 26-page document that you provided to us. I read it with great interest. 12 I would like to come back to your opening remarks, your very first words, when you spoke about the Senate "transforming itself from a house of political parties into a house of review.'' In my opinion, very respectfully submitted to you, you confused two things. You confused the composition of the Senate versus the role of the Senate. In my opinion and according to the Supreme Court decision as it was explained by Professor Mendes, there is no dispute on the role of the Senate. It is the second house; it is the complementary house. It has to be independent from the elected house. It should not stand against the house when the government is implementing a popular mandate. I think that is very well accepted. In fact, if you look into the 150 past years of the Senate, I don't think that has been questioned. What has been questioned is more the composition of the Senate put to its extreme partisanship. 12-1 Imagine a Senate where all the members of the Senate sit under the label of one party, where all of them have been past candidates, former ministers, former bagmen or former political structure appointees, of course with the capacity for the Prime Minister to order them to vote all at the same time, on the same issue, in the same direction, essentially abandoning all its analytical capacity to propose and support partisan objectives. Of course I'm characterizing the situation. However, that's essentially what the public has in mind when they criticize the Senate. 12-2 Caricaturizing? n12-2 In practice, to go to the other extreme, where we would have 105 loose cannons trying to come back and forth on any kind of public issues, in my opinion, would not provide the objective that the Supreme Court has described as being the objective of a second chamber in a Westminster model of Parliament in one of the model democracies in the world, whatever might be the weaknesses of the Canadian Parliament as a whole. 12-3 One cannot reshape the Senate against the concept of Parliament because the Senate is part of Parliament. It's part and parcel of Parliament and cannot be seen and redefined separate from the House of Commons. There is one unity. It's like the yin and the yang. It's like the two sides of one coin. It has to work in sync. But in working in sync, on different grounds and with different objectives, its nature remains very political. 12-4 In your document, at page 17, I was reconciled with your opening marks when I read: 12-5 In my view the complete elimination of partisanship will never be possible because there will always be like-minded Senators who work together to advance different philosophies of government, regional concerns and specific policy agendas. 12-6 In my opinion, it's a question of measure and balance. I can be a member of any political party but keep an independence of mind. I can be critical of my own party and be able to do it on the floor of the Senate because there is no discipline that can come to me from the party leader refusing to shorten my term of office, preventing me from committee membership or preventing me from travelling on parliamentary junkets. If those are the things that would command a reshaping of the institution, it doesn't meet the purpose that the public has to have trust and confidence in the institution. 12-7 The proof is in the pudding. The proof is in what the Senate does as a second house of Parliament. To be credible in what it does, it has to be a political institution. We are a political institution. We are not the Académie française or the Royal Society of London or even the Royal Society of Canada. 12-8 I will put the question, senator. You might not like what I am saying, but this is an important issue. 12-9 I think it is essentially in that context that we have to redefine the operation of the institution. That's why when you oppose, to use your words, the house of political parties versus the house of review, in my opinion, you unbalance two elements which are totally distinct and have to be redefined differently. 12-10 Mr. Thomas: That's a long preamble and a short question. Lots could be said. 13 First, the title and the concept were partly to be provocative. I've succeeded in that. 13-1 Second, I'm not a lawyer, but I don't accept the neat, sharp distinction between constitutional formalities—what's written in constitutional documents, which is the starting point—and the separate world of real politics of partisan governments and party loyalty more than the party discipline that operates quite strongly on the House of Commons side and to a lesser extent on the Senate side. 13-2 You've been around long enough, Senator Joyal, to know firsthand more than I do how, under certain government leadership, the Senate has been taken for granted. It has been seen as an obstacle that needs to be circumvented, and you know the public reputation and characterization of the Senate as a bunch of political hacks. 13-3 What I said is that the Senate has problems in terms of being assertive and aggressive in using its undoubted constitutional authority and that it should rely on more subtle forms of influence in government thinking. When ministers and public servants come before the committee in charge of bills, they're not likely at that late stage to change their mind. 13-4 I think there's greater room for the development of a set of conventions, in the same way that the House of Lords has a convention that it will not persistently set out to defeat a bill that was a fundamental part of the mandate of the governing party. That's very well accepted. 13-5 In the Australian Senate, where I've been twice to watch the committees at work, they have a very strong sense that they are there to challenge, particularly on spending and performance evidence, which I think the Senate committees need to do more of, because the House of Commons does a woeful job at reviewing estimates and performance reports. I think there is a lot to be done. 13-6 We're not that far apart. You put more emphasis on the strict words of the Constitution. I say that you're not going to be able to create an agenda for modernization, which leads ultimately to a powerful Senate that blocks legislation on a regular basis. 13-7 Mr. Mendes: In defence of loose cannons, Senator Joyal, if you actually look at the history of how the Senate was created, especially the debates between both George Brown and Sir John A. Macdonald, they actually had in mind a review panel. In fact, I'm using the brilliant book by Janet Ajzenstat, which you edited. She quotes George Brown and Sir John A. Macdonald, which actually says that the Senate should be a review, have a function where, for example, the purpose of it was to challenge. This goes back to my statement about challenging the ministers in Question Period. Their focus was very much on the Senate challenging the cabinet—not so much dealing with legislation but challenging the cabinet. They viewed the greatest danger to democracy in Canada to be the concentration of power in the cabinet itself. 14 That's a defence of loose cannons. 14-1 Senator McIntyre: Gentlemen, thank you for providing expert evidence to this committee. As you know, our job is to make the Senate more effective under the current constitutional framework. 15 Originally, I had a question regarding the role of the government representative in the Senate. However, Professor Mendes has covered that ground, so I'll move on. 15-1 Televising of Senate Chamber proceedings has been recommended in the report of the symposium in which you participated last year at the University of Ottawa. In addition, my understanding is that it's one of the recommendations emanating from the working sessions organized by Senators Greene and Massicotte. To what extent would broadcasting Senate proceedings increase senatorial accountability? How? Is there a danger that broadcasting might lead to senators focusing on issues of public interest as opposed to public importance? Could it shift the focus of the Senate's work? 15-2 While favouring televising of Senate proceedings, my concern is with the media. For example, newspaper columnists need to deliver opinions of so-many column inches that meet scheduled deadlines. Then there are such distorting effects of what sells, etc. It is these facts in the back of my mind that led me to write "Some notes on public education by the media" n15-2
Mr. Mendes: I think it's overdue. Much of your exposure right now is through the televising of Senate committees, including this one, I presume, so I highly encourage it. If the Supreme Court of Canada can televise its hearings, there's absolutely no reason why the Senate itself cannot do that. It reinforces some of the recommendations that both Professor Desserud and Professor Thomas have mentioned in terms of being able to provide the discussion on those areas which the House of Commons doesn't have either the time, the capacity or the expertise to deal with. I think focusing on those could be one of the most profoundly important aspects of a modernized Senate to. 16 Just look at the horrible news came out of the First Nations yesterday. What really can be done about that? I hate to even mention it in the presence of the expert in the room. There's not enough time in the House of Commons to fully understand how to meet that challenge, and I think that could be one of the greatest contributions that a modernized Senate could make. 16-1 Senator McIntyre: Would others care to comment? 17 Mr. Beaulac: Your question reminds me of a debate in law that has been ongoing for some time, which is whether parliamentary debates should be made public and whether they can be used in court. It is in our interest to be transparent by making public all necessary information and trusting the thoughts behind the proceedings. Perhaps my intuition leads me to doubt that this could create as much buzz as that of a reality television show, but even if a minimum of information is made public, in the end, citizens will ultimately be required to respect laws that the Senate will have helped to create. Democracy and the rule of law will have won, because awareness and transparency are important for the prescriptive aspect of a jurisdiction. 18 Mr. Desserud: I'll add one more comment. I wish I could say that televising Question Period has improved the public's understanding of how Parliament works. I'm afraid it has not. If you had asked me in the early 1970s whether we should televise, absolutely we would have to. I'm a little less confident that these are always positive developments. 19 One part of the public may perceive a debate as a way to improve a shared understanding of the subject matter. Others may perceive the same debate as a quarrel among the debaters. It is all "in the eye of the beholder." n19 So I would agree; I can't see any other way to open up proceedings so that people have a better understanding of what happens inside the Senate than to televise it. I don't know that there is another way. But there has to be a caution added to that: It has changed the way people behave in Question Period, particularly in terms of not answering questions but simply trying to find the appropriate sound bite that can be then reproduced on the six o'clock news. I would hate to see the Senate go in that direction. 19-1 Mr. Thomas: I have a very brief point. As part of providing incentives to senators working on committees to do the hard work involved over long hours, listening to expert witnesses and so on, reports are brought back to the floor of the Senate and a government response should be required. Those debates could be quite informative, quite high-level debates, and give other senators who weren't serving on the committee the chance to take views on often very topical issues, and issues that are often highly sensitive. It would show the Senate at work, because not all the Senate committees can be covered by CPAC. I would see that as part of the incentive system for independent senators working on the committees. 20 Senator Tardif: First of all, I would like to thank our four experts, who generously accepted to appear before the committee this morning. My question is for Professor Beaulac, but if any of you want to make comments as well, please feel free. Professor Beaulac, you stated that the primacy of rule of law should be considered as a beacon to help us modernize the Senate. More concretely, how will the proposals under review by our committee promote this principle of rule of law? 21 Mr. Beaulac: As I sometimes tell my students, I am very conscious of my area. In the spirit of increasing specialization, I am more interested by principles than by the way they are put into practice. I will leave it to others to make concrete proposals. 22 However, in answer to your question, I would say this: I insist upon—as I did in my presentation—the principle of the rule of law, not to point out where it fits in the hierarchical sense but, rather, to place it in the same category of metaprinciples upon which our Canadian constitutional order rests. I encourage people to step back and put the democratic principle into perspective, so that it does not assume more importance than it should. Indeed, too much of the debate surrounding reform—not at the micro level, where your question is leading me, but at the macro level—is considered almost entirely with regard to the democratic principle, and that is starting off with two strikes against us. 22-1 What I would like to suggest, even if it is the only part of the message I am trying to get across today, is that the principle of the rule of law need not be opposed to that of democracy. The suggestion that we would lose democratic ground by legitimizing the Senate's work, role and way of functioning, in terms of the rule of law rather than in democratic terms, is a false dichotomy. The principle of the rule of law is not the poor cousin, it is an integral part of a healthy modern constitutional democracy. 22-2 When the time comes to give a modicum of perspective to proposals for concrete reform—the role played by senators and the Speaker of the Senate, parliamentarians' joint participation and so forth—the message is that there is no shame in taking a step back and viewing democracy in context as a principle in and of itself, namely the expression of popular will, the 50 per cent plus one. We must—and this is one of the central lessons of the Supreme Court decision handed down in April 2014—and we can very easily understand the nature and the modern role of the Senate in terms of rule of law in tandem with the democratic principle. 22-3 Mr. Mendes: At the micro level, I would like to add that, with respect to the rule of law, I believe the most important thing is the equality of senators. 23 The reason I think that is important is that if you have more and more independent senators, they have to be treated equally. That is a fundamental principle of the rule of law, that all senators must be treated equally. So I would like to see more representation of independent senators on the Internal Economy Committee and the Selection Committee so that they feel they are equal. 23-1 That is an absolutely fundamental principle of the rule of law. Thank you. 23-2 Senator Tardif: Thank you for your examples and your explanations. I am adding myself to the list for the second round of questions. 24 Senator Massicotte: I would like to thank all the experts, whose testimony is greatly appreciated. My questions will be short so that I may ask several. 25 Professor Thomas, you talked about using soft power, and you are discouraging us, if you wish, to use our hard power. We have a veto power for all bills, like the House of Commons; it's equal in powers. But you are suggesting we should go soft on that by way of dialogue or pre-study. To avoid what? Let us assume that the pre-study, the soft part, does not work. Should we avoid amending and proposing amendments to bills and sending them back to the House of Commons for their regard? 25-1 Mr. Thomas: The answer to that is no. Delay and proposals to amend are quite useful, and I would hold in reserve the ultimate power to defeat legislation, to send it back to the House of Commons. But I do not think on a regular basis that the Senate will be in a good position in terms of technical capacity to second-guess the government-prepared legislation, which is not to say there is not flawed or dangerous legislation that comes forth through government and through passage under party discipline or loyalty in the House of Commons. For example, I think the work being done by senators over the years on the Standing Joint Committee for the Scrutiny of Regulations, a delegated law-making authority, has been very important. It has been the Senate contingent on that standing committee that has done the hard, difficult, detailed work of understanding the implications in terms of individual freedom and rights of citizens and organizations under the law. That is a useful role the Senate can play. 26 I am saying, though, that given the fact a lot of preparation goes into legislation—lots of consultation, review by caucus, Charter proofing—by the time legislation reaches the parliamentary stage in the Senate, many of the issues have been sorted out; and I am not sure ministers, at that juncture, will change their mind. But, no, I am not saying that you forego the authority to veto bills. 26-1 Senator Massicotte: You realize our tradition has been historically that if we propose an amendment to a bill, it goes back to the House of Commons. A second point: If public opinion as represented by the House of Commons dictates and maintains its position, we have historically held our nose and passed it, saying that is the will and opinion of the public. Is that good enough? 27 Secondly, if you look at what the House of Lords in England did, they actually passed legislation saying that the House of Lords has one year only to approve legislation; if not done, automatically it's deemed to be approved. While you seem to be concerned, and while your assumption is that legislation comes to us and it is always very good and proper and well thought out, I would beg to differ. Although we have not always been very willing to amend bills, in England, two thirds of all bills are amended by the House of Lords by people who are not elected. What's wrong with that? Would you agree that we should consider a U.K. proposal to limit our timely review to basically comfort the public that we will not be obstructive? 27-1 Mr. Thomas: I know the work of Meg Russell in the U.K. She's been very impressive in terms of gathering data on how frequently the House of Lords successfully amends bills. It's become part of the custom. In Australia, changes to the estimates are made regularly by a very independent Senate, often where there is no government majority. So it is not outrageous. I am not saying never amend bills, and I am not saying every bill that comes out of government is perfect. Many of them are probably flawed. The late Senator Forsey used to talk about a dog's breakfast in terms of legislation, a sort of unpalatable combination of ingredients in some way. 28 I think you do want to do that. I am just saying that if you really want to have an impact on government thinking, it helps to be ahead of where the government is at the time and look for windows of opportunity where you can have an impact on government thinking before that thinking becomes frozen. That is your best prospect. Asking a minister to change his or her mind is often very difficult to accomplish. 28-1 Senator Massicotte: Mr. Mendes, you recommend strongly that we should elect and control the name of our own Speaker. Do you have an opinion on whether that requires a constitutional amendment or at least an amendment to the Parliament of Canada Act? 29 Mr. Mendes: This raises a whole bunch of issues. How do you amend your existing statutory provisions, et cetera? One of the most urgent things to think about as a group is how do you amend the Parliament of Canada Act, as I have suggested, and think about if you get the consent of the existing groupings and caucuses in the Senate, as a consensus, how do you do that, not just in terms of the Speaker but the chairs of committees too? If you were to introduce an entirely different structure on how chairs of committees are elected and the Speaker is elected, the Internal Economy Committee is elected too, I think it would send a lot of signals to the lower house. 30 Senator Massicotte: But is it in our control? In other words, let us say we get there. Let's say senators are in agreement. But even if we wished to do so, can we do so, or do we need to have a referendum? Because we want to avoid any constitutional debate requiring public opinion. 31 Mr. Mendes: Yes. 32 It is interesting that the present government thinks that it doesn't need an amendment to the Parliament of Canada Act to move the title of Leader of the Government in the Senate to Representative of the Government. If there were consensus in the Senate to propose that you elect the Speaker, given the fact that they are already willing to forgo any formal amendment process to the act, perhaps they would even say "go ahead.'' You should try it and see what happens. 32-1 Senator Massicotte: I have another comment. There has been a historical practice within parties, particularly in the House of Commons but also in the Senate, of whipping the senators or whipping votes to get a desired result. It is the same thing with most senators having historically attended national caucus, which is the weekly meetings of political parties, including senators and members of the House of Commons. Some parties have gone away from that. 33 Is that good or negative, and should there be pressure or should we try to seek consensus to discourage attendance at national caucus? In national caucuses there is obviously peer pressure, a brainwashing process with information. 33-1 How about the whipping of votes? Should we try to get there, or is that all okay? 33-2 Mr. Mendes: In keeping with what I am suggesting is what the Supreme Court of Canada seemed to be sending signals to you is that partisanship is fine, but political partisanship where you are basically an echo chamber of the lower house is not fine. If the whip creates that echo chamber, it makes you wonder if you are living up to what the Supreme Court of Canada was asking you to do. 34 Over time, this could actually be a huge issue that those who are presently in party caucuses will have to face. It could potentially be in violation of the ruling or the direction that the court has given you. 34-1 Mr. Beaulac: As to the second last question about the ability to operate within a constitutional order without making any changes, here is what I think. Without a doubt, the measures and changes, including those related to the speakership of the Senate, will be contested. There will always be legal challenges such as Mr. Galati's following Justice Nadon's appointment. That case was heard by the Supreme Court of Canada. 35 The April 2014 decision offers a framework wherein we can attempt to reform and modify certain practices, certain participant roles and so forth. The issue is whether we can 100 per cent guarantee that there will be no challenges on the matter. Probably not. However, this trial and error process is very healthy within our constitutional framework. We must be bold—and I hope that the current government will do this—move forward and try to work— 35-1 —not outside the box but within the constitutional box. 35-2 Senator Frum: Mr. Mendes, I want to follow up on two things you've said. One was from a moment ago that caught my attention. You said something to the effect of partisanship in the Senate is fine but not political partisanship. I do not understand the difference, and I do not know if there is a real difference. Can you explain? 36 Mr. Mendes: I would be happy to. 37 Party-political partisanship is just following orders from the whip that the lower house has given you. Essentially, that is fine in the lower house. That is what is expected. 37-1 As I have been discussing, though, the fundamental purpose of the Senate was to be—and the court has stressed this again—an independent complementary body of sober second thought. Can you have sober second thought when a whip is saying to you that you have to think and act a certain way? I do not think that is possible. 37-2 Senator Frum: But you know that is not always the case. There have been many times when senators in this chamber, prior to the recent appointments, have voted contrary to the official party line. 38 Mr. Mendes: When you do that, then you are partisan, but you are not party-political partisan. And congratulations for doing it. 39 Senator Frum: Hold on. So you prove your lack of political partisanship by not voting for your party. So doing the opposite proves you are independent? 40 Mr. Mendes: I do not think you are following what I am trying to say here. Requiring an independent complementary, sober-second-thought body is—as one of you said in previous hearings, and I think Senator Joyal said this too, it is very difficult for any individuals to have some idea of what they lean toward in terms of political opinions, et cetera. 41 But when you accept to come into this place, given the history of the Senate and given the ruling of the Supreme Court that requires you to be a body of complementary sober second thought, it is just not logical that you would then basically agree to do whatever the whip in the lower house has told you to do. It just does not follow. 41-1 Senator Frum: So it is your expectation that with at least six of the seven new senators, we will see an unpredictability in how they will vote? Is that your expectation? 42 Mr. Mendes: Sure. Absolutely. 43 Senator Frum: It will be interesting to see. 44 Mr. Mendes: In praise of loose cannons again. 45 Senator Frum: Time will tell. 46 You mentioned that there should be equality between all senators and that it is therefore important for independents to have the ability to sit on committees as they wish. 46-1 I would argue that if you want to have true equality, you cannot give them a privileged position. I do not understand how you will populate committees when you have some senators—the independents—who are really freelancers, not loose cannons, who can pick and choose which committees they want to sit on. If they want to sit on one, they can, but if they don't want to, they can turn it down. 46-2 People in caucuses who organize themselves do not have that privilege, because in order to make the institution function, they have to cooperate. Can you not see that, potentially, independent senators will have a privileged position over those of us in a caucus? 46-3 Mr. Mendes: Meg Russell gave a fascinating answer in a previous report to all the challenges some of you were throwing at her: Given the fact that we are in a different ball game, you have to start thinking about a different "logic.'' That's the word she used, and I liked that word a lot, because a different logic could be the way to address this problem. For example, you could have a Selection Committee made up of an equitable membership of not only Conservatives but the independent senators and representatives of the independent senators, where they make a decision based on expertise and the ability to provide what the Supreme Court of Canada said—sober second thought—and so provide memberships on that basis. That fulfills the principle of equality of senators if you structure the Selection Committee that way. 47 Senator Frum: A final question: So you envision that the independent senators will eventually sit together in a caucus of like-minded senators. 48 Mr. Mendes: No, I am talking about the Selection Committee that now determines it. If you structure it that way—who knows? I gather that in the U.K. there is even a Convenor of the Crossbenchers. Maybe that will happen here, too. 49 But if you focus on the logic of what this new era requires, I think all these problems can be resolved. 49-1 The Chair: Professor Thomas, did you have a comment? 50 Mr. Thomas: I would not mind getting in on this discussion of the role of party caucuses. I did two studies of party caucuses and interviewed extensively during the Mulroney era and the overlapping Chretien/Martin era. 51 Caucus counts for far more than most people outside of Parliament know, and most party cohesion is not based on three-line whips being applied to people. People go and have a chance to have their say in private. They're part of a group of people who have the sense of team play. They are all on the same side, so you do not have to browbeat and intimidate MPs, let alone senators, into following the party line. It is rare that such a thing happens, frankly. It is more like a social psychology process of convincing people that this is the best way forward. 51-1 I actually regret the fact that what used to be the Liberal senators are no longer part of the national caucus for the reason that in times of deficits, in their representation across the country those regional voices were often taken up by senators. Senators saw an obligation to do that. They did not have an elected mandate to do that. 51-2 I do not think you can ban people from attending caucus, and I do not think it is necessarily a bad thing. The reputation and image of the Senate is not going to rise and fall on whether senators go to a private meeting once a week. There is a lot more to be done to rehabilitate the reputation of the Senate than banning people from caucuses. At the time, it was a clever political move, but I am not sure it has enduring political value. 51-3 Senator Bellemare: I will speak in French and I do hope that it will not make my thoughts difficult to understand. I would like to come back to the idea of caucuses. Unfortunately, I arrived slightly late and was therefore not able to hear your full presentation, Professor Thomas. However, I read your article. I wonder why none of you raised the question of why we need to modernize the Senate. We all agree that it must be done, but why has the Senate become so partisan? Why are Canadians so disillusioned with the Senate? The answer may lie in the institution's history. 52 In my opinion, partisanship and the rules and practices that have evolved in the Senate stem from the fact that the Senate has been bipartisan for 150 years. If a Senate has only two groups, one of them will necessarily be in a majority position. The government's temptation to control the Senate by appointing more people to be able to circumvent the process, in fact, abolishes it. In my opinion, the Senate has, in practice, virtually been abolished over the past few years. When erroneous bills are passed, there is clearly a lack of diligence and serious work. 52-1 And so, when we study other Senates around the world—and yesterday, Meg Russell talked about the same ideas that I have put forward and stand by—we note that, with the exception of the United States and Canada, very few countries have a Senate made up of only two groups. In my opinion, that is why, in the United Kingdom, where there are groups associated with parties and a group of independent senators, for a total of five groups, partisanship is not the real problem. Here, partisanship has increased significantly given this idea of bipartisanship, which spurs the Senate to take control. 52-2 Why has partisanship become so important here? It has to do with this bipartisanship that makes it too tempting to control the Senate. It is as though we have naughty children, people who will stop at nothing to prevent independent senators from creating a caucus, a real caucus with the same status as the others. The current rules state that, for a caucus to be recognized as such, its members must be part of a political party that is registered with the government. For example, we independents could become a Rhinoceros Party in order to be recognized. This is completely ridiculous. 52-3 So why should we not change this rule? Here is my question: is this rule in violation of the Constitution? Does it not violate the notion that the freedom of association is stronger than the freedom of non-association? Could senators turn to the Charter of Rights and Freedoms to state that our rules are unconstitutional? In my opinion, if this rule, and this rule alone, were modified, the caucus of independent senators would become an organized group who would automatically be able to sit on the Internal Economy Committee and the Selection Committee. The independent senators would therefore have the same rights. 52-4 I am very surprised that you did not raise this point. As such, I would like to hear your comments and your answer to my question concerning whether or not the rules are constitutional. 52-5 Mr. Beaulac: I will give a very brief answer and then I will turn it over to my colleague Errol Mendes. To the very specific question concerning whether or not the way of doing things, the practice for almost 150 years, is constitutional, my short answer is that it must be tested relative to the principles that have been raised more than once and that were quite clearly articulated in the Supreme Court decision of April 2014. In other words, is bipartisanship—and I agree with you, Senator, that this has certainly created, reproduced and cloned the practices of the House of Commons by, at the end of the day, polarizing all of the debates, by oversimplifying many of them, because the result was either black or white, or if you prefer, red or blue. 53 So the short answer is that we must determine if this way of doing things, if senatorial practice is irreconcilable with the very nature, the fundamental nature of the Senate as a complementary legislative body of sober second thought. The Supreme Court was not asked this question and so did not explicitly deal with the issue in its decision. However, it would be interesting, given the reforms and modernization, to try to delve deeper into this role and go back to the creation of this fundamental, and primary, role of the Senate to find a justification for abandoning and removing bipartisanship. 53-1 Mr. Mendes: Please allow me to answer in English, because your question is very important and, at the same time, very complex. 54 Perhaps I can start by saying that in one sense you are correct that the idea of bipartisanship is entrenched in the Senate. In another sense it is not. There was another principle from the very beginning that was equal to the notion of bipartisanship. I would love to give you a quote, which is in the great book edited by Senator Joyal. In an article by Janet Ajzenstat she quotes John A. Macdonald. He said: 54-1 We will enjoy here that which is the great test of constitutional freedom—we will have the rights of the minority respected. In all countries the rights of the majority take care of themselves, but it is only in countries like England enjoying constitutional liberty, and safe from the tyranny of a single despot or of an unbridled democracy, that the rights of minorities are regarded. 54-2 It is really interesting that Professor Ajzenstat says that by the word "minority'' Macdonald does not mean ethnic or religious minorities as commentators have supposed. He discusses the issue of ethnic minorities elsewhere in the constitutional debates. "Minority'' here refers to political minorities, the political opposition in the Senate and the House of Commons, and the populace at large. Macdonald was saying that the supreme benefit of parliamentary government is that it protects political opposition, the right to dissent within the concept of bipartisanship. 54-3 That is where I think this whole idea of trying to create a complementary body of sober second thought comes from—not only from his urging of this principle. George Brown completely agreed with him, too. You had it from both sides of the political aisle that what is needed is what we are discussing today: how to have a body that is truly independent, yes has partisanship, but not one that has a whip on all its decisions. 54-4 Senator Bellemare: When you have only two parties, then one always has the absolute majority. When you have three parties, the chance of that is less, so you have to compromise, negotiate and become, at the same time, less partisan. 55 Mr. Mendes: That is basically what the hope was. In some respects, what we are doing right now is saying that you are right in the opening statement: It's not modernization. William Faulkner said, "The past is not dead. It's not even past.'' We are now recreating the original intention of the founders of this august body. 56 Senator Eggleton: I want to come back to this matter of the independence and autonomy of the Senate from the House of Commons. The question was raised by Senator Massicotte over the fact that a political party in the Senate joining national caucus or being part of a national caucus includes the MPs. I've been a member of the national caucus both as an MP and in my early years as a senator. The leadership of the parties, the Prime Minister and the opposition leader are on the House of Commons' side. The leadership is essentially there and is the predominant influence within that caucus. So I question whether it's correct to say that it can be independent and autonomous if, in fact, members of the Senate party are members of a national caucus. 57 I would further provide as evidence to get your response is the fact that during the last Parliament of this country, sober second thought was greatly eroded. It virtually did not exist. There was no government legislation in that whole Parliament that was amended without the permission of the other side—without the permission of the place across the street where the Prime Minister's Office is located. No legislation whatsoever. There were a couple of private members' bills amended but no government legislation. This is the influence of being part of a national caucus. 57-1 How do you call that independent and how do you call that continuing to advance over second thought? 57-2 Mr. Mendes: The answer you're expecting us to give is obvious. If you're not exercising independent sober second thought, you're not fulfilling basically what the Senate was all about, period. 58 Senator Stewart Olsen: Thank you, gentlemen, for appearing. We're very grateful. I tend to lean more towards the submission from Professor Thomas, which is a practical way of moving forward—a lot of good, practical issues. I'm not a constitutional lawyer; I don't go that way, but I do like what you said about a way forward. 59 One thing I've noticed is that in your submission you give a lot more power to the Speaker, thus removing it from the leaders of the other caucuses. How do you see that working? I would welcome comments from everyone else. 59-1 Mr. Thomas: You can control the affairs of the institution, but you have to have a presiding officer. If you want to rename the person, I don't think that's a big difference. You could do that. We've learned that with an elected Speaker in the House of Commons, where partnership is more intense, there are limits to how far he or she will go in adopting a truly impartial role as a referee of the proceedings. 60 As the Senate becomes less organized along party lines, there will be a requirement to ensure decorum and progress on the agenda, so the presiding officer has a role to play with a deputy speaker and with a set of advisors from all the different groupings within the Senate. Some will be under partisan labels, some of them will be like-minded senators, and some of them will see their roles mainly in regional terms, speaking on behalf of the region from which they come. 60-1 I think that is needed. The government representative has a job to try to steer government business through the Senate, but they will have to rely far more on negotiating with a multitude of not political parties but groupings to get legislation passed and the estimates process done. 60-2 Back to the bit on partisanship, often in Senate committees, away from any media attention, of which there is often little anyways, it becomes more senators relating to the evidence they've heard and less to what they heard in caucus the previous week. They are prepared to do that. I always think that sometimes we try to stereotype senators as if it's a kind of mindless variety of partisanship. It's not usually that. 60-3 Senator Tannas: This has been a great discussion. 61 As we turn our minds to the practical steps we need to take, I'm looking down your list of 18 or so recommendations that came out of the symposium. One of them spoke specifically to the majority/minority model. I'm conscious of the fact that the symposium was in January 2015 and we didn't have the whole thing we've got now with the government representative and absolute independent senators being appointed. For many of us, the penny maybe hadn't dropped that we were going to have a majority of independent senators inevitably. 61-1 Is there anything in that U.S. model that you think we ought to consider? If you've been watching the hearings, you see that we're headed down a path of cross-benching, and all of that, per the House of Lords. Is there anything in the U.S. model that we ought to take into account as we make our decisions and recommendations? 61-2 Mr. Mendes: It's more to be avoided, and the Supreme Court actually referred to this. It said one of the reasons it declared the consultative elections unconstitutional was the fear that it would lead to a deadlock. In other words, the better model is what's happening with the U.K. House of Lords. Even then the caveat I give is that we're very different. We have completely different structures. The one issue Meg Russell raised yesterday in response to questions by Senator Joyal is that we are facing something new, but come up with a logic that deals with the new challenges you're facing. 62 My suggestion starts with the most important committees that you have in the Senate, which are Internal Economy and Selection, somehow dealing with the still unresolved issue of how to create an independent mechanism overseeing finances and expenses so that you don't have an incursion into the independence of the Senate. Those are the critical first steps I recommend that you focus on. 62-1 Mr. Desserud: I can't think of a good thing to come out of the American model that would work in this case. The one thing I do like, which is tangential to your question, is how well they use their committee system in the public. That would be an excellent model, which I've mentioned before, but that's not what you're speaking of. That's the one thing I would take from it. 63 Senator Cools: I would like to welcome you splendid scholars to our committee. I thank you for all your good research. I've read a lot of it and a lot of your work. I thank you for that. 64 I'd like to begin by stating two things: First, I do not believe that the problem is partisanship. Parties have served a very useful purpose. They came into existence as a mechanism for coalescing opinion by principles and ideals rather than by private interests. The Senate today is in danger of fracturing into many different groups of people, which concerns me about this process. 64-1 The problem has never been partisanship. The problem is that in recent years, certain partisan leaders have taken unto themselves huge powers over individual senators that they're not supposed to have, that they should not have been exercising, but they have been allowed to do. More members have been expelled from caucuses in the last five years than in many previous years. Leaders shy away from disposing of members because at some point they would need their votes. 64-2 I could easily name to you 10 people in the last many years who have been damaged. Those three senators who were suspended are deeply damaged people. This whole thing that you can dispose of a supporter like that, that is new, and that is the source of the problem. 64-3 I have watched for the last 32 years as senators allowed these individuals to take these powers and to use them quite brutally. That is not a partisanship problem. It may be megalomania; it may be psychopathy. It could be many other things, but it is not partisanship. 64-4 We have to work our way through all of this, understanding that the minds of the houses are common-law minds; their casts of mind are those of the common law. 64-5 We have to look to these old, ancient principles. I would say to you that these are old institutions and they rely on practices, precedents and principles, and they do not take easily to novelties. 64-6 I do not know what a government representative in the Senate is. I know what a government member of the Senate is. We are not a foreign country. There's no need to send a representative to us. 64-7 Here, again, this is a term that has been pulled out of the sky from somewhere, with very good intentions I have no doubt and very high levels of motivation, but I really do not know what it means. 64-8 Further, I would like to point out to colleagues that from 1689 onwards, particularly under William III and the Bill of Rights 1689 which, as we know, was one of the bills of settlement of the English revolution, we had— 64-9 The Chair: Let's stick with this century. 65 Senator Cools: William and Mary were joint sovereigns. I did not forget that. I was just talking about William, because William was a heavy adjudicator on these cases. 66 I am saying that in that century, the King surrendered certain powers, especially in respect to what is called the "legislative powers of the King.'' One of those powers that he surrendered was the King's personal, direct control of the houses. In those days there were always ministers, but there was no cabinet. The King agreed that as he begins to form his ministry—Mr. Walpole was the first Prime Minister, in a way; this is responsible government—he will choose his government, his ministry, as it later becomes, from the members of both houses. Those government members, as ministers, would be expected to lead his business and do his business in the houses, and they called this responsible government. 66-1 I have the sincere belief that there's no finer system and that no finer Constitution was ever devised by the hand of man than the Constitution of Canada. I've made it my business over the years to study very carefully the source of this Constitution and the great principles, and I see no reason why we should be abandoning those principles. As a matter of fact, I think we should be refreshing them, taking some of them out, dusting them off, and kissing and embracing them because it is the most fantastic thing. 66-2 You understand that these men achieved this agreement and settled certain issues they thought for all time, and they did this against the background of a failed state—a failed country, really—that was trying to annex Canada as part of their civil war. 66-3 I'd just like to say thank you for your work, but I think what you're telling us is stay with the first principles. 66-4 I think that is what I'm hearing from you Professor Mendes—stay with the first principles. 66-5 Thank you very much. 66-6 The Chair: Now, our final questioner. 67 Senator McCoy: It seems to me that we are talking around and about a subject of power and abuse of power, so I wanted to quickly ask for your opinion of George-Étienne Cartier who, in the parliamentary debates on February 7, 1865, talked about having a third entity. He said that if you have got only two, one is bound to be strong and one is bound to be weak, but if you have a third, then you have a balancing mechanism so that you avoid the abuse of power but you still allow for a full interchange of opinion. Very briefly, what would your opinion of that be? 68 Mr. Mendes: It wasn't only George-Étienne Cartier. It was actually all the original drafters from both sides of the aisle. George Brown and Sir John A. Macdonald felt the same way: They were worried about the historical examples where democracy would lead to tyranny, so they wanted the Senate to be truly independent. It wasn't only George- Étienne Cartier. 69 Senator McCoy: It's not just the Senate, though; it's how we conduct ourselves within the Senate. We need to be aware, I think. We are saying that we should institutionalize a mechanism to prevent tyranny in the Senate. 70 Thank you for your time. You're been very helpful. 70-1 The Chair: Professor Thomas, do you have a comment? 71 Mr. Thomas: I have two quick points. 72 Going back to the comparison to the U.S. Senate, the most powerful legislative body in the world, it leads to deadlock and institutional buck-passing, I would call it. Senate committee chairs are too powerful and can't be overruled. 72-1 The final word I would say is that modernization is not one exercise in a given calendar year. It has to be an ongoing activity. It will require collective commitment to the task and patience, because it's not going to happen overnight. 72-2 Thank you very much for allowing me to share my views. 72-3 Mr. Desserud: Keep in mind that in 1867 there was no unity of party, so people from New Brunswick were not seen to be in the same ideological camp as someone from Upper Canada. There was a diversity already built in that has perhaps dissolved, but it was assumed that it would not be dissolved. It was assumed it would stay. 73 The Chair: Thank you very much, panel. This has been an excellent discussion. 74 Honourable senators, we'll have two meetings on Monday. For the first meeting, we will have Lord Hope, Convenor of the Crossbench Peers in the U.K. House of Lords. We'll take a break for an hour and come back to attempt to forge a consensus, perhaps, on some of the potential recommendations. So get good rest over the weekend. 74-1 We will provide you with some of these more obvious recommendations, and hopefully we'll be able to go through them and pick some so that we'll be able to, as I say, forge a consensus. 74-2 Thank you very much. The bells are ringing. 74-3 (The committee adjourned). 75
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