 CANADA The Special Senate Committee on Senate ModernizationConsideration of methods to make the Senate more effective within the current constitutional framework: Issue 6 19th Meeting, October 19, 2016 Witness: Hon. Senator Claude Carignan, P.C., Leader of the Opposition 0 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. 1 Senator Tom McInnis (Chair) in the chair. 2 The Chair: Honourable senators, I call this meeting of the Special Senate Committee on Senate Modernization to order. Today's meeting is in public. 3 Over the next few weeks we will continue to hear from the leadership of the different Senate caucuses and groups. In my invitation to each of them I asked that they reflect on the following questions; each of the leaders have been posed the same questions, and they are: First, do you believe that political party caucuses have a role and a future in the Senate? Second, does a modern Senate need governmental representation? Third, does a modern Senate need official opposition or opposition groups? And finally, what changes do you feel are required to our rules or practices? 3-1 At our last public meeting we heard from the Honourable Senator Peter Harder, Government Representative in the Senate. Today I am pleased to welcome our next witness, the Honourable Senator Claude Carignan, the Leader of the Opposition. Senator Carignan, please proceed. 3-2 The Honourable Claude Carignan, P.C., Leader of the Opposition: I thank everyone for the invitation. This presentation is in response to the committee chair's request for my thoughts on the role that the government, the Government Leader, the opposition, the Leader of the Opposition, and the caucuses in general, should play. It also gives the committee some additional avenues for reflection. 4 I'd like to preface my remarks with a cautionary note. You've invited me in my capacity as Leader of the Opposition, but I should specify that my remarks today will be personal; they are not made on behalf of any other member of the Conservative group, and no one else is bound by them. We are all independent, and we each have our point of view, notably on the subjects associated with potential changes to the Senate. 4-1 Therefore, I think that when we talk about changes to the Senate, it's important that we consider how we approach the questions about Senate modernization, and that we identify certain criteria that can guide us. There are a few questions we should ask when contemplating a change. 4-2 My Brief advocates changes in our Senate's roles which, consequently, calls for changes in the way it functions. To my mind, the MDRN Committee has made, and is still making, a serious error by preoccupying itself with functioning while up to this point has ignored its role. That has put the cart before the horse. n4-2
One criterion, quoted in my Brief's very first paragraph, is that senators, as stated in their writ of summons, are appointed "for the purpose of obtaining your advice and assistance in all weighty and arduous affairs which may be the State and Defence of Canada concern." (my source). The Brief goes on: "One weighty matter confronting Canada is the perillous state of our democracy. Another is the wellbeing of Canadians in a global environment over which we have, at best, but little control. In fact, even our very own democracy may be further damaged by an apparently widening trend to populism brought on by fear and hatred." One only has to look at what is happening in United States. n4-2A At the time of this writing (November 3, 2016), six meritorious people have just been appointed to the Senate and thereby bringing the number of senators up to a full complement of 105. We should bear in mind, however, that the process by which senators have been recommended by a Special Advisory Committee on Senate Appointments and subsequently appointed was flawed from the very beginning by, for one, not making it explicit just what, precisely, is meant ny "merit." I raised this point in my essay. n4-2B Secondly, I have a bone to pick with how the phrase "gender balance." It subverts, to my mind, the striving for gender equality. Gender balance is interpreted as a numerical balance; gender equality, to my mind, is judging candidates for what they can bring to the task they are expected to perform, regardless of gender. In other words, I perceive that gender equality has been made secondary to gender balance. Quoting from my essay (ref.: n4-2C "When we as Canadians think about diversity, we typically think of multiculturalism, i.e. differences in race, culture, religious beliefs, those sort of things. This kind of diversity is called "identity diversity." It also includes gender and socioeconomic status. Note that I did not mention educational/professional attainment for that comes under the rubric "cognitive diversity."... It is cognitive diversity rather than identity diversity that makes diverse groups more innovative and productive. Identity diversity, to be sure, training, experiences, and interests are important drivers for cognitive diversity; they contribute to how people see the world differently and how people think differently about specific problems." n4-2D Senator Housakos told reporters about the new appointment process: "This is the biggest con job the Liberals have done in this country since the sponsorship scandal." I wouldn't be this harse. I tend to perceive that the notion of identity diversity is easier to swallow by the electorate than the notion of cognitive diversity, hence makes for a better political sales pitch. n4-2E Firstly, will the change help the Senate better fulfil its mission? Secondly, will it enable the senators to do better work? And thirdly, does it comply with law and convention—including Canada's constitutional bargain—and with the Senate's mission? 4-3 By not having made explicit the mission of our Senate as a whole and that of our senators individually, the debates about these questions have not been given a solid foundation. And this, in turn, makes it difficult to think matters through thoroughly, logically. n4-3
A custom that limits the quality of work done by our senators is the way debates are conducted. As shown in my essay, here, a great deal of time is wasted by poor—or lack of—planning of debates. I referred to a debate about Senate reform that stretched out over many sessions. The first three of those sessions were an utter waste of time because of a failure to arrange for an expert on constitutional matters to speak first! Talking about loose cannons ... n4-3A The purpose of the changes is not to favour the government of the day, or any political party. Nor is it to make the Senate so ineffective that it becomes pointless. We should be careful with efficiency arguments. I caution you about such arguments, because democracy is sometimes slow and difficult. When we believe we've formulated a perfect proposal that responds to an urgent need, it's easy to think that Parliament should adopt it immediately. 4-4 It would seem, democracy as we currently know it is too tardy for these times of such an accellerating pace of change. Somehow, thought ought be given to get our currently anaemic democracy up to speed. And with our Senate professing to be Canada's think tank .... n4-4
People who present contrary arguments aren't bogging down the discussion, acting in bad faith, or motivated by partisanship. The fact that a debate takes longer is not indicative of malicious motivation. Often, the objective is to draw Canadians' attention to a subject and help them get the most accurate possible picture of it. We should be cautious with things proposed in the guise of efficiency or greater collegiality, and should take care not to restrict parliamentarians' right to defend ideas different from those of the government of the day. 4-5 It's also important to be cautious about the non-partisanship argument. The Senate is a forum for political debate, where opposing views confront each other. Each senator wants his or her view to carry the day. So the debate does become partisan in the sense that each person has a horse in the race, but let's be prudent with arguments that would turn the Senate into a sanitized chamber, bereft of its partisanship. There is a risk of emasculating the Senate—of making it a powerless debating society, disconnected from the true political issues of the day. 4-6 Let's dissect that last sentence:
It is my understanding that disconnecting the discussions in the Senate from the true political issues of the day is an objective, not to be regarded as a risk. Those "true political" issues are the business of the Commons. Sober, second thought implies, to my mind, resolving issues more than debating (or quarreling over) issues. Of course, an intellectual (non-political) debate is a tool for for resolving issues, but it is not the only tool. Of course, debaters' mindsets may be coloured by social leanings same as political mindsets are coloured by such leanings. But, it seems to me, just as debating is a subset of resolving, so are political views a subset of social leanings or social conscience. n4-6 In his testimony, Senator Harder said the Supreme Court of Canada has noted that the Senate is less partisan than the House of Commons. But the Supreme Court never called the existence of political parties in the Senate into question. I find it hard to see how one can argue that senators should cut all ties with political reality, or how one can go even further and say that senators should never have been in the partisan arena. Case in point: election results change the roles of Government Leader and Leader of the Opposition in the Senate. The public speaks, and the Senate must adapt to the change by changing the roles of its members. 4-7 As I mentioned before, I perceive Senator Harder's current role as an intermediary between both houses as a temporary fix until such time a truly non-partisan person is made, in Senator Harder's words, "the face of the Senate to the government and the face of the government to the Senate." n4-7
Let me read you a few excerpts from a paper by constitutional scholar Gil Rémillard, an eminent law professor who was also in partisan politics and who, as a Liberal minister in Quebec, was an important player. His remarks can be found in Senator Joyal's book entitled Protecting Canadian Democracy, at pages 108 and 109. I quote: 4-8 "Of all the core functions of Parliament, the most fundamental to the exercise of democracy is debate. It is through the process of debate that all other functions are performed. Parliamentary debate serves to draw public attention to policy questions, provokes an exchange of ideas and the reflection that is essential to the formulation and implementation of policy for the country. Open and full debate guarantees that the interests of the various sections of society are taken into account before legislation is enacted or a decision made. The process of debate itself is as important as the decision taken. Debate fosters the development of policy options and helps to legitimize the ultimate decision for those who may have advocated a different outcome. 4-9 "In one of the most famous Canadian constitutional cases, former Chief Justice Sir Lyman Duff described public debate as essential to the proper functioning of Parliament. The institutionalization of open public debate, he found, was a key constitutional principle evident not only in the provisions of the Constitution Act, 1867, which established Parliament, but in the preamble as well. 4-10 "Under the constitution established by the Constitution Act, 1867, legislative power for Canada is vested in one Parliament consisting of the Sovereign, an upper house styled the Senate, and the House of Commons.... 4-11 The preamble of the statute, moreover, shows plainly enough that the constitution of the Dominion is to be similar in principle to that of the United Kingdom. The statute contemplates a parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derive their efficiency from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack on policy and administration and defence and counter-attack; from the freest and fullest political proposals." 4-12 In other words, each chamber makes an important contribution by guaranteeing public debate on legislation and on government policies and activities in general. Just as Parliament's function of promoting public discussion would be incomplete without the debates of the House of Commons, so too would the work of Parliament be incomplete without the "sober second thought" of the Senate, which can carefully scrutinize those policies that, as a result of their administrative complexity or significant impact on the public, require further reflection before enactment. It is in this respect that the role of the Senate, when properly played, truly complements that of the House of Commons. 4-13 It's a lengthy quote, but I feel Professor Rémillard aptly expresses my vision of the role of the chambers, and the role of Senate debates. 4-14 Well, who am I to pipe up against an eminent law professor, a former Chief Justice, and the Constitution Act and its preamble? But before retreating from this issue, why not first recognize there is a difference between trying to prevail in a debate and trying to refine the debate toward an outcome of greater value to—in parliamentary debates—the populace as a whole. (A distinction somewhat akin to that between quantity and quality.) n4-14
Secondly, let's recognize that a debate does not need to be an exercise conducted orally. My essay and Brief, both, dwelled on co-operative authoring, which is a way of discussing subjects away from the clock, away from instant responses and thereby allowing deeper thought, a better verifying of facts and weighing of opinions, and permitting the arriving at a better understanding among cognitively distinct people. n4-14A At this point it is well to distinguish between debates held when the Senate attends to it legal role and the debates held as part of the Senate's investigative role. n4-14B And as for its legal function, a modernized Senate serves not to oppose bills from the Commons, but to improve upon them—other than in some exceptional circumstances where the Senate arrives at the conclusion that a Bill sent up for review is outright harmful to Canadians as a whole. This fact colors a debate more as a thoughtful discussion rather than a "propose-oppose" affair. n4-14C My first question is as follows: What is the role of the government group in the Senate? The Senate is the legislative chamber that complements the House of Commons, but it has a role to play in the study and amendment of bills, and government bills in particular. Accordingly, the government must have representatives and tools that enable it to propose and defend its bills, and move its legislative agenda forward. In addition, senators must have the opportunity to question those government representatives about those bills. It's the government's presence in the Senate that makes this dialogue with the House of Commons possible when there's a divergence of views between the House and the Senate. 4-15 And what is wrong with arranging for a representative from the Commons to make a case for the Bill in our Senate? What is wrong with designing a mechanism by which the Speaker (one elected by the senators) can permit the representative (or some representatives) to participate in the debate? n4-15
Naturally, the Senate also has an investigative role. For this reason as well, the government needs to be represented in the Senate, and its representatives must be able to answer senators' questions. 4-16 Thirdly, the Senate is the voice of regions and minorities that have no voice. This means the government must have representatives in the Senate who can liaise with senators and report their grievances and other remarks to the government, as Senator Harder has often suggested. 4-17 To conclude on the point of government representation in the Senate, the fact is that, for the Senate to fully play its role, and for senators to do their work better, there must be a government group in the Senate. I would note, in fact, that after flirting with the contrary idea, the Trudeau government came to the same conclusion when it set up a small partisan group that is present to defend the government's policies and represent the government in the Senate. I noticed this week that it's been given the abbreviation GRT, for "Government Representative Team." It's a team that represents the government, and I think the move is appropriate and desirable. 4-18 I never heard of a Government Representative Team and wonder who its members are. Is there any public information about this team? n4-18
As for the opposition's role in the Senate, while I firmly believe there must be an organized government group, I also believe that, as a corollary, there must be an organized opposition group to facilitate the organization of debates. This approach is in keeping with historic traditions and democratic values, gives those who oppose the government the democratic means to make their case, and makes the Senate more effective by enabling it to play its role fully. 4-19 The presence of an organized opposition facilitates the organization of debates in several ways. Adversarial debates are a fundament of our parliamentary system. It is easy to understand why having two structured sides favours the organization of adversarial debates. It ensures that both sides of the coin are seen. Furthermore, it's often said that enlightenment comes when ideas collide. In the face of a partisan government group, those who do not adhere to that government's philosophy must be able to come together to state their case. 4-20 The presence of an organized opposition is also in keeping with historical traditions. The Senate is based on the Westminster model. The Fathers of Confederation chose this model because they thought it was democratic, effective and the best way to represent the interests of the populace. They deliberately chose to structure the Senate on this model, with a government side and an opposition side. With the Royal Proclamation of 1867, the government of Sir John A. Macdonald appointed 25 Liberal senators who formed a caucus with a Leader of the Opposition named Luc Letellier de Saint-Just, a ferociously partisan Liberal. 4-21 Yes, and there was not a woman among them. Should we abide by historical tradition? n4-21
The Senate's originators could just as well have structured the Senate differently, by appointing only senators who are unaffiliated with a political party, and by having neither a government side nor an opposition side. But this they did not do. The Fathers of Confederation did not want an advisory committee; they wanted a legislative chamber where debates take place. I think it's their wisdom that led them to make this choice. They understood that organizing a parliament into two opposing sides was the best way to ensure that democratic values are protected, and that the Senate can play its part fully. 4-22 The presence of an organized opposition also respects democratic values. Adversarial debates are not the exclusive preserve of Westminster parliaments. It is inherent to democracy that viewpoints opposing that of the government can be expressed within a parliament. I have found no examples—if you have, please let me know—of a parliament without an organized opposition, except, of course, dictatorships. It is obvious that, in a democratic debate, the two sides should be organized and able to express their different points of view, especially those which diverge from the government's viewpoint. 4-23 The role of the Loyal Opposition in a democracy is vital. That role is to represent those who are opposed not only to a bill, but also, to the government's general policy orientation. The opposition makes it possible to channel opposition to the government that is not expressed in the streets, but through Parliament, in a civilized manner, drawing a distinction between the government's legitimate desire for change, and a revolutionary desire for regime change. The presence of an opposition in Parliament also lets those opposed to the government know that, ultimately, even though the government can use its majority and decide as it sees fit, at least the minority will have had the chance to express its view and to be heard and defended, which is also an important aspect of the process. 4-24 Obviously, the Senate also acts as a counter-weight in relation to the substance of bills. This role needs to be stressed when looking at the parliamentary system in its current form. It is well-known that the prime minister is very powerful, and that he controls the executive, which enables him to control the House of Commons and therefore win the votes there. We must therefore ask what would happen to the counter-weight in relation to the substance of bills—a counter-weight that can have a major influence on the Canadian public, and can make important changes. 4-25 You might respond that this is the media's role. Sure, the media can draw people's attention to a matter, but at the end of the day, if the government decides to abuse its power, it will be able to do so anyway. You might retort that the courts are there for that. Sure, they can act when the constitutionality of a law can be reviewed, but if the radical changes are being made within the constitutional framework, the last bulwark against such radical changes contained in a statute is the Senate, and I think it's important we be able to play that role fully. 4-26 How could the Senate play its role as a legislative chamber if opponents to a bill are systematically disadvantaged vis-à-vis the government side? Are we really to believe that the government leader will act as an honest broker regarding government legislation and will provide all senators with facts and arguments against the government's position? We can look at the research briefings provided by Senator Harder to see that only one side of the coin will be offered by the Government Representative team, the GRT, and it's normal. It's their job. How can the Senate do its job of sober second thought if the government alone can dictate how and when debates will be held? 4-27 How can the Senate play its role as the "grand inquest of the nation," as stated by the Supreme Court and quoted by Justice Binnie in his report, if the opposition—those who are by definition most interested in making the government more accountable—does not have the rights and privileges allowing them to ask the tough questions? How can the Senate adequately represent the minorities and those who are powerless to speak for themselves if the government can silence them because it is the only one with resources and tools? 4-28 Let me say a word about the ad hoc opposition model advocated by Senator Harder. In that model, only the government would have specific resources and tools. The idea that the opposition should organize day by day, based on topics, strikes me as impracticable and anti-democratic, and flies in the face of our traditions. How could a credible opposition to a bill be mounted if you have just a few days to approach the roughly 100 senators who are neither chairs nor members of the government team, while the government group is organized and supported by the entire ministerial and bureaucratic machine? The government would be the only one running the show, and the Senate would no longer play any useful role. 4-29 I am not saying that there is no logic in Senator Carignan's presentation, but his train of reasoning is on a track distinctly different from mine. n4-29
The Senate proposed by the government is a way to kill opposition to the government. It turns the Senate into one big and powerless advisory committee, more akin to a group of bureaucrats than legislators. That was obviously not the intent of the Fathers of Confederation. It's clear to me that an organized opposition, with access to resources and tools, is necessary. 4-30 Here are a few guiding principles that the Senate should follow in making decisions about the presence of an opposition. Firstly, there needs to be a principle of reciprocity with the government. This means the opposition group should have resources and tools substantially equivalent to those available to the government group, as is currently the case under our rules and practices, since that is in keeping with the principles of parliamentary democracy. Our Liberal colleagues can confirm that the Conservatives have not used their majority in recent years to crush the Liberals or sweep away the opposition. On the contrary, the opposition's resources were increased. The Liberal opposition was treated with respect, and always had the space necessary to assert its point of view. 4-31 Another principle is that the opposition must be credible. 4-32 The opposition in the Senate must be credible. It cannot be seen as a puppet of the government. Therefore, the official opposition must be composed of senators who oppose the general philosophy of the government. The easiest way is to recognize that the official opposition should be linked to one of the opposition parties in the house. This does not mean that the opposition may not agree with a specific element of the government's agenda, or that other senators who support the general philosophy of the government of the day cannot oppose a specific element. 4-33 Thirdly, the consensual nature of changes should be respected. Changes to the Rules must be based on a consensus, except in extreme cases. I stress that when the Conservatives had a majority in the Senate, they made no changes to the Rules without achieving a consensus. 4-34 The Rules of the Senate have evolved over the years to make the institution better. Right after Confederation, there was practically no structure to debates. This slowly evolved in order to strike a balance between efficiency and democratic rights. Major change, most importantly in 1906 and 1991, occurred after major crises when the Senate was more or less paralyzed. Some will say that the opposition abused its powers, but now, what would justify the destruction of the opposition? 4-35 I believe that the work that the Senate has done this spring, especially on Bills C-7, C-10 and C-14, shows that the system we have in place now actually works and that an organized opposition helps make the Senate more meaningful and effective. 4-36 Colleagues, I invite you to be careful. Shutting down the opposition in the Senate under the pretext that opposing the government is being too partisan is clearly anti-democratic. And this scenario will have grave consequences. After the opposition in the Senate, who would be the next victims of this phony war against partisanship? Caucuses in the house? Political parties? 4-37 Lastly, I'd like to talk to you about the role of the caucuses. Is there room for parliamentary groups in the Senate? I believe there is. I'm pleased to see that the idea of having 105 free agents has few advocates. A consensus appears to be developing around the idea that senators should be able to form parliamentary groups. Let's explore why. 4-38 Firstly, it would help the Senate function. As Senator Harder has noted, groups, especially groups that promote the presence and participation of senators in debates and committees, help the Senate function better. The role of the caucuses also helps senators work better. Resources, knowledge and experience can be shared, and people can be mentored. Parliamentary groups make it possible to exchange viewpoints, to better understand the positions of colleagues with special experience, and to better comprehend how a public policy would influence a region or population group. 4-39 As Senator Joyal explained in his remarks to Senator Harder, the presence of caucuses will reduce the government's temptation to divide and conquer. Senator Harder remained silent on this aspect, but in his view, caucuses would merely be administrative structures, and so would an organized opposition. The senator does not seem to believe in structured and organized parliamentary groups. With respect, I find his vision too bureaucratic, and I think it would turn the Senate into a big, powerless advisory committee. 4-40 I am dealing with this point in a comment in the next transcript, in par. n10-7. n4-40
The role of caucuses is also important when we examine issues associated with the organization of parliamentary groups. This raises the question of whether parliamentary groups that are not necessarily affiliated with political parties are feasible. The issues raised are as follows: On what basis should senators be allowed to affiliate, if not their membership in a political party? Furthermore, should participation in a group be mandatory or optional? What resources and tools should be made available to the parliamentary groups? Those are three important questions, but before we answer them, I'd like to address the issue of regional caucuses. 4-41 I've given some thought to this concept of regional caucuses. I share the worry that many of you have expressed about the Government Leader's idea in that regard. I won't revisit all the arguments that have been made against the concept, but I'd like to add a few. 4-42 First, it is wrong to say that regional caucuses are respectful of the original Senate. The Senate was organized in political caucuses from day one. As I said earlier, that was a deliberate choice of the Fathers of Confederation and other political actors of the day. The original Senate was Conservative on one side and Liberal on the other. We may think this should be changed now, but, please, let's not be revisionist and propagate a myth about what the Senate was in 1867. 4-43 In addition, I cannot agree with the idea that the Senate must be divided into regional caucuses if it is to play its role as defender of the regions. The Senate is a defender of minorities. Should we have a caucus based on gender, religion, language, sexual orientation? That would be ridiculous. Should we split into francophone and anglophone caucuses? That's unthinkable. But that is what they do in Belgium, where certain parliamentary groups are divided by language. In Canada, we've chosen to do things differently, because we understood the dangers of such a sectarian approach from the outset. We understood the benefits of parliamentary groups that help us iron out our differences, rather than exacerbate them. 4-44 What organizing principle should the senators choose, then? In a democracy, political parties develop electoral programs that are presented to voters, who make electoral choices accordingly. Therefore, it's normal that these same parties, which are represented in Parliament, carry out the debates and play the role the electorate has entrusted to them. 4-45 The model in which the parliamentary groups follow party affiliation is the most popular model in the world. Certain parliaments have more direct connections with political parties. In other cases, such as the European Parliament, the connection is more indirect, but I have been unable to find any parliaments where the parliamentary activity—the democratic debate—is not organized based on a general political philosophy that develops or defends a certain vision of society. Yes, there are independent, unaffiliated parliamentarians. There are groups like the cross-benchers in the House of Lords, which are more administrative in nature. But groups based on a political philosophy are a constant, and the reason is simple: these groups are natural, and they're legitimized by the electoral process. 4-46 It's worth remembering that, immediately after being ejected from the national caucus, our Liberal colleagues saw fit to regroup as a caucus. Despite Mr. Trudeau's assertion that there were no longer any Liberal senators, they formed a caucus under the Liberal banner. They showed their desire to maintain ties with their political family: the Liberal Party of Canada. They did this as a bloc, without dividing along regional or linguistic lines. This is an interesting reflex, because it demonstrates the need, on the part of many senators, to come together around common values, and pool their resources and skills. Their action was partly dictated by the message the electorate expressed in support of the Liberal platform. Based on all this, I believe it will be up to the senators themselves to decide with whom they wish to form a group. I don't see why they should be forbidden from forming groups based on their political philosophy. The freedom of senators should be respected. Should participation in a parliamentary group be mandatory? That is another sub-question. 4-47 I should stress that according to the model advocated by Senator Harder, the answer would be yes. Each senator would be forced to take part in a regional caucus. In exchange, the regional caucuses would be required to accept all senators from that region. I don't believe in a coercive model. I don't see how it can facilitate the management of the Senate. It's disrespectful of senators' rights, especially their freedom of association. Certain senators prefer to work alone, and consider themselves lone wolves. I don't share that philosophy, but I respect it. People should not be chained to groups of varying artificiality. Each person's freedom should be respected. 4-48 What resources and tools should parliamentary groups have? I think that while membership in a parliamentary group should not, as Senator Harder proposes, be mandatory, it should be encouraged. I firmly believe in the virtues of parliamentary groups, and I think they should have resources to organize their work and coordinate their activities, and specific tools to organize their debates. This would not necessarily be at the same level as the government and the official opposition, since those two groups have a precise role to play, but the other parliamentary groups should also have formal recognition. Each group should be free to structure itself as its members wish, and to discipline its members. Once again, the freedom of each person should be respected. 4-49 I was told that I had an hour and forty-five minutes. Accordingly, the presentation I prepared is roughly 30 minutes in length. There are points that I would like the committee to consider, and that I think should be stressed. The report that the committee recently submitted is a good basis for discussions about the changes that might be made to the Senate. However, I have a few suggestions. 4-50 My first suggestion is about question period. Asking the government to account for its actions is an essential senatorial function. In fact, it's a mandatory rule in several deliberative assemblies. In municipal politics, where I come from, a question period is essential to the validity of a meeting. Without a question period, a municipal council meeting is considered invalid. The reason is that it's an essential element of democracy. 4-51 We might review the question period rules, notably regarding the presence of ministers, the length of the question and answer period, and the order of precedence, and make recommendations. And we should review the rules concerning written questions. Should there be a time limit for tabling a reply? Yesterday, a written reply was tabled in response to a question about the time available to the government to reply to a written question. Yesterday, in its reply, the government stated that 45 days would be a reasonable amount of time for it to provide the information requested. I think we should review this aspect in our rules, and specify that, to better ensure responsibilities are met, the government must reply within 45 days. For the moment, there is no time limit in the Senate for tabling a reply, whereas the House of Commons specifies a time limit. 4-52 As we know, committees are a treasure of the Senate. The Committee on Modernization should consider the role of committees within our institution, and the expectations we should have about the way they function. In particular, the committee should consider the following questions: Should the committee's mandates be reconsidered? The mandate descriptions should be modernized to better reflect 21st century Canada. Certain challenges facing our society should be included in the committee mandates. Should there be more committees, each having fewer members? This would increase the number of studies and provide more direction with respect to everyone's work. Should committees have special budgets to hire researchers? This request, or suggestion, is often heard. It's an issue we should consider. Should committee reports allow for the expression of dissenting views? Should committees be able to meet while the Senate is sitting? Should committees be able to meet by telephone in the event of an emergency? How might committee chairs use question period more effectively to report on their work? 4-53 To better connect with citizens, we should make more use of the petition system. If a written or electronic petition obtains a certain level of support, the subject matter should be brought up in the Senate, and, if necessary, studied in committee. It would be a good way to get in tune with the Canadian public, and to bring debates to the chamber that are topical in civil society, even if no critics have been assigned to the topics in the Senate. 4-54 I would also like address the importance of our regions. We're seeking ways to listen to the regions better. I am pleased to see that the interim report's recommendations include the idea of systematically including regional impacts in committee studies. When a bill has a special impact on a region, it would be an excellent idea to attach a note to the report. And one additional element should be added to this initiative. For example, when a bill has a special impact on the provinces, why not invite representatives from the provinces, from intergovernmental affairs ministries, or from provincial health ministries, to testify before a Senate committee of the whole about the effect of the policy or bill? It would give the provincial ministers the opportunity to express their views, and would enable the Senate to comprehend the importance and the impact of the bill on the various provinces. 4-55 I also think we should consider creating regional senate commissions for each of the four regions. This would help us keep in touch with the regions and hear their concerns, whether they be economic, social, cultural or community-oriented, in order to better understand the needs of the Canadian public. These commissions could be made up of senators from those regions. They could meet publicly in their region once or twice per year, to hear from groups about topics of interest. Hearings could be held in more than one city in each of these regions. Each Senate commission could choose the subjects to be discussed, and report to the Senate on their studies and observations. 4-56 In conclusion, the changes we make to the way our institution functions must be considered with great care. Long-term effects are involved. In some cases, these changes call conventions and approaches into question that have stood the test of time. We should prioritize changes that will improve transparency, strengthen the Senate's role as counsel, add to debate, and promote better relations with the regions, and a closer knowledge of their concerns. It can be tempting for someone to come on the scene with a mission of change and seek to turn everything upside down and bring a 150-year-old institution to heel. But will Canadians be better served by the Senate because of those changes? 4-57 We must take care not to reduce the Senate's role to a group of independent pseudo-experts who talk and make suggestions, but who have neither the resources nor the tools to act effectively, nor any way fully to play their constitutional role to amend bills. We must make sure not to emasculate the Senate to the point of making it one big advisory committee. 4-58 The Westminster model has proven itself, and can certainly be perfected. But it makes no sense to discard it before finding something better. During Senator Harder's testimony, Senator McCoy gave the example of a Rolls-Royce in which the steering wheel is put on the other side. I very much agree with that point. But the Rolls should not be transformed into a horse-drawn carriage because that would be more romantic. 4-59 The changes made must enable the Senate to fulfil its role better. They must not be made to settle accounts between us, and settle accounts with the past. And, above all, they should not wind up reducing senators to silence, crushing the opposition, and putting authority over the Senate in the hands of the government by muzzling one of its guard dogs of Canadian democracy. 4-60 I will end my statement by reading you two quotes from John Diefenbaker: 4-61 If parliament is to be preserved as a living institution, His Majesty's Loyal Opposition must fearlessly perform its functions. The reading of history proves that freedom always dies when criticism ends. 4-62 And on a more succulent note, speaking of the concept of caucuses, here he is referring to the Conservative caucus: 4-63 What is the difference between a cactus and a conservative caucus? On a cactus, the pricks are on the outside. 4-64 In short, there are advantages and drawbacks to having caucuses, but I think there are more advantages. 4-65 What is the difference between a cactus and the Conservative caucus? On the cactus, the pricks are on the outside. 4-66 The Chair: I wouldn't remember. I wasn't around. 5 Thank you, Senator Carignan. As you can well imagine, there's a large list. Let me go through the list. We always start with our steering committee deputy chair. 5-1 There are many questions and we have about 50 minutes. Let's start with Senator Joyal, please. 5-2 Senator Joyal: Thank you, Mr. Chair. 6 Senator Joyal: Thank you, Senator Carignan. My first question is about your closing remarks. Thank you for your submissions this afternoon. Essentially, your presentation focuses on the opposition's role in the Senate as an essential element of vigorous debate, and an assurance that the Senate takes all dimensions, aspects and opinions into consideration. 7 The situation we're in is tied to the fact that the opposition needs tools and resources to fulfil its role. The first resource of the opposition is the women and men who comprise it. Sometimes, this resource is depleted by retirements, leaving the opposition short of human resources. Somewhere in the book—I encourage you to consult the chapter—it's clearly stated that the prime minister bears the responsibility to "man the opposition"—or so the sexist English expression goes—which means he's responsible for ensuring the opposition has sufficient human resources to fulfil its role. 7-1 You weren't in the Senate at that time, but when the Martin government came to power after several years of Liberal government, the opposition was no longer able to sit on each of the committees, and do the parliamentary work expected of an opposition in a democratic system. Are we not in a similar situation, where, eventually, the opposition, which must lead an organized existence in keeping with the Westminster model, will be so deprived of human resources that it's no longer able to fulfil its function? Who, then, will act as opposition? Are we not witness to a logic where, due to the repeated appointment of independent senators, the official opposition will exist only on paper, with three, four, six or seven individuals who won't have the physical ability to cover the field? 7-2 After all, unlike Great Britain's, our Senate has only 105 members. That's a fundamental difference. In Great Britain, the prime minister can add an infinite number of seats at any time, whereas in our system, as you know, the prime minister is limited by the number of seats available. As a result, there is a twofold pressure on the opposition in our system, that does not exist in Britain's system. 7-3 How can we ensure that the opposition, on each important bill, on each government decision, on budgets, and on government initiatives, is vigorous enough that democratic debate can continue? As you have said so eloquently, the credibility of a government is tied to the vigour of its opposition. The government controls the machinery and the votes, but in a democratic institution, it's the opposition that embodies the vigour of Parliament. How do you perceive the current dynamic, in which the independent camp is growing at an accelerating pace and the opposition group is slowly shrinking, and will eventually no longer be able to fulfil its role? 7-4 Senator Carignan: It's a long-term danger, so we must be conscious of it. For the moment, there is no short-term or medium-term threat. This is why the opposition should always have a special status, regardless of the number of senators it comprises. There is often talk of proportionality, of composition, of resources based on the number of people representing non-affiliated senators as compared to the number of caucus members. But I think the opposition should always have the means, regardless of numbers, at least in the short-term and medium-term. In the coming years, we will see whether the government changes its orientation. In fact, we learned this morning that it is changing one of its electoral reform orientations. The person who will be prime minister in eight, 12 or 16 years will be facing a major challenge if things continue as they've been going. It will be a constitutional change without a constitutional amendment, because changes contrary to the intent of the Constitution will have been made to the Senate's foundations. The question might have to be brought before the Supreme Court. 8 Senator Joyal: Given that we will have the largest group of independent senators in history, with all its human expertise and knowledge, would it not be possible to share the role of opposition from a human resource standpoint? Consider this illustration. As an opposition member, when you get to the office in the morning, your role is to oppose us. When we formed the opposition, our role was to oppose you. We are responsible for structuring the debate so other elements are added, and we can confront the government with its choices and decisions. Couldn't the unaffiliated group define itself an identical responsibility—the responsibility for raising the implications of a bill and for challenging the government to justify it? Otherwise, it's a divide-and-conquer situation, where the debate is crushed to bits. 9 The biggest headache with this situation is ensuring that the opposition not only exists, but exists in an ordered, structured, competent, and day-to-day way. It can't just be a question of coming forward when it suits you. We've seen what the cross-benchers do in London. They don't vote, or they vote in small percentages. They only show up when the situation matches their expertise. They have no collective responsibility to make the House function, yet that is the opposition's responsibility. That's an essential element of the system that will need to be faced. 9-1 Senator Carignan: Parliamentary groups must be formed around a certain affinity. It can be by conviction, rather than simply as a matter of administrative requirement. Based on this composition of parliamentary groups, in four years, or eight years, certain senators might come to grasp the need for the opposition to have a certain role, and to grasp importance of that role, and might form a group based on conviction, not just on the fact that they are unaffiliated. 10 Senator McCoy: Colleagues, I realize you all have questions, and, in light of the length of the presentation and the first question, I want to be very brief. 11 Senator Carignan, first, thank you for a comprehensive presentation, and I'm pleased to say that there are some points upon which we agree. I particularly agree with the fact that we should definitely have a Rolls Royce—at all times we should strive for excellence. So I appreciate the metaphor that you brought forward. 11-1 I'm also pleased that you referred to the Constitution, and, obviously, we all agree that we are working within, and subject to, the Constitution. Section 21 of the Constitution Act, 1867, says that there shall be a Senate and that it comprises 105 senators. In other words, we are not a corporation; we are a collective of 105 individuals. Then, of course, section I think it's 36 says that the Senate shall speak by a majority of voices. It always makes me smile because it's a Victorian statute, and they capitalize the word "voices." So it always makes me smile. 11-2 My question to you, very quickly, is: Do you agree that those sections bind us, and would you add, as one principle, at least, to those three that you pointed out that there is equality of senators, a fundamental principle that there is an equality of senators? The second principle is that, established by the Constitution, we speak as a majority, the majority rules in the Senate. 11-3 Senator Carignan: From a constitutional standpoint, the Senate has the duty or the ability to manage its own affairs, to organize itself and to ensure that it functions properly. It even has the power to discipline its members, and to declare that a seat is vacant. Furthermore, the Constitution, and constitutional customs, contain all the tools the Senate needs to fully play its role in the organization of debates. 12 Senator McCoy: I will leave it at that, in deference to my colleagues who have questions, because I know I'm going to have other opportunities to pursue these questions. 13 Senator Eggleton: Last week in the Senate Chamber, I introduced this committee's report on recommendation 21, which deals with the establishment of committees and the whole intent of bringing about this equality in terms of the senators. I pointed out, at the time, that the current circumstance has 17 positions occupied by people who are calling themselves "independent," who have also been referred to as "non-affiliated," whereas they represent 27 per cent of the membership of the chamber. 14 I introduced recommendation 21 from this committee last week in the Senate, and it deals with the committee structure. I pointed out, at the time, that, while those who are "independent" or also called "non-affiliated" by some, represent 27 per cent of the chamber, they are only 17 per cent of the positions on the committees. They partly got there because of agreement last spring involving you and Senator Cowan and others to free up some positions. 14-1 Senator Cools would bear in mind that I have the floor. Thank you. However— Senator Cools: Actually, I haven't said a word. Senator Eggleton: I can hear you clearly over here all the time. Senator Cools: Senator Joyal can tell you that I didn't say a word. He leaned over to talk to me. Senator Eggleton: Well, I hear you constantly. Senator Cools: That's too bad. On this issue, the only issue, of course, is what you just raised. Senator Tkachuk: It's no wonder they're not in the same caucus. Senator Eggleton: I have the floor; you don't have the floor. Senator Cools: I don't want the floor; I'm not trying to get it. Senator Eggleton: You just shout out loud all the time. The Chair: Order, order. Senator Cools: I think you're being obnoxious and rude now. Senator Eggleton: I think you're being obnoxious and rude; I'm sorry. Senator Cools: You accused me— Senator Eggleton: Well, I could hear you clearly from over here. The Chair: Order! Senator Eggleton, continue. Senator Cools: Supercilious. Senator Eggleton: Well, I'll say you're silly, but anyway— 14-X From "Remarks Concerning the Savages of North America" found in "Poor Richard's Almanac" (Benjamin Franklin), p. 69:
"He that would speak rises. The rest observe a profound silence. When he has finished and sits down, they leave him five or six minutes to recollect that if he has omitted anything he intended to say or has anything to add he may rise again and deliver it. To interrupt another, even in common conversation, is reckoned highly indecent. How different this is from the conduct of a polite British House of Commons where scarce a day passes without some confusion, that makes the Speaker hoarse calling to order." n14-X With another 20 people about to be appointed here, we will then have a situation where 40 per cent of the membership of the chamber will be people who are generally referred to as independent and non-affiliated and, yet, having only 17 seats in the committee structure. So I have a two-part question: First, do you support recommendation 21 from this committee? Second, how do you think it should be handled to rectify, at the earliest opportunity, the difference between the Senate membership and the committee membership? 14-2 Senator Carignan: I've examined the recommendations. I have not yet prepared my position or my official notes about the consequences of recommendation 21, so I will reserve comment for when I make my statement about recommendation 21 in the chamber. 15 I'd just like to explain the context, the way we've traditionally formed committees. After each Speech from the Throne, according to tradition, based on the representation within the chamber, negotiations were launched between the parties' representatives to determine what the committees would be, their composition, and the number of members comprising them. Sometimes, mathematically, it was not necessarily exact. So we sometimes decided which committees would comprise more opposition members than government members, or the reverse, based on the topics of interest to the parties, and this has always been done by consensus, without incident. When vacancies arose, they would be filled automatically. Certain committee seats were held by independent senators, and things worked that way. Upon each Speech from the Throne, the composition of the committees would be reviewed based on the composition of the chamber. 15-1 The problem involved in composing the committees arises because, within the group of caucus leaders, we did the first sort, if you can call it that, in the process of choosing the composition. Therefore, if we had five members who wanted to sit on a committee, it was up to us, within the four or five seats we had, to adjudicate the choices. We proceeded based on the members' interest and experience. Naturally, when people begin their service with the Senate, there are ideally certain committees that interest them, but there are also rules tied to seniority and the number of available seats, with which we must also comply. 15-2 My son has just begun working for a business with 20,000 employees. He is very ambitious, and I am convinced he would like to be the president, but there are stages to go through before that. He will need to hold the positions that are needed or available at the right time, and hope one day he can achieve his dream. 15-3 Senator Eggleton: We're talking about membership in a governance process here. It's a little different from that analogy. With these 20 new people who will be coming soon, the people who will identify as independents or non-affiliates will be the biggest group. They will be bigger than your group, and certainly bigger than ours. Why should you have more membership on those committees than they do? We certainly shouldn't; I would agree with that, but why should you have more membership? Why wouldn't we try to rectify that instead of waiting for a Speech from the Throne or a new Parliament? 16 Senator Carignan: I didn't say that I agree with your position; I explained how we've traditionally worked. Exceptionally, we will be welcoming 20 new senators. We will see if they all arrive at the same time, or if the appointments are limited to five or six at first. We will need to await the appointments. We will cross that bridge when we come to it. 17 As for composition, your question was more about recommendation 21. I will reserve my comments on recommendation 21 until I give a speech in the chamber on the subject. 17-1 Senator Massicotte: I find your presentation very well thought-out and organized, Senator Carignan, and I appreciate its contribution to our debate. I agree about the importance of debate, and of having an open and critical process, but I am not yet convinced of the need to organize a permanent official opposition. 18 In the study of Bill C-14, we saw that your caucus was not united on the question, and that it contributed to the debate. As for the way caucuses are formed, I appreciate your suggestion to allow groupings based on senators' wishes. I have no problems as far as political values and philosophies are concerned. My main problem is when the ties or independence of the caucus are controlled by the caucus or the political party in the House of Commons. That is potentially a major problem. I also have trouble with regional caucuses. I'm still not convinced they represent our interests. 18-1 Bill C-14 was an example. There was a good debate. The Senate's deliberations were helpful. Ultimately, some amendments were accepted. The Senate did a good job with the deliberations, in which some proposed amendments were accepted, and others were refused by the House of Commons. In the future, the Senate will make more and more amendments. However, if we continue to disagree with the Commons and it refuses our amendments, I wonder whether we need to accept its position, or to use a joint committee mechanism to find a solution. 18-2 Should we accept, as they do in England, a deadline, an allotted period, for studying the question, and a veto from the House? What do you think of that? 18-3 Senator Carignan: I would refer once again to my vote on Bill C-14. I continued to vote against the bill because it was unconstitutional, despite being returned by the House. I don't think we should have passed the bill; at the very least, we should have insisted on our amendments, so it would be constitutional. 19 With respect to a bill introduced in the context of the election platform of the elected government, our role is to improve, to refine, and to draw attention to elements requiring improvement. But if, at the end of all that process, the bill is not part of the party's platform, and violates minority rights and the Constitution, our role is to protect minority rights and the Constitution. We must hold our own on that, and we've done it in the past. 19-1 Abortion would have been recriminalized if the Senate hadn't held its own. Everyone is aware of that. You spoke about Bill C-14. We had a very good debate. This shows that the system is not all that bad, and that it works quite well. It is able to adapt rapidly. 19-2 I believe we have a constitutional role. It is true that our constitutional role has evolved over time. When we talk about reviewing or voting against an unconstitutional law, bear in mind that, in 1867, the Constitution provided for a division of powers. The division is between the federal and provincial levels. There was a list of the different powers for each of the provinces. So when a law was said to be unconstitutional, that meant that it fell under provincial jurisdiction, and that, as a senator defending the province, I would have had to oppose it. 19-3 The Constitution has evolved, and we now have a Canadian Charter of Rights and Freedoms. In practice, our mandate has been extended to include Charter review. I think that's an important element. We need to be conscious of that. But if we want to play our part fully, we need to keep that power; otherwise, senators will become a group of experts equivalent to an advisory committee of bureaucrats, which is something the government can certainly do externally. 19-4 They will propose a bill and can test it, and if I ultimately don't agree with them, I can adopt it as I like, and have it pass. We must avoid transforming the Senate into an advisory committee. 19-5 Senator Massicotte: You said that we were right to oppose the House of Commons when there was a question of constitutionality and minority rights. Senator Joyal has listed four exceptions in which the Senate should hold its own, despite the opposition from the House of Commons. You then gave the example of a case in which the bill in question is not tied to the electoral platform, and therefore doesn't have a public mandate. If there is no public mandate, do you think the Senate should oppose the bill? 20 Senator Carignan: If the government has not obtained the mandate to take things in a certain direction, and the Senate holds its own, what will happen? At some point, Parliament will be prorogued, and there will be an election. If the government is so attached to its program or to that element, it can refer it to the electorate. When citizens re-elect the government with that item in its program, the Senate will get the message, and at that stage, it can defer. Otherwise, it's our role to protect the public, minorities and regions, and to ensure the bill is not adopted as proposed. 21 We saw it during the GST debate; there are ways to change this balance. The constitutional power to appoint more senators existed, and that's how the Brian Mulroney government altered the balance, but there are other ways to do it. You referred to joint committees, with members from both the House and the Senate. Those are other solutions, but I don't think we should abdicate our role as senators and become a powerless group of advisory committees. That's not our role. 21-1 The Chair: We have 20 minutes, I have seven senators on the list and we want all of them to have their say. 22 Senator Tannas: I will be brief. Thank you for being here and thanks for your presentation, which was fulsome. We appreciate it. 23 You discussed the reasons for official opposition and made the case, I think, specifically around the point that the official opposition should logically mirror whoever is in opposition in the house. That makes sense. That would, I think, be the most logical and efficient way to make sure that in debates, the other side of the coin, as you said, is presented to those of us who want to understand the issue and make an independent and informed vote. 23-1 You mentioned in your presentation that you actually are open to the idea of organizing non-political caucuses and that that was a good idea. That is what I understood you to say. I draw from that that the idea of caucuses of independent members that aren't necessarily all revolving around political parties makes sense to you and that the idea of an official opposition together with caucuses that are not political parties are not mutually exclusive. They can function well together in good old Canadian fashion and we would be creating some kind of a hybrid of the Westminster system. 23-2 I think that's terrific. As you know, our committee posited two recommendations—7 and 8—around caucuses and how they should be formed. I wanted to ask you, if we can draw from that, under what circumstances they could be formed. I know you're not speaking for the Conservative caucus but you are here as an independent senator. 23-3 Would you confirm that you would support recommendations 7 and 8 as they are written in the report? 23-4 Senator Carignan: It's the same point. I'd like to retain my right to speak and to complete my remarks on the effects of the recommendations, because I haven't had the time to measure the impacts in their entirety. I want to focus especially on the presentation today. 24 Senator McIntyre: Thank you for your presentation. It's certain that debate is necessary for Parliament to function properly. Naturally, the objective is a Senate that is more complementary, more independent, and less partisan. 25 Based on what I've heard, then, it's my understanding that you feel it's necessary for there to be a government party and an opposition party in a British-style parliamentary model. My question has two components. 25-1 First, if, despite the presence of groups of senators not affiliated with a political caucus, the vigour of debates is maintained, and the consideration of government measures remains effective, does the existence of a government party and an opposition party remain necessary in the Senate? 25-2 My second question is as follows: If so, would a model without a government party and an official opposition weaken, or, worse still, endanger the very existence of the Senate, it being understood that the essence of that existence is adversarial debate, in which one side proposes and another opposes? 25-3 Senator Carignan: If you look at all the world's parliaments, you see that there's a party that proposes and a party that opposes. The debate takes place there. The chambers accept independence up to a point, or independent groups, but, as Senator Joyal said, in the House of Lords, there is a kind of convention that the cross-benchers will not account for more than 20 per cent, or roughly 20 per cent. The others must associate with one of the various political parties. 26 If this concept is taken to the extreme, it will, as Senator Joyal has stressed, take away the very essence of the debate, or the very essence of the role of the chamber—which is made up of a government and an opposition—and kill the institution as it was created, by turning it into a big advisory committee of bureaucrats who cannot truly oppose the government, and will instead give their opinion. That's fine for debates within corporate boards, where there are no political parties, but people debate issues. Their views might differ from each other, but they remain an advisory committee, which is not the role that the Fathers of Confederation gave the Senate. 26-1 Senator McIntyre: Regardless of which formula we come up with, the important thing is not to imperil the Senate's very existence. 27 Senator Carignan: Exactly. As for the opposition, we should recall that the government has an enormous amount of power and tools at its disposal. Even in the Senate, the current Government Leader, whose team officially consists of three members, has means that far outweigh those numbers, both financially and in terms of the tools granted by the Rules. Why? Because it needs them for its government program to work. The corollary is that the opposition must also have means, and that is particularly important because the opposition does not have the benefit of the machinery of government here. It has neither the means, the help nor the support of the machinery of government. 28 I'm not sure how many current senators have been Leader of the Government or Leader of the Opposition. I am undoubtedly one of the only ones, perhaps the only one, to have held both posts, and I can see the difference between the resources available to each side. It's enormous. That's why the Leader of the Government must cooperate with the opposition on several elements, such as information meetings for critics of bills. 28-1 Senator Harder has said that we would organize special meetings for all senators in a fair manner, but not necessarily for the bill's sponsor. We cannot proceed that way. The bill's sponsor must be able to meet the officials in an official capacity, to ask questions and gather all the information necessary to do his or her work. The sponsor cannot be put on the same basis as everyone else. He or she has an essential and specific part to play. 28-2 Senator Bellemare: My question is related to the concept of debate. Why must there always be an adversarial debate? I thank you for your presentation, and add that I found it very cogent. You said there is no Senate in the world that isn't made up of a government group and an opposition group. However, I believe an exception confirms the rule: the Irish Senate. It's is made up of 60 senators; 11 are appointed by the prime minister, and the rest have no party affiliation. They're elected by academics and five major vocational sectors defined by the Constitution. The first encompasses culture, the Irish language, literature, art and education; the second, agriculture and the fisheries; the third, labour; the fourth, industry and commerce; and the fifth, public administration and social services. Therefore, instead of having adversarial debates, the Irish Senate considers different points of view constructively. In adversarial debates, the fact that some propose and others oppose often gives rise to a lot of rhetoric, because people don't always know why they should oppose, and why they should propose. 29 Hear, hear. Why must debates always be adversarial? The ultimate purpose of a debate is resolution, not verbal wrangling. I imagine that, roughly speaking, debates concerning legal framing of bills, debates in a number of committees, debates with witnesses, debates in the Chamber tend to be conducted differently. Not to mention such a non-oral debate as co-operative authoring; quoting Father Brown from an episode in the TV series by that name: "Solitude and thinking are the best bedfellows." n29
In the Senate of which we are speaking, with an official opposition and no government caucus, how would we ensure that the debate, which gives rise to proposition and opposition, would be constructive, and would therefore improve bills, while the opposition is developing tactical and electioneering strategies in conjunction with MPs? How would the opposition, which caucuses nationally with the Opposition in the House of Commons, truly have a constructive vision, without opposing for the sake of opposing? 29-1 The Chair: Could you shorten it up? 30 Senator Carignan: With respect to Ireland, I noticed four key words: "defined by the Constitution." First of all, if Ireland has decided in its Constitution that in order to represent the different groups, be they professionals, scientists or health care professionals, they should obtain the views of those communities and defend those communities' interests as part of the legislative process, that's Ireland's choice. The Fathers of Confederation did not choose to define our legislative process in that way. 31 Secondly, we are members of a Conservative caucus, and unless you believe we are basely partisan and act irresponsibly, it seems to me that we represent the Senate in good faith and responsibly, rather than according to base partisan interests. This can be seen from the quality of debates, and you can't have one without the other. It's not a sin to be a member of a political party. 31-1 Senator Bellemare: That's not what I meant to say. Far from it. I was simply calling the structure into question. As for Ireland, the Constitution defines only the five groups, not the process as a whole. 32 Senator Carignan: Contact with elected officials is very motivating for me. The fact that an elected official can share their concerns about a policy that affects them personally is important to my decision-making, and guides the way I vote. I see no point to being in an ivory tower or a bubble, cut off from the public, but somehow believing that what I do is good for the people. 33 Which brings me back to having a number of senators serving as citizens' representatives, see, e.g. here. n33
Senator Pratte: I am facing a practical problem and a problem of fairness, in that independent senators are underrepresented. They have no presence on certain committees, and on other committees, they are much less present than their numbers in the Senate warrant. Do you support the principle of proportionality? 34 Senator Carignan: I agree that there must be sufficient representation on committees to ensure that each senator can participate fully. Certain positions are available on certain committees, and no independent senators have submitted their names. If you would like to sit on the Senate Standing Committee on Official Languages, Senator Tardif will be pleased to welcome you. The problem is that certain senators take part only in the committees that interest them. 35 Senator Pratte: I am asking you whether you agree with the principle of proportionality. 36 Senator Carignan: You said that you are facing practical problems. That's true. Other people who held the position before you also had an interest, and expertise. My friend Rhéal Fortin, interim leader of the Bloc Québécois, is facing a practical problem as well. 37 Senator Pratte: Let's spend some time on the question of principles, since you yourself brought it up. I am asking whether you agree with the principle of proportionality, which holds that a parliamentary group should be represented on a committee based on the number of senators that its representation in the Senate would entitle it to. 38 Senator Carignan: I said that I agree with the principle of proportionality provided everyone's role is taken into account. If the three government representatives have a $600,000 budget, that's normal. They have a governmental role to play. They need more resources than a senator with no particular role to play in the process, other than a legislative role. What is in question is the role of the official opposition. There must be an excessive weighting, having regard to the special status of the official opposition. 39 Senator Pratte: As far as financial resources are concerned, independent senators as a group get zero. 40 Senator Carignan: No, you receive $7,000 each. That said, it's the same thing for the official opposition. I'm not necessarily talking about financial resources. I'm talking about the whole set of resources necessary for the Senate to function, which is to say, presence, and participation in the Senate's work. 41 Senator Cools: I thank Senator Carignan for what I thought was an outstanding presentation. I would also like to thank Senator Carignan for his balanced leadership of the opposition in the Senate for quite some time now. 42 My question to you is not as simple as one would think it sounds. I have searched and I can find no constitutional authority whatsoever for a Prime Minister not to recommend, or to choose not to recommend, to the Governor General for appointment to the Senate persons who are "partisans." I can find no authority. I can also find no authority as to how such a decision can be delegated to other groups of people to make recommendations to the Prime Minister of the names of individuals. 42-1 I am not sure that those powers can be delegated. I have always understood that it was a highly protected and highly valued privilege that attended the Prime Minister that he would make recommendations respecting the appointments to the Governor General. 42-2 And after senator, the most privileged appointment would be the Supreme Court of Canada. Could you help me to find an authority? That would be good for my mind. 42-3 However, my question to you is not that. My question to you is: What would be the position of the Senate and the senators if the next Prime Minister comes in and decides that it was really quite fine, what was there before, and that perhaps what was there before was better? Perhaps, but, in any event, he thinks for sure it will be better. What will be the position of the Senate and, I would say to you, politics in the country, if such a thing were to happen? You know and I know it could happen. 42-4 Senator Carignan: It's up to the prime minister to appoint the people he wants. As you can see from our Rules, we can affiliate with a political party and sit on a caucus, or change allegiance. Whether the person is appointed by the prime minister or not, I think the Senate can adapt. 43 I'd like to come back to the concept of independence and political party affiliation. A senator's independence does not depend on whether he or she is affiliated to a political party. That doesn't affect the senator's independence. Rather, the question of affiliation, or of lack of independence, stems from the fact that the prime minister appointed us. People might tend not to want to upset the prime minister who appointed them, and to operate on that basis. 43-1 I consider myself fully independent, even though I'm a member of the Conservative caucus. I feel no outside influence, or influence from the prime minister who appointed me. I don't owe anyone anything. In fact, the prime minister who appointed me is no longer in office. 43-2 The Chair: Senator Lankin has the final question, and I don't think we're going to have much time. Thank you so much; you were very helpful. 44 Senator Lankin: Senator Carignan, thank you for your thoughtful and thought provoking presentation. Both you and Senator Joyal have focused, in parts of your comments, on the issue of proposing and opposing and debate and the critical nature of that. I, like Senator Massicotte, have an open mind about this. I'm seeking to continue to explore these ideas and to understand if other models are possible because I do believe that there are ways of structuring discursive discussion that doesn't have to be based on the political opposition that's in the House of Commons. 45 One of the things you said is, for me, very important, at the core of it. It is: What resources are available to understand the full breadth of the opposition that exists within the country from numbers of sets of values? There could be a bill that Senator Tkachuk and I are polarized on—because he used that word last time I was here—and that we oppose, but from very different perspectives. So the resources available to do the research, to understand, to have the materials, it seems to me that, for a broad and informed debate, that shouldn't be contained just within the official opposition group, whatever the nature of that is. 45-1 I don't know if this could be looked into, but, at one point in time, in the Westminster system, in Whitehall, there was an office of research that supported the opposition parties for the House of Commons. I have no idea its relationship to the Senate, but it's the fact that there could be materials available that inform all senators of the kinds of views that are out there that can be augmented from a values base or a partisan base or any other base. I wondered if there are just ways that we could explore that, even if there is an official opposition. You might have some views to offer on this. But I think about Bill C-14, and Bill C-14 was not aided by having an official opposition and a government representation. It was aided by thoughtful, well researched contributions from around the chamber, pro and contra the bill, all around the chamber, that didn't fall along the traditional lines that you're talking about. 45-2 But I very much appreciate what you are saying about the access to the resources to have an informed opinion and have an informed debate. Do you think we could look to see if there are other models just to help inform our discussion as we go forward? 45-3 Senator Carignan: Yes, certainly. I'd like to draw your attention to the fact that the debate on Bill C-14 went well. It's also because the Rules allowed the Government Leader, the Leader of the Opposition and the Liberal leader to sit down together and negotiate a work process. Had it been truly necessary, we could have proposed a time allocation to prevent the debate from veering off course. It's the presence of groups, caucuses and leaders that made the quality of that debate possible. 46 Senator Lankin: I would suggest to you that some others played a role in that, too. It wasn't just the two caucuses. 47 The Chair: Thank you very much. This was a typical meeting where there was back and forth and good discussion. Thank you, Senator Carignan for coming. It was, I think, a wonderful discussion. You gave us lots of food for thought. 48 Thank you very much; this meeting is now adjourned. 48-1 (The committee adjourned.) 49
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