Bill S-4 (Historical)
An Act to amend the Constitution Act, 1867 (Senate tenure)
This bill was last introduced in the 39th Parliament, 1st Session, which ended in October 2007.
Not active, as of June 19, 2007
(This bill did not become law.)
This is from the published bill. The Library of Parliament often publishes better independent summaries.
This enactment changes the tenure of members of the Senate.
Concurrence in Vote 1--Senate
Main Estimates, 2014-15
June 10th, 2014 / 7:50 p.m.
Blake Richards Wild Rose, AB
Mr. Speaker, I am pleased to have this opportunity tonight to speak to the proposal by the member for Winnipeg Centre to oppose Vote No. 1—Parliament, to provide the program expenditures to the Senate in the amount of $57,532,359 in the main estimates.
My remarks, I should say off the top, should in no way be confused as a ringing endorsement of the status quo in the Senate. Our government has consistently tried to reform the Senate while always recognizing the important role the Senate plays in our parliamentary system. That recognition is in direct opposition to the views of the sponsor of this motion, whose party would like to summarily abolish the institution. That is what the motion of the member for Winnipeg Centre would effectively do by depriving the Senate of the resources it needs to function.
Our government has always believed that while the Senate plays an important role in our parliamentary system, it needs to be improved to better serve Canadians in the way it was originally conceived.
A review of our government's record since taking office in 2006 demonstrates not only our government's commitment to Senate reform but also our flexibility in accommodating different views about Senate reform.
Legislation was first introduced in the 39th Parliament in April 2006 to limit Senate tenure to a period of eight years. Bill S-4 at the time proposed to amend section 29 of the Constitution Act of 1867 to limit Senate tenure to a renewable term of eight years and to remove mandatory retirement at 75 years for new senators coming in.
Also in the 39th Parliament in 2006, our government introduced Bill C-43, the Senate appointment consultations act. That was a bill that would have provided for a national consultation process through which Canadians would be consulted on their choice of candidates for appointment to the Senate. That was obviously modelled after efforts made in my home province of Alberta, where we had undertaken any number of these consultations in the past and where we had senators who were essentially elected by the people of Alberta. It was modelled after that particular idea, the innovative approach taken by my home province of Alberta. Unfortunately, as with the term limits bill, the opposition parties refused to support these important reforms.
In the second session of the 39th Parliament in 2007, our government introduced Bill C-19, an act to amend the Constitution Act, 1867 (Senate tenure), here in the House of Commons. Bill C-19 proposed to limit Senate tenure to a period of eight years, the same as the bill we introduced in the Senate a year earlier. However, there were a couple of important modifications.
Second, Bill C-19 contained the provision to permit a Senate term to be completed after an interruption. An example would be a term interrupted by a resignation. Despite these changes and our government's determined effort to bring change to an institution that had remained largely unchanged since 1867, the time of our Confederation, the opposition parties steadfastly refused to support our legislation.
Then, of course, our government was re-elected in 2008 with a mandate to reform the Senate, and we went to work on that. In the 40th parliament in 2009, our government introduced Bill S-7, an act to amend the Constitution Act, 1867 (Senate term limits). It was introduced in the Senate, and it included two key changes.
The first was the idea of eight-year term limits. That limit would apply to all senators appointed after October 14, 2008, with the eight-year terms beginning from the time that the bill received royal assent. Then, of course, the retirement age of 75 years would be maintained for all senators. Once again, even this modest but important reform was opposed by the opposition parties.
In 2010, our government introduced Bill S-8, the senatorial selection act. It was a bill to encourage the provinces and territories to implement their own democratic processes for the selection of Senate nominees. It would have democratized the Senate and provided an opportunity for the provinces and territories to implement the processes to enable that to happen. This act included a voluntary framework that set out a basis for provinces to consult with voters on appointments to the Senate going forward.
We all know what happened there: the opposition parties refused to support that reform too. Is anyone sensing any kind of pattern here?
That year our government also reintroduced the Senate term limits bill, Bill C-10. That bill died on the order paper upon the dissolution of Parliament. Can we guess why? It was due to a lack of will for reform from the opposition parties once again. They refused to support any idea of reform in the Senate.
Canadians gave another mandate to our government in the election of May 2011 to again make changes to the Senate. A month and a half later, on June 21, 2011, our government introduced Bill C-7, the Senate reform act. Members can probably imagine where this is going. Bill C-7 would have implemented a nine-year non-renewable term for senators. That goes back to the point I raised earlier about being flexible and accommodating. Some concerns had been raised about the eight years, so we went for a nine-year non-renewable term.
As well, that bill would have once again enabled a voluntary framework for the provinces to implement Senate appointment consultations. Processes were put in place for that. As with all the other times, the opposition parties still would not change their minds. They refused to support meaningful Senate reform.
Throughout all of those debates on the Senate, time and time again our commitment to reform was crystal clear, as was our recognition of the value of the Senate in our parliamentary system.
Our commitment to reform was also demonstrated by a reference to the Supreme Court of Canada on Senate reform that our government launched in an effort to clarify questions about the constitutionality of legislation that we brought forward. While we were obviously disappointed by the court's decision, it is unfortunately one that all governments will have to respect going forward.
However, the court's opinion does not in any way change our view that improvements to the Senate are needed, nor does it change our view about the value the Senate can play in our bicameral legislative system. My hope certainly remains that reform will be accomplished at some point in the future.
In the meantime, there are other ways of improving the operation of the Senate, as demonstrated by the measures that the Senate itself has initiated to improve transparency and accountability with regard to its expenses.
The Senate plays a key role in the review of legislation. My Liberal colleague across the way can debate what sober second thought means, but he was right that this idea of sober second thought is a learned opinion of second thought. That is something the Senate provides, and it has resulted in improvements to legislation in the past.
The Senate also plays an important role in its committees in the investigation of issues of importance to Canadians. Certainly, the committees, as has been mentioned already in the debate this evening, have produced comprehensive reports. They have produced many, in fact, that have proven to be of tremendous value to the debate and to learning and understanding here in Parliament and throughout Canada. The Kirby report on mental health was an example of that. There was a study done by the national finance committee in the Senate on the price gap between Canada and the U.S. Again, the national finance committee looked studied the elimination of the penny. I could go on and on, citing reports that have been helpful and that have come from the Senate.
There is no doubt that, while the Senate is one of our key institutions here in Parliament, it has been hampered in its role by the lack of accountability that we have seen. There is no question. This lack of accountability has, in turn, been created by the lack of a democratic basis to the system of appointments. Despite the best efforts of most senators and the good work that does get done, some have questioned the legitimacy of the Senate because it lacks that democratic basis.
As I said earlier, I personally do not question the work of the Senate. However, clearly the events of the past year or so have fairly resulted in some damage to its reputation. While we agree about the need for improved accountability, and there is no question that it is needed, we do not believe that the solution is to remove the Senate altogether from our parliamentary system. Rather than destroy the institution and the valuable role it does and can play, we continue to believe that it can be improved and that it can continue to function as one of our key institutions.
Clearly, the recent decision by the Supreme Court on the Senate reform reference has changed the outlook considerably on the reform front. However, improvements can still occur, and the Senate itself has been a leader in that regard over the past year. The Senate has an important role to play in making the improvements. That it has the responsibility to regulate its own affairs is the prime reason for that.
I would draw to members' attention section 33 of the Constitution Act of 1867, which says:
If any Question arises respecting the Qualification of a Senator or a Vacancy in the Senate the same shall be heard...by the Senate.
The Senate has made some progress in dealing with the issues it has faced in this area of financial accountability and transparency. Much of the progress has been the result of the investigations carried out by the Senate Standing Committee on Internal Economy, Budgets and Administration. As a result of that committee's recommendations, the Senate has adopted new administrative rules to render the reporting system more transparent and to tighten the requirements that senators must meet in filing their expense claims. Some senators have been required to reimburse the Senate for expenses that were considered to be improperly claimed.
The Senate has also asked the Auditor General to conduct an audit of Senate expenses, which will take place in the months ahead. The Senate has also acted by suspending several senators without pay or without access to Senate resources. It seems as if the Senate is taking these matters into its own hands, as it should. Our government has encouraged the Senate to address these issues, and it supports the progress that has already been made.
Since 2006, our government has made a number of attempts to reform the Senate, as I have outlined throughout my remarks here this evening, and as I have indicated, the opposition parties have continued to stand in our way every single time. We as a government continue to believe that providing a democratic basis for the Senate would be a vast improvement and that it would in turn improve accountability.
Our reform efforts, of course, culminated with the introduction of Bill C-7, the Senate reform act, in the last Parliament. Bill C-7 would have introduced non-renewable terms of nine years and provided for a voluntary framework, which provinces and territories could use as a basis to consult their populations on their preferences for Senate nominees, again, as I have indicated, much like what has been done in my home province of Alberta many times. It has produced some great senators, some senators with democratic legitimacy and accountability. The ideas in Bill C-7 were real and concrete measures to reform the Senate.
Unfortunately, our efforts to move those important reforms forward came to an end with the release of the Supreme Court's decision on the Senate reform reference. The fact that in that reference we included a question on abolition was not in any way an indication that our government favoured abolition as an instrument. Our first choice has always been the introduction of reforms that would enhance the Senate's democratic legitimacy.
The Senate certainly has an important role to play in our system. I believe that abolition would remove an important player in the parliamentary system and would leave a huge hole in the legislative process, and for no good reason. Those who know even a little about our system of government, just a bit, know that the Senate has an important role to play in our system, despite what opposition parties may have tried to claim. The Senate's role in the legislative review process is invaluable to our system. We need to continue to provide the Senate with the resources it needs to function effectively.
Of course, we expect the Senate to treat those funds with respect. There have been a number of rule changes designed to ensure that is what is happening. However, we cannot simply remove the entire allocation to the Senate. As I said, we have brought forward a number of suggestions and bills, both in the Senate and in this place, seeking to provide the reform, to create the democratic legitimacy, and to create the accountability that we believe is necessary in the Senate. As I have said, every single time, time and time again, those measures and those attempts to make the reform were blocked by the opposition parties. They would not support anything we tried to do in terms of reform. We brought forward a number of different proposals. We were willing to be flexible, we were willing to be accommodating, we tried different approaches, and we did everything we could to see that reform come to fruition, but the opposition parties refused to allow reform to happen, every single time.
As I have indicated, we understand that there have been some issues with regard to expenses and whatnot in the Senate over the last year or so. There is a need to address those issues and create better accountability. As I have said tonight, there have certainly been efforts undertaken in the Senate itself to try to accomplish those things, and we continue to encourage and support that. We know that reform is something that needs to happen some time in the future. Hopefully, we will get some recognition of that from the opposition parties at some point in time. We can keep trying and hoping, but what we cannot do is simply remove the entire allocation from the Senate and pretend it never existed, and that is what is being proposed here tonight.
I cannot support the proposal by the member for Winnipeg Centre to oppose this allocation of the resources to the Senate, which is clearly a thinly disguised attempt to abolish an institution that fills an important function in our legislative process.
Opposition Motion—Senate Accountability
Business of Supply
October 22nd, 2013 / 3:25 p.m.
Scott Reid Lanark—Frontenac—Lennox and Addington, ON
Mr. Speaker, contained in the question was the following comment: that the government seemed so loath to move legislation relating to Senate reform. I will look back at the legislative history of this government's attempts to cause the Senate to be reformed.
Bill S-4, An Act to amend the Constitution Act, 1867 (Senate tenure) was tabled in 2006. As members can tell from the date, in 2006, the first year of this government, it sought to introduce limits to Senate tenure, which would limit the term of senators, but the opposition blocked it.
In all fairness, that was in the Senate, and I think my colleague is pointing out these were not the New Democrats, and I accept that. However, the fact is the opposition held the majority in the Senate at the time and the government did move. The concern the member had was that the government had not taken action on the Senate.
Bill C-20, the Senate appointment consultations act, which was also moved by the government when it was in minority and opposed by the opposition, would have had the effect of setting in place a national electoral process with a preferential ballot designed to actually avoid some of the pitfalls that created a highly partisan nature in the Australian Senate. We would have ensured that there was none of what they call “above the line” voting that occurs in Australia that causes people to vote for parties instead of individual senators. We did that legislation.
Bill C-7, the Senate reform act, was also put forward by this government.
There are three pieces of legislation, all of which were opposed by the opposition. I cannot remember the details of when the NDP opposed, or which ones were opposed to others, but the general trend has been that NDP members oppose everything because they favour abolishing the Senate, which is a legitimate point of view. However, I do not think it is legitimate to go from that to say the government has not been trying very hard and consistently over the past few years.
Constitution Act, 2010 (Senate term limits)
November 17th, 2010 / 5 p.m.
Carole Lavallée Saint-Bruno—Saint-Hubert, QC
Mr. Speaker, once again, for the umpteenth time, the Conservative government is introducing Bill C-10 on Senate reform to limit senators' terms to eight years. This government bill is unacceptable because such a change represents a major modification to the Senate structure. That can only be achieved through a Constitutional amendment, which requires the approval of seven provinces representing 50% of the Canadian population.
The Conservative government's desire to unilaterally change one of the major elements of the Senate structure shows its complete lack of respect for provincial powers. This proves, once again, as though it needed to be proven, that this government—which was elected on the promise of governing in a less centralist fashion and showing greater respect for the provinces' jurisdictions and aspirations—feels utter disdain for the provinces and for Quebec in particular.
In fact, evidence to that effect continues to accumulate. The Conservative government always opposes any proposals that would give tangible expression to the recognition of the Quebec nation. It has never put words into action. On the contrary, it refuses to recognize that the Quebec nation has one language: French. Instead, it keeps trying to make Quebec even more bilingual by, among other things, making it impossible for companies under federal jurisdiction to be subject to the Charter of the French Language and Bill 101. It refuses to take into account the existence of our national culture, whether in the administration of our laws or the operation of the institutions that reflect our culture and identity. It refuses to recognize that our nation has needs and aspirations that differ from those of the rest of Canada. Instead, it continues to promote a form of multiculturalism that makes the French fact, the Quebec fact, a minority among other minorities and encourages immigrants to preserve their culture, all to the detriment of the continuity of our national culture, which is directly threatened as a result. This Conservative government refuses to even consider the possibility that Quebec should have its own radio-television and telecommunications commission to make regulations based on Quebec's unique interests and challenges.
Another aspect of this government's centralist policies is the fact that it wants to create a single securities regulator for all of Canada, even though the current system works perfectly well. We already know that it will refuse to limit federal spending power in the provinces.
And that, unfortunately, speaks to government's worthless commitment to give the provinces, their areas of jurisdiction and their aspirations more respect. Now this government is pushing its centralist interests even further, going over the heads of Quebec and the provinces in order to unilaterally impose changes to a major element of Canada's democratic system. And these changes, as we pointed out earlier, require amendments to the constitution and approval from the provinces.
The Canadian Constitution is a federal constitution. Everyone should know that, but apparently they do not. Quebec and the provinces must be consulted on all reforms that affect the powers of the Senate, the method of selecting senators, the number of senators to which a province is entitled and the residency requirement of senators. These types of changes affecting the essential characteristics of our federal democratic system cannot be made unilaterally by Parliament and must instead be agreed upon by the provinces. The government is clearly choosing to ignore this reality.
The Quebec government—led by a federalist party, I should add—clearly expressed a similar opinion. In November 2007, the intergovernmental affairs minister, Benoît Pelletier, reiterated Quebec's traditional position when he said:
The Government of Quebec does not believe that this falls exclusively under federal jurisdiction. Given that the Senate is a crucial part of the Canadian federal compromise, it is clear to us that under the Constitution Act, 1982, and the Regional Veto Act, the Senate can be neither reformed nor abolished without Quebec's consent.
The same day, the National Assembly unanimously adopted the following motion:
That the National Assembly of Québec reaffirm to the Federal Government and to the Parliament of Canada that no modification to the Canadian Senate may be carried out without the consent of the Government of Québec and the National Assembly.
Naturally, the Conservative government may believe that it can point out that Quebec is zealously defending the principles of a Constitution that it refused to sign. Quebec's position on this matter is far from contradictory. In fact, it is and always has been very clear: there will be no Senate reform until the issue of Quebec's status is settled.
The Conservative government undoubtedly wants to avoid that problem. However, it cannot circumvent the will of Quebec and the provinces in an area by going it alone within their jurisdiction.
This very clearly shows that Bill C-10 proposed by the current federal government would directly thwart the aspirations of Quebec and the other provinces. We are also concerned that this would create a precedent, allowing the federal government to get its foot in the door.
This does not mean that the Bloc Québécois is opposed to making any change to the Senate. But it is clear that Senate reform is not at all in keeping with Quebeckers' aspirations. They are rather indifferent about Senate reform.
According to a Léger Marketing poll conducted in March 2010, only 8% of Quebeckers believe that the Senate plays an important role and that the current appointment system works well; 22% of Quebeckers would like senators to be elected rather than appointed; and 43%, the largest group of respondents, would even be in favour of abolishing the Senate.
Clearly, in the current state of affairs, there is nothing about the Senate that can arouse the passion of citizens. Senators have an unfortunate reputation for high absenteeism and dereliction of duty. We should note that the Senate only sits 83 days per year.
However, the Senate also governs itself. It could make certain changes such as increasing the number of working days, reorganizing its committees to make them more effective, and adopting a more demanding schedule, along the lines of that of the House of Commons.
The government could also contribute to improving the institution's image by improving the quality of its appointments, by choosing more credible and more competent candidates rather than play the populist card and make purely opportunistic appointments. It should be noted that some senators are known for their absenteeism. Senator Jacques Demers, for example, was present for only 21 of the 83 short days that the Senate sits. That is less than one day in four on a schedule that is not very demanding.
And what can we say about Senator Pierre-Hugues Boisvenu who is a staunch defender of the families of victims of crime and kidnapping, but is in favour of getting rid of the firearms registry or, at least, removing hunting rifles from the registry? I gather that he never bothered to check what type of weapon Marc Lépine used in committing the massacre at École Polytechnique in 1989. What is more, in a logic that may raise some eyebrows, Pierre-Hugues Boisvenu blames the growing number of single mothers in Quebec society for the loss of hunting as an activity passed down from father to son. And again according to this senator, the decline in the popularity of hunting has a direct effect on the increase in highway accidents. It is unbelievable. This was published in Quebec newspapers.
This speaks volumes about some of the most prominent senators this Conservative government has managed to find. There is certainly nothing there to boost the Senate's image and nothing that is likely to get Quebeckers interested in the fate of the Senate.
In any event, it is clear that Senate term limits do not top the list of Quebeckers' priorities, to say the least. This government has enough to think about without having to get the public interested in an institution that many could see disappear without batting an eye.
Most importantly, it is totally unacceptable to allow the federal government to overstep its powers by circumventing the constitutional process, thereby trampling on the powers and aspirations of Quebec and the provinces and on its own commitments.
Constitution Act, 2010 (Senate Term Limits)
April 30th, 2010 / 12:10 p.m.
Andrew Kania Brampton West, ON
Mr. Speaker, I have the honour of addressing the House today on the issue of Senate reform and specifically with respect to Bill C-10. I would like to state that I do support Senate reform. I do support sending this bill to committee so that the issue can be studied in full. However, any type of Senate reform must be logical, democratic and constitutional. I do not believe that this bill fits any of those three criteria.
Why has there been no consultation with the provinces at all by the government? The Conservative Party espouses provincial rights. The Conservative Party talks about that and tries to compare and contrast with other parties. Why has the Conservative government ignored provincial rights? Why have the Conservatives not consulted them? Why is this bill so urgent that the government cannot consult the provinces in circumstances where it had a virtually identical bill, Bill S-7, that was introduced prior to prorogation?
The Conservatives had no difficulty suspending Parliament and killing that bill through prorogation, yet they must now take the position that this is so urgent that, although they killed the bill through prorogation, they now do not have time to consult the provinces with respect to this bill. I think that is wrong.
If the government does not even know if the provinces will support any amendments, notwithstanding what the government is trying to do, or if the provinces are prepared to support amendments, what type they would be, why are we taking the time of the House of Commons to deal with this? Should we not first know that the provinces will support this?
In order to get a meaningful constitutional amendment through, which I believe is what needs to occur and not simply this bill, we need the support of 50% of the population representing at least seven provinces. Even on a basis of good faith, I would like to know why the government has not taken the time to consult with the provinces to see whether there is that form of support across the country for this.
I mentioned three criteria. One criterion is democracy. Whenever somebody talks about Senate reform, they assume that they are proposing something that should be followed or that there is some urgent need for it. If we are going to do this, we should not make the situation worse. My fear is that an eight-year term would be a risk to democracy, not a benefit.
Various people have thought about this. The Senate is supposed to be a chamber of sober second thought. In order to get that, we need people with some institutional memory and experience who have been around for a reasonable period of time. More than that, we need to consider what they will do when they are there.
I would refer to an article written by David Akin which appeared in the press a couple of weeks ago. There are arguments against the eight-year term. The main argument is:
For example, under the terms of [the Prime Minister's] initial proposals, any Prime Minister representing any party would be able, over the course of only two Parliaments, to appoint – yes, appoint – senators to every one of the 105 Senate seats. Talk about a rubber stamp! Any semblance of the institution’s independence would be gone.
The first issue, especially in circumstances where we have had minority governments since at least 2006, is that it would be a risk to democracy to allow any sitting prime minister to, in theory, appoint the entire Senate through only two mandates.
In short, the Liberal Party is in favour of Senate reform, but we have to work in conjunction with the provinces to get there. We would like to know what our provincial partners think. We do not think it is appropriate to ignore them and not consult them, as the government has done.
In terms of the exact proposals, other comments have been made. From that same article, I quote:
The proposals by the present government, one to limit the terms of senators to eight years, and another for indirect senate elections, are not real or meaningful reform, in that they do not propose to alter the Constitution in any way. In fact, they have been painstakingly designed to avoid doing so.
If we are to have meaningful, long-term, democratic Senate reform, it requires consultations with the provinces to get that required 50% of the population with seven or more provinces, and we need to amend our constitution in a proper manner. Anything short of that, frankly, is unacceptable.
There is another comment in terms of Senate reform and limiting the terms. We already have the risk that we have discussed in terms of having one prime minister potentially appointing the entire chamber if the term is eight years, but there is another issue also. I would like to go to a journal article of UBC entitled “Transforming Canadians Governance Through Senate Reform Conference, April 18-19, 2007”.
There is another issue, and I think this is actually the more important issue. It is not so much what the terms are for the Senators. I support doing something about this. I am not against it, but once again, it has to be democratic, constitutional and logical.
The bigger issue is not the term, but the legitimacy of the Senate once in power, because as indicated, having reference to the United Kingdom's House of Lords, the issue is to keep the chamber bipartisan, so we actually get sober second thought, the main original goal of the Senate, and we have some check, some thought about the legislative agenda of the House of Commons. I will read from this article as well. On the question of legitimacy, and it is talking about a presentation, it states:
—stressed the legitimacy of the currently constituted House of Lords in the sense of broad public endorsement of an appointed chamber challenging the legislation of a popularly elected government. The secret, Meg Russell argued, was in the partisan balance maintained in an the appointment to the House of Lords, so that neither government nor opposition alone had the ability to control the chamber. Legitimacy came from independent—or at least bipartisan—action by a parliamentary chamber, not only from the mode in which members were selected.
In short, the problem with the proposal in this legislation is that in theory it gives the Prime Minister the power to appoint the entire chamber and there is no check on how that gets done. We need a method to ensure that the bipartisan, the rough balance that we have in the Senate, is maintained so all parties are represented and so it is not simply a government Senate chamber, whatever the government of the day may be.
If we deal with Senate reform and spend the time of the House of Commons and of a parliamentary committee, bring witnesses in and incur expenses, should we also not know that it is constitutional? Why is there no reference to the Supreme Court of Canada?
In 2006 the Prime Minister, when he appeared before the Senate committee speaking on Bill S-4, said, “The Government believes that S-4 is achievable through the action of Parliament itself”. This is not democratic, and I do not think it is even constitutional. We have scholars such as Alexandra Dobrowolsky, the chair of the Department of Political Sciences, St. Mary's University, who clearly says “that the failure to consult with the province violates the constitutional conventions”.
The Library of Parliament of Canada disagrees with the Prime Minister. I will quote from its writings on August 17, 2009:
There is, however, an involved debate as to whether the constitutional amendment procedures introduced in the Constitution Act, 1982 would allow Parliament to modify the main characteristics of the Senate without the consent of the provincial legislative assemblies. The Supreme Court has issued an opinion stating that Parliament does not have that authority, but the decision dates from 1980 and thus precedes the amendment mechanisms introduced in the Constitution Act, 1982. The question is therefore unresolved.
I do not think it is responsible for the government to go through this process without first consulting the provinces, as I have already indicated, but also knowing whether this is constitutional.
It is common sense to state that there should be a reference to the Supreme Court of Canada to make this determination rather than requiring persons after the fact to engage in lengthy and expensive litigation to challenge this. I anticipate that if this goes through, some group will challenge this, there will be such legislation and we will be tied up. Why not, since the Prime Minister has the power, simply refer this to the Supreme Court of Canada now and seek a ruling?
There is a certain irony in terms of what is occurring with these proposals. I am going to read three quotes. The first is, “Only candidates elected by the people will be named to the Upper House”. The second is, “the Upper House remains a dumping ground for the favoured cronies of the prime minister”. Both of those quotes in 2004 were from the Prime Minister.
Another quote from the Conservative Party was “A Conservative government will not appoint to the Senate anyone who does not have a mandate from the people”. I am sure Canadians will find that most ironic considering what has taken place.
Another example from May 28, 1996, the Reform Party opposition day motion speaking to it at paragraph 3049, stated:
The Reform Party proposal for a triple E Senate, a Senate which is elected by the people with equal representation from each province and which is fully effective in safeguarding regional interests would make the upper House accountable to Canadians. Implementing changes to the Constitution to provide for a triple E Senate, an extension of Alberta's Senatorial Selection Act into other provinces, is the best means to proceed in permitting Canada's regions to have a greater say in Ottawa and bring democratic accountability to government.
What happened to that? What happened to the positions of the government members when they were in opposition? Why are they not fulfilling their promises in seeking an attempt to bring meaningful Senate reform to Canada with consultations with our provincial partners? Why this legislation in this form? It is not democratic and it is quite ironic that the government is doing this considering its various prior statements.
In terms of other broken promises, I already read the quotes of the Prime Minister in terms of never appointing senators who have not been elected. I find it ironic that a record was broken with the Prime Minister appointing 27 senators in one year. There have now been 33 unelected senators appointed by the Prime Minister, despite very clear promises that he would never do that. That must go to the credibility of the government. Of course this is not the only promise that has been broken.
We also had the promises of income trusts, the public appointments commission, to never run deficits, to follow fixed election dates, which we know did not take place during the last election, and to not raise taxes, although we have a huge payroll tax, which, according to economists, will kill 200,000 plus jobs. This is just a litany of broken promises by the government that Canadians frankly need to know about.
Since this is under the democratic ministry, let us talk about democracy. With the 33 Senate appointments that the Prime Minister has made, let us examine them. These were not bipartisan appointments for the benefit of Canadians. Essentially these were Conservative mainly defeated candidates. I think Canadians need to know this.
I quote an article, once again by David Akin, of January 20, 2010. He states:
There is an irony to the appointments [the Prime Minister] has made that is not lost even on some of [the Prime Minister's] own advisers and supporters. As a young Reform party organizer and MP, [the Prime Minister] campaigned vigourously to make the Senate more independent of the prime minister. And yet, to create the Senate he wants, [the Prime Minister] now needs a Senate that will do precisely what he wants.
With the five members he is expected to appoint Friday, [the Prime Minister]—who once said he would never appoint senators—will have named 33 senators since taking office in 2006...
Who are those people? He goes on to state:
In fact, 20 of the 33 appointees were failed Conservative candidates, former political staff to Harper or the party, or were members of the Conservative party or its predecessor parties, the Reform party, the Progressive Conservative party and the Canadian Alliance.
I think Canadians have a right to know who those people are. This is the lost: Bert Brown, Reform Party organizer; Claude Carignan, failed Conservative candidate; Fred Dickson, adviser to former Nova Scotia Premier John Buchanan, a Progressive Conservation; Nicole Eaton, writer and community leader who chaired the Conservatives last two national conventions; Doug Finley, Conservative national campaign manager; Michael Fortier, co-chaired of Conservative national campaign; Suzanne Fortin-Duplessis, former Progressive Conservative MP; Stephen Greene, Reform Party staffer; Michael MacDonald, Conservative Party executive; Fabian Manning, former Conservative MP, lost re-election in 2008; Yonah Martin, failed Conservative candidate; Percy Mockler, New Brunswick Progressive Conservative; Richard Neufeld, provincial politician active in social credit reform and B.C. Liberal Party; Don Plett, former Conservative Party president; Michel Rivard, failed Canadian Alliance candidate; Judith Seidman, co-chaired the Prime Minister's 2003 leadership bid; Carolyn Stewart Olsen, long-time Prime Minister communication aid; and the last, John Wallace, failed Conservative candidate.
In terms of John Wallace, I will have to admit I know him. He is a good appointment. However, did the Prime Minister actually ask Senator Wallace before he was appointed to limit his term to eight years? Did he know this was coming? Senator Wallace gave up his lucrative business to come here. Maybe he should have asked him. Maybe that would have been fair. Maybe that would have been trustworthy.
There is a history here. Why are we dealing with this Senate reform package now? Obviously it was not urgent, because if it were so urgent, the government would not have killed it by proroguing Parliament, which also killed the legislation. It would have continued with Parliament to ensure this was taken care of before.
We do have urgent matters, though, that the government has sought to avoid by bringing forward this type of legislation, Senate reform at this stage. I am not saying we should not do this at some point, but why now? I have made this point in terms of the law and order legislation as well. Although I support almost all of it, why now? Why not deal with the issues that are urgent for Canadians when we are living through the worst recession since the last depression? Why now?
I am going to give one example. I have a top 10 list here that, frankly, the government should have dealt with already or should be dealing with, which it is seeking to avoid. This has nothing to do with the recent scandals and everything that has been going through question period. It has to do substantive issues that matter to Canadians for their ordinary daily lives. They are simply being ignored.
I sat in the transport committee this week, but I am not on the committee. I was shocked. In questioning pilots, as one example, members talked about these new SMS safety standards. In 2007 there were amendments to the Aeronautics Act contained in Bill C-6, An Act to amend the Aeronautics Act. This would have clarified Transport Canada's authority to regulate SMS, enhanced the sharing of safety data with Transport Canada and provided protections for employees who reported safety concerns internally under SMS.
The pilots who testified clearly stated that this was something they needed, that it was important, that it was required for the safety of air passengers across Canada. How many Canadians travel on aircraft? Yet it has not been reintroduced and the pilots, who were before the committee, want it introduced. Why has that not been done rather than go through with this law and order legislation and go through Senate reform at this stage? Why not pick other meaningful things that should be dealt with for the benefit and safety of Canadians?
As I essentially have no time left, I will not have a chance to go through the entire list. That is one example, and there is a whole litany of those that have been ignored.
Constitution Act, 2010 (Senate term limits)
April 29th, 2010 / 3:20 p.m.
Christiane Gagnon Québec, QC
Mr. Speaker, we are discussing Senate reform, which would see senators appointed for eight years. We have to ask ourselves the following question: should changes affecting the essential characteristics of the Senate be made unilaterally by Parliament or should they be part of the constitutional process involving Quebec and the provinces?
The Supreme Court of Canada has answered that question. In the late 1970s, the Supreme Court of Canada considered the capacity of Parliament, on its own, to amend constitutional provisions relating to the Senate. Its decision Re: Authority of Parliament in Relation to the Upper House , 1 S.C.R. 54 establishes the principle that major changes, affecting the essential characteristics of the Senate, cannot be made unilaterally. As hon. members can see, the Supreme Court has ruled on this issue.
Any reform affecting the powers of the Senate, the method of selecting senators, the number of senators to which a province is entitled or the residency requirement of senators can only be made in consultation with the provinces and Quebec.
Let us see how certain political players have looked at this issue. In 2007, the former Quebec minister for Canadian intergovernmental affairs, Benoît Pelletier, not exactly a sovereignist, reiterated Quebec's traditional position as follows:
The Government of Quebec does not believe that this falls exclusively under federal jurisdiction. Given that the Senate is a crucial part of the Canadian federal compromise, it is clear to us that under the Constitution Act, 1982, and the Regional Veto Act, the Senate can be neither reformed nor abolished without Quebec's consent.
That is what a Liberal government member said about the issue in 2007. That same day, the National Assembly—every single MNA, including members of the Parti Québécois, the ADQ and the Liberals—unanimously passed the following motion:
That the National Assembly of Québec reaffirm to the Federal Government and to the Parliament of Canada that no modification to the Canadian Senate may be carried out without the consent of the Government of Québec and the National Assembly.
This is not just about consultation. I know that Canada's Conservative Prime Minister would like to have full control over the Senate and appoint senators for eight-year terms, but for that he needs to do more than just consult with Quebec and the provinces. He needs to obtain consent from the provinces, specifically from seven provinces representing more than 50% of Canada's population.
Traditionally and historically, Quebec's position on the Senate and possible Senate reform has been very clear. Since the unilateral patriation of the Constitution, successive Quebec governments have all agreed on one basic premise: they have made it very clear that there can be no Senate reform until Quebec's status has been settled.
In 1989, Mr. Bourassa, the former Quebec premier, said that he did not want to talk about Senate reform until the Meech Lake accord was signed.
In 1992, Gil Rémillard said that Quebec would not sign an agreement on Senate reform until it was satisfied with the results of negotiations on distinct society, power sharing and federal spending power. More recently, Quebec's Liberal government—a federalist government, I should point out—participated in the Special Committee on Senate Reform in 2007. It wrote the following in its May 31, 2007, submission:
The Government of Quebec is not opposed to modernizing the Senate. But if the aim is to alter the essential features of that institution, the only avenue is the initiation of a coordinated federal-provincial constitutional process that fully associates the constitutional players, one of them being Quebec, in the exercise of constituent authority.
The Government of Quebec, with the unanimous support of the National Assembly, therefore requests the withdrawal of Bill C-43 [a bill proposing an elected Senate]. It also requests the suspension of proceedings on Bill S-4...
This is the fourth time the government has tried to bring a Senate reform bill before the House. The Liberal government spoke out against this for constitutional reasons.
And do not forget that on November 7, 2007, the National Assembly unanimously passed its motion. I think it is clear that if Ottawa wishes to reform the Senate, it must reopen the constitutional debate, sit down with Quebec and the provinces and negotiate with them in order to come to an agreement. It cannot act unilaterally. As I said before, the Supreme Court of Canada has ruled on this issue.
if it truly wants to recognize Quebec, the government must also make sure to take a second issue into account. We know only too well that the Conservative government does not want to recognize Quebec. If it recognized the Quebec nation, it would also recognize the various political figures that have spoke about this issue.
We also want Quebec's political weight in the House of Commons to be maintained. But the Conservative government wants to increase the number of seats by 30, including 20 in Ontario, which would reduce Quebec's political weight. We are told that we will always be guaranteed 75 members. But 75 out of 308 is not the same as 75 out of 338.
Furthermore, the entire population of Quebec opposes this. We are very surprised and very frustrated by the actions of this government, which finally decided to recognize the Quebec nation. That was a sham; it was nothing but empty rhetoric. It does not really mean anything at all. When this government can diminish Quebec's political weight and ignore Quebec's wishes to not reform the Senate for constitutional reasons, it will do so. This is nothing but smoke and mirrors.
If the government was serious about democratic legitimacy, it would ensure that Quebec maintained its current representation in the House of Commons, that is, 24.35% of the seats. If 30 more seats are added, Quebec's representation would drop to under 22%. It is crucial that Quebec be represented not only based on its demographic weight, but also based on its historical significance and its social, economic and cultural distinctiveness. That is why we want Quebec's political weight to be preserved, and do not want to be left with just 75 seats. It is also because of Quebec's historical significance and because the Conservative government recognized the Quebec nation. If it wants to show consistency, it must ensure that the Quebec nation's representation is proportionate to its historic, economic and cultural significance, proportionate to its weight and what it is.
Moreover, the Conservative government is contradicting itself. On the one hand, it claims that it wants to increase the legitimacy of institutions, but on the other hand, it is trying to muzzle Quebec by introducing bills that will reduce the political weight of the Quebec nation. Clearly, the supposed recognition, as I mentioned earlier, was nothing more than empty rhetoric, since the Conservatives are incapable of taking any concrete action that would suggest true recognition.
It must be said that since the creation of the Canadian confederation, Quebec’s weight has declined constantly. I would point out that Quebec had 36% of the seats in 1867; if this bill were adopted, that would fall to 22.4%.
The members of the National Assembly are also in favour of the principle of maintaining Quebec’s weight. On Thursday, April 22, all members of that body, federalist and sovereignist, voted unanimously in favour of a motion against decreasing Quebec’s weight. Similar measures were adopted when previous bills were introduced by this Conservative government, which was trying to dilute the weight of Quebec. As well, the Quebec people also reject this bill, which would diminish the weight of Quebec. In fact, an Angus Reid poll conducted on April 7 shows that 71% of the population of Quebec opposes Bill C-12, which seeks to diminish Quebec’s weight. Now, 71% is a lot of people.
So the consensus in Quebec is that it is important to maintain Quebec’s relative representation in this House. That includes all of the members of the National Assembly and the 49 members of this House, two thirds of the members for whom Quebeckers voted. We are elected representatives, and we have democratic, popular legitimacy. This government’s refusal to take Quebec’s demands into account is only the last in a long series of examples demonstrating that recognition of the Quebec nation means nothing to this government.
If it were truly serious when it talks about reforming the democratic legitimacy of institutions, the government would abolish the Senate and ensure that the weight of the Quebec nation, which has been officially recognized, is kept at 24.3%. In addition, as I said before, it would reform the democratic legitimacy of institutions by ensuring it has the support of seven provinces that together represent 50% of the Canadian population and acknowledging that a majority of Quebeckers oppose these issues.
April 30th, 2008 / 3:40 p.m.
John Whyte Professor of Law, College of Law, Law Foundation of Saskatchwan, University of Saskatchewan, As an Individual
Thank you, Madam Chair.
I want to begin by saying that it is a great privilege to be invited to participate in the deliberations of a national government, and I thank you for this invitation.
There is no doubt that the composition of the Parliament of Canada is anomalous. It is unsuited to prevailing principles of political legitimacy. This unsuitability arises from the appointment, not the election, of members of one of the two legislative chambers in a bicameral legislative arrangement; that is, a legislative arrangement whereby each house has the right to veto legislation.
It might be a mistake, however, to see this situation as an acute derogation from the democratic principle as it is typically worked out in complex rule-of-law states. There are always competing statecraft considerations, some that make the appointment of senators tolerable in a democratic state.
First, senators are appointed by the government, and therefore appointments reflect majoritarian preferences. They hold office for life, so the Senate provides a forum less dominated by intense political rivalry that arises from imminent elections. In recognition of the higher democratic legitimacy of the Commons, the Senate is generally careful and restrained in its exercise of veto.
The purpose of the appointed Senate is to represent divisions, regional and provincial, that are less well reflected when there are closer party ties.
The function of the appointed chamber is to consider legislation on bases less partisan than those in the Commons, in which the defeat of a measure can trigger an election.
As Bill C-20 says, it is “a chamber of independent, sober second thought” and there is a good reason for it. Indeed, the composition of the Senate is anomalous, but it is not statecraft without good purposes. It is not something that a democracy like Canada cannot tolerate.
Nevertheless, the case for changing it in order to establish ongoing democratic accountability for legislative actions is strong. A democratic state is one in which popular approval of lawmakers is the norm.
But the changing of the Senate needs to be carefully considered. My friend Professor Mendes has already told you what he thinks are the possible downstream imperfections that are likely to be produced by this change and other changes.
Here are some sensible questions. If elections are not for a term, but until age 75, in what way is ongoing democratic accountability actually enhanced? If term appointments are for 15 years non-renewable, again how is accountability enhanced? Is not the basis on which senators are currently appointed their support by a political party? And is that not the same basis upon which we put people on a ballot for election? And is not the appointer of the senators the party that generates the most votes? And are those not exactly likely to be the senators who win in the consultation process? Are we actually changing anything?
If the Senate is designed to reduce partisanship in the consideration of legislative proposals, will the proposed electoral process undercut that aim? If the Senate is meant to reflect regional interests, will the force of party discipline and loyalty that is generated through elections diminish that purpose? If the fact of appointment of senators creates a restraint on the Senate to not normally frustrate the Commons, will this restraint disappear with electoral choice? Will the rules of responsible government collapse? Will the underlying requirement that a government must be able to achieve its legislative agenda disappear?
But as sensible as these concerns are, as appropriate as it is to worry about what we might be doing with Bill C-20, the bigger question is actually about process. In the past 22 months the nation has been faced with three government initiatives of major constitutional significance with respect to the basic structure of our national Parliament: the idea of term limits on Senate appointments; the refusal, except in one case since the formation of the current government, to fill Senate vacancies; and finally, the establishment of electoral consultations for the appointment of senators. Each of these initiatives presents serious questions concerning constitutionality.
I believe the first violates section 38 of the Constitution Act, 1982. The second clearly continues to violate by the day section 32 of the 1867 Constitution, where there is a mandatory requirement to appoint senators on vacancy. And the last, the one we're considering today, violates sections 42 and 38 of the 1982 Constitution.
Moreover, each alters or will alter the way Parliament works, the way the branches and agencies of the national government represent and reflect interests, the way that interests will be accommodated, and the way political relationships operate. All of these changes in the structure of government are occurring without analysis, debate, or choice among alternatives. We are experiencing an attempt to reconstitute the national Parliament in the absence of constitutional discourse. This makes sense, of course, if the government wishes to precipitate change, any change, but is indifferent to the effects of that change, notwithstanding the permanence of the changes that are being made.
One of the reasons we have a Constitution and a constitutional amending process is to force governments that simply wish things were otherwise not to unilaterally make changes without reasoned debate and the careful building of consent that is meant to be part and parcel of constitutional politics.
It may be that it is cumbersome or inconvenient to amend the Constitution to provide for an elected senate, but making it cumbersome and inconvenient to change a law or process is of course the purpose of putting that law or process into the Constitution in the first place. The inconvenience of changing the law is designed precisely to force us to have those inconvenient conversations that we might not otherwise have, except for the fact that for one reason or another our predecessors judged it was important that we do so.
In this case, we know the reason of our predecessors. It was part of the Confederation bargain with the existing political communities of Canada—an agreement, by the way, whose force and moral meaning in our nation is not spent. Our fidelity to the constitutional text and process dictates that we live with the determinations made by our predecessors. If we want to change Canada’s Parliament, we must engage in the constitutional processes set out in part V of the Constitution Act, 1982.
I don't want to be naive about this. Intergovernmental constitutional reform of the sort required by sections 38, 41, and 42 is likely to be held up by traditional demands: from Quebec, amendments that could produce Quebec’s consent to the 1982 Constitution; and possibly, through convention, from national aboriginal organizations demanding participation and inclusion in the reforms.
Of course, it might be even more difficult than we imagined. Any change to the Senate may well affect the provisions relating to Quebec alone, the ones relating to regional representation from within the province, and might not be satisfied merely by consent of a seven-and-fifty formula but would require Quebec's actual consent. I don't mean to minimize the difficulty.
This difficulty gives rise to the belief that there must be some route for legislated Senate reform. But there isn’t. We need to be nation enough to conduct these inconvenient discussions. We might benefit from them.
When I spoke to the Senate a year or so ago on Bill S-4, I said that the situation of general discomfort with the current Senate, the apparent small space available for unilateral constitutional amendment, the simple appeal to democratic values, and the mistaken popular sense that the Senate is not terribly significant in national governance have all worked to license constitutional reform that may be initially appealing but is being pursued, I think, irresponsibly.
Turning specifically to Bill C-20, the plan to seek electoral advice on whom to appoint to the Senate is quite simply a change in the method of appointing senators: the precise language of paragraph 42(1)(b) of the Constitution Act, 1982, the precise matter that is precluded from unilateral federal change.
There are four reasons legislative reform through Bill C-20 is constitutionally difficult.
First, paragraph 42(1)(b) talks of the ”selecting” of persons for appointment, not the means of appointment. The method of selection will now be that government will consider—and under the normal imperatives of electoral politics—only those who win elections to determine who should be selected for Senate appointment.
Is it not ironic that in seeking to justify this initiative to democratize the Senate, the reformers assert, and must assert, that they do not at all consider themselves to be bound by the democratic process they now so badly want?
Second, by section 32 of the Constitution Act, the discretion to determine who is fit and qualified to be appointed to the Senate is assigned to the federal cabinet--it says the Governor General, meaning the cabinet. Bill C-20 has constructed an electoral mechanism to advise the Senate as to who should be appointed.
A clear constitutional responsibility specifically assigned to a particular agency of government is to be eroded or constrained by another element of public government--the electors. In administrative law we say that the statutory decision-maker has declined its jurisdiction, or it has submitted to dictation from an external source, or it has fettered its discretion. These actions are all ultra vires.
Of course, it will be argued that the consultation process and its results will not curtail cabinet discretion, and that consultation is not designed to limit the list of those considered for appointment, but to add names to that list--one that also contains names not resulting from election.
If one reads Bill C-20 one will see it is not believable that consultation will not determine for the cabinet who is to be selected. The size of the process; the visibility of the process; the context of a federal general election and its heightened political engagement, in most cases; the political energy and the higher public attention paid to province-wide votes--bigger votes than any member would ever experience--all preclude the possibility of cabinets disregarding these electoral results.
The saving clause of Bill C-20, that this process is to ascertain the preferences of electors on appointments to the Senate “within the existing process of summoning senators”, does not save the bill’s constitutionality. Indeed, the precise process of summoning--orders in council--is not altered. It is the method of selecting senators for summoning that the government seeks to alter, and that is exactly what paragraph 42(1)(b) states must be accomplished by formal constitutional amendment.
Third, the electoral process in the bill does not satisfy the specific requirements relating to appointing senators from Quebec. Arguably, the cabinet could overlay the electoral process in the new act with the constitutional constraint that all Quebec appointments will match the electoral districts to be represented, but in province-wide elections this is not likely to be possible, barring, of course, the decision to simply ignore subsection 23(6) of the Constitution Act of 1867. In fact, that would have to happen, since Quebec would not tolerate a voting system that was not followed in Quebec alone.
There are other differences between Bill C-20 and the Constitution. There are differences relating to qualifications, citizenship, and age. There's the difference between section 32, which makes appointments mandatory, and Bill C-9, where it makes the convening of a consultation process discretionary. There are significant differences between the constitutional requirements and the process established by Bill C-20. This is not necessarily unconstitutional. In operation, the chances of its being unconstitutional are almost absolute, but it is not necessarily unconstitutional because it's possible that the administrators of Bill C-20 will ignore, in order to comply with the Constitution, all its provisions. This seems unlikely.
Finally, the Constitution is not a tax code. It requires fidelity to its structures, its relationships, its designs, and its principles. The proponents of the amendment have admitted that they are unable to institute an election process since they have taken what is obviously an election process, kept all its attributes, and then changed it to a “consultation”. Then, in the “whereas” clauses, they seek to deny both the purpose and the effect of the legislation. The process they call consultation is in fact an election in everything but name.
It would bring Parliament into disrepute, and it would do grave damage to the Constitution, to our constitutional commitments, and to the rule of law, if Parliament attempts an obvious and self-confessed sleight of hand to amend the Constitution in contravention of amending provisions.
April 16th, 2008 / 3:35 p.m.
Fabien Gélinas Associate Professor, Faculty of Law, McGill University, As an Individual
Thank you, Madam Chair.
Good afternoon, everyone.
I would first like to thank the committee for inviting me to participate in your work in this way. It is an honour and a pleasure. Well, maybe we will see about the pleasure later.
I was not able to prepare a written report, for which I apologize, but I did bring some notes that I gave to the clerk to facilitate the work of the interpreters and, as a result, the work of committee members.
We are here to shed light on Bill C-20, An Act to provide for consultations with electors on their preferences for appointments to the Senate.
In order to prepare a sufficiently big picture for the committee, I followed the evolution of Bill S-4, which is now Bill C-19, dealing with the length of senators' terms. In so doing, I was also able to read the comments of Professor Hogg who is here with us and to whom I extend greetings.
The two bills on Senate reform remind me, in a number of respects, of the two best-known lovers in western theatre, Romeo and Juliet. We may ask ourselves whether they are really meant for each other. Are they ever going to end up together anywhere but in the great beyond? Another question comes to mind. Will the death of one, real or feigned, cause the death of the other? Questions like that arise. And everything is still possible at this stage.
So I propose to focus my introductory remarks on Bill C-20 considered separately and apart from the other bill, and to broaden my comments during the discussion if the members of the committee consider that useful.
As a constitutional lawyer, I naturally asked myself if the bill is valid constitutionally. In legal terms, the answer seems quite simple. The bill does not seem to change any provision of the Constitution within the meaning of section 52 of the Constitution Act of 1982. The constitutional amending procedure in section 38 of the act and those following does not come into play. It simply does not apply.
Nevertheless, in our political system, everyone can appreciate the limits of the legal provisions that are enshrined. It is clear that passing the bill may well have a major impact on the functioning and the balance of our political institutions. The impact will be felt by the normative, or conventional, effect of the Constitution, the conventions of the Constitution that are unwritten, and not in the law, but that nevertheless are binding.
Since we are talking about choosing senators, the problem here, in summary, comes from section 24 of the Constitution Act of 1867, which gives the Governor General the exclusive legal power to appoint senators. Section 24 makes no mention of the Prime Minister, however often it is informally said that senators are appointed by the Prime Minister.
We know that the conventions of responsible government establish that Governors General exercise most of their powers only with the advice of their ministers. The conventions stipulate that the special power described in section 24, the power to appoint senators, is exercised with the advice of the prime minister. This is one of the so-called special prerogatives.
The legal power enshrined in the Constitution belongs to the Governor General, therefore. Because of a constitutional convention, he or she exercises that power only in accordance with the advice of the prime minister. The convention exists because of the principle of responsible government, which, in the British parliamentary system, is a means of ensuring the operation of democratic principles.
The Bill under study organizes the mechanisms of an optional consultation process that might well look like an election for senators. These provisions in no way require the Governor General to appoint the senators receiving most popular support at the end of the consultations. They do not even require the Prime Minister to accept the result of the consultation when formulating his advice to the Governor General. In fact, no requirement is placed on the Governor General or even on the Prime Minister. There is therefore no impact on section 24 of the Constitution Act of 1867.
As I have already mentioned, the bill may well have a significant impact on the conventions of the Constitution. The current Prime Minister is almost obliged, politically, to be bound by the results of the consultation. If he so declares himself, either before or after the legislation is passed, and if he then moves to make appointments as a result, he is demonstrably laying the foundation for a constitutional convention. This would be confirmed, in my view, only if his successor saw fit to be bound by the same rules.
The requirements for a convention to be established are generally considered to be precedents, a feeling of obligation on the part of the political actor involved, and a reason for the rule. What I would like to highlight here is this reason for the constitutional norm that is the subject of our attention.
There is a reason for the conventional rule that transfers the Governor General's power in section 24 of the Constitution Act of 1867 to the Prime Minister, and the reason is the democratic principle. The conventional rule apparently sought here, to transfer the power of elected people—the power accorded to the Prime Minister acting with the confidence of the House of Commons—to voters, that is, the people who would be consulted, is the democratic principle too. The concept of democracy is also described in the first paragraph of the preamble to the bill. These are two different concepts—that is what I want to underline here—or at least two very different ways to put the democratic principle into operation. The first takes the familiar and well-paved road of responsible government in the House of Commons. The other cuts a largely uncharted path through our political system.
The Supreme Court has already had the opportunity to study the protection provided by constitutional law to the rules of responsible government. The principle of responsible government is definitely, but somewhat uncertainly, enshrined in the Constitution and protected from unilateral change by Parliament, or by a provincial legislature in the case of an amendment to a provincial constitution. This protection is guaranteed, both federally and provincially, by section 41 of the Constitution Act of 1982 that, as you know, requires unanimous consent to amend the offices of Governor General and Lieutenant Governors. This is a way to protect the principle of responsible government under the Constitution. In the case of the Senate, this protection is guaranteed in section 42 of the procedure for amending the constitution, which protects section 24 of the Constitution Act of 1867 from unilateral amendment.
This leads me to suggest that, if the bill went any further in limiting the Governor General's decision-making under section 24, it would move into an area of constitutional uncertainty.
But, in my view, this is not the case here. If we consider the bill in isolation and in its current form, I believe that no fault can be found with its constitutional validity.
Politically, however, I would say to sum up that the idea that lies beneath the intended reform deserves serious attention. Although it claims to uphold the democratic principle, it introduces a foreign element into our system whose consequences do not seem, to me at least, to be sufficiently clear.
Senate Appointment Consultations Act
February 12th, 2008 / 12:40 p.m.
Gord Brown Leeds—Grenville, ON
Mr. Speaker, I welcome the opportunity to speak about Bill C-20.
Electoral reform is something that I hear about often from my constituents in Leeds—Grenville. Always at the top of their list is what we are going to do about the Senate. I would like to take this opportunity to give a bit of the history of discussions about changing the Senate in our country.
First, dissatisfaction with the Senate as produced for us by the Fathers of Confederation--the Senate being something which they spent more time talking about than any other subject at the conferences leading up to Confederation in 1867--began almost immediately.
In 1874 there was an extensive debate in the Parliament of Canada about reforming the Senate and in particular, the appointment process, but nothing happened.
In 1887 at the first interprovincial meeting of premiers, there was a call for an elected Senate, but nothing happened.
In 1906 through to 1909, there were extensive debates in both federal houses about Senate reform, but again, nothing happened.
In 1921, Liberal leader Mackenzie King included Senate reform in his party's election platform. This was followed by extensive debates in both houses in 1924 and 1925 on the need for reform of the Senate, and again, nothing happened.
At the 1927 Dominion-Provincial Conference, Senate reform was a main topic of discussion. All the politicians said there was a need for reform, but again, nothing happened.
There were extensive debates in the Senate in 1951 and in the House in 1955 on the need for Senate reform. Again, nothing happened.
In 1965, the Pearson government, following up on a bill introduced by the previous Diefenbaker government, was able to have passed through Parliament an amendment reducing the terms of senators from life to age 75. That was not very revolutionary, to say the least. And that was it. There has really been no change in the formal structure of the Senate since that time.
In 1972, a special joint House and Senate committee, the Molgat-McGuigan committee, held extensive hearings across the country and recommended the need to reform the appointment process for the Senate, if nothing else. Again, nothing happened.
In 1978, the Trudeau Liberal government proposed a bill which would abolish the Senate and replace it with a new body to be known as the house of the provinces, with at least half of the members chosen by the provinces. Again, in the end, nothing happened.
After that, there was a series of commissions and studies: the Pepin-Robarts committee in 1979; the Quebec Liberal Party beige paper in 1980; the House-Senate joint committee, the Molgat-Cosgrove committee in 1984; the Macdonald commission in 1985; the House-Senate joint committee, the Beaudoin-Dobbie committee, in 1992. All recommended basic reform in the appointment process, with election most often as the preferred option, but again, nothing happened.
One of the reasons there was this continued pattern of engaging in public discussion of basic Senate reform followed by no action was that often the argument was made that such reform could only be tied in with other more comprehensive constitutional changes. Thus, attempts at that method, such as what happened in the Charlottetown efforts, failed. The other reason is that the government could then use all of that as an excuse for why nothing gets done.
I am hearing the same refrain and the same arguments coming now from those who still do not want to reform the Senate, in particular, those in the Liberal Party. That is because continued inaction on this file is in their clear partisan self-interest.
However, this government, unlike all previous governments, has chosen not to hide behind these excuses and long history of non-achievement. We have decided to boldly move forward with that incremental reform that we know for sure the federal Parliament and government can initiate and accomplish on its own without going down the complicated path of formal constitutional amendments involving the provinces or some kind of wholesale reopening of the Constitution, something that we know would be very difficult.
In the first session of this Parliament, we introduced two quite modest bills to get the ball rolling in a very serious way to achieve Senate reform. There was Bill S-4, to reduce the term of all future Senate appointees from the current potential of 45 years, something which my constituents find quite offensive, in that someone who is appointed at age 30 is able to sit until the mandatory retirement age of 75. We wanted to change the term to eight years.
The bill would provide for the ability of the Prime Minister to consult Canadians on their preferences as to who should serve them in the Senate before making such appointments.
What is the actual atrocious record of Senate appointments that both major political parties, while in government, not including the current government, have been of guilty since Confederation?
Sir John A. Macdonald, our first prime minister, in 19 years of office appointed only 1 Liberal and 1 Independent. The rest were all Conservative. I would personally not see that as a bad thing.
However, as I go on, Sir Wilfrid Laurier in his 15 years in office appointed only Liberals.
Sir Robert Borden, in his nine years of office appointed only Conservatives, except when he led a union coalition government during the war.
Mackenzie King in his 22 years in office appointed 103 senators and all but 2 were Liberals.
Louis St. Laurent in his nine years in office appointed fifty-five senators and all but three were Liberals.
John Diefenbaker in his six years in office appointed thirty-seven senators and all but one were Conservative.
Lester Pearson in his five years in office appointed thirty-nine senators and all but one were Liberal.
Pierre Trudeau in his 15 years of office appointed 81 senators and all but 11 were Liberals.
Joe Clark in his nine months in office appointed eleven senators, all of them Conservative.
Brian Mulroney in his nine years of office appointed fifty-one senators, some of whom are still sitting in the Senate today, and all but two of them were Conservatives. One of the two was Stan Waters, appointed as a Reform senator by Mr. Mulroney due to his election by the voters of Alberta in the spirit of Meech Lake, which we all know failed in the end.
Jean Chrétien in his 10 years in office appointed 75 senators and all but 3 were Liberals.
Paul Martin in his 23 months in office appointed 17 senators, only 5 of whom were not Liberal.
Neither Kim Campbell nor John Turner appointed any senators, although Turner did Trudeau's bidding in that regard, as we know. It was something that was very prominent in the election of 1984.
I have had an equal opportunity to be a critic of both major parties that have held office. However, when it comes to the current Prime Minister, we finally have a breaking of this historical pattern.
Since taking office only 21 months ago, the Prime Minister has only made 2 appointments to the Senate, and there are currently 13 vacancies. One of those appointments, Senator Fortier, was to ensure that the island of Montreal was represented in the cabinet, with the commitment from that appointee that he would resign his seat in the Senate as soon as the general election was called, and seek election to the House.
The other was the recent appointment of Senator Bert Brown on the basis that he, on two separate occasions, was democratically chosen by the people of Alberta as their preference to be selected to serve in the Senate.
Therefore, the government has done as much as it can to break this pattern of no action on Senate reform. It is now up to the opposition parties in the House and the Liberal majority in the Senate to wake up and smell the political coffee. There will either be reform or Canadians might well choose abolition.
I have laid out quite clearly the history of what has happened in terms of efforts to reform the Senate, but the bill goes a long way toward moving the ball forward, which Canadians support. I I urge the other parties to support the bill.
Constitution Act, 2007 (Senate tenure)
November 16th, 2007 / 10:55 a.m.
Brian Murphy Moncton—Riverview—Dieppe, NB
Mr. Speaker, I cannot answer the question yes or no. Again, if the member is going to be ill, I think there are provisions in the lobby to take care of him.
The point is that the Senate itself proposed 15 years when this bill went through the Senate as Bill S-4. Then it was killed by the government when it pulled the plug on Parliament. If we are to go through all this again, there will be recommendations with respect to the number of years.
Obviously, it is a matter of debate as to whether we go to eight, twelve, fifteen, or whether we can go to anything without a constitutional amendment process. That is really the issue.
We should hear from the provinces, see what they want and talk intelligently about debate. However, if there is a gun to our heads, then all of this is for naught. It will never take effect because a constitutional amendment formula has to kick in.
Second, the government's math is always a little crazy. It says that a committee sat for 199 days and avoided a bill, or something. If the 199th day comes up and the committee sides with Conservative Senator Segal and abolishes the Senate, why does the government not just skip to that stage now, because that is what it really wants?
I suggest the Conservatives should be direct with the Canadian people and say that they do not like the Senate because it is Liberal dominated. They would plug the Senate full of Conservative senators if they wanted to pass the ever popular HST of the day, but otherwise, they have no use for it. That is my answer.
Resumption of Debate on Address in Reply
Speech From The Throne
October 22nd, 2007 / 5:40 p.m.
Scott Reid Lanark—Frontenac—Lennox and Addington, ON
Mr. Speaker, I regret to inform you that the riding I represent is actually Lanark—Frontenac—Lennox and Addington. While I love Renfrew county very much, as I used to cottage there as a kid, I do not have the good fortune to represent it. For what it is worth, I have not had a Speaker yet who has not screwed up the name of my riding in some way or another, so I will add this to the list.
I am here to talk today about our very exciting democracy agenda. Since this government came to power about a year and nine months ago, it has engaged in the most assertive approach to improving Canada's democracy of any government in the country's history. It is exciting to be a part of such a government.
I want to list some of the democracy measures that we have put forward and then I will talk in a little more detail about them.
If there is time, and I hope there is, I will be dividing my time with the member for Regina—Lumsden—Lake Centre.
We have had eight pieces of legislation that have dealt with democracy and I have divided them into three headings. It seems to me that there are three fundamental theme areas. We have dealt with greater accessibility to the polls for voters. We did that by putting forward legislation that created more advance poll days and more geographically dispersed advance polls allowing people, particularly in areas of the country where advance polls were not easily accessible, access to those advance polls thereby ensuring that we could help people to vote in greater numbers and with greater ease. Nunavut comes to mind as perhaps the best example of this.
We have put forward several pieces of legislation that deal with greater security of vote, greater transparency and honesty in our voting. Bill C-31, which essentially deals with electoral fraud, has put in new requirements for voter identification that will significantly reduce the potential for voter fraud in ridings. That passed with widespread support in the House of Commons. All parties, except the New Democratic Party, were enthusiastic in their support for it.
Bill C-2, the Federal Accountability Act, had provisions ending the role of corporate and union contributions in our electoral process. This is a very healthy thing for an open and transparent electoral process where money no longer plays a role.
Bill C-54, which dealt with election loans and the loophole that was exploited by so many Liberal leadership candidates in terms of getting loans and then finding ways to potentially get the terms of those loans rewritten after the fact, shut down that loophole. This is also a very important part of ensuring openness and transparency in our election financing laws.
The areas that I would like to concentrate on today are the four pieces of legislation that are working toward providing greater democracy in the most direct sense to our representative system: the legislation the government put forward dealing with the election of senators and with the creation of eight year terms for our senators, Bill S-4, which was presented in the Senate in the last term; the legislation, which was passed, creating four year terms and fixed election dates for the House of Commons, which removes the capacity of prime ministers to call elections when the polls are convenient, something that was used extensively by Mr. Chrétien when he was prime minister and had been used by other prime ministers in the past; and finally, Bill C-56, which introduces greater representation by population in the House of Commons.
I want to concentrate on greater democracy in the Senate and then greater democracy in the House of Commons, the two areas that are the most detailed proposals put forward by the government in this area of greater democracy.
Let me start with the Senate and the election of senators.
We talked about introducing in Bill S-4, the idea of eight year terms for senators. This was found to be constitutional in the upper House reference case of 1980 by the Supreme Court of Canada. The court indicated, in rough terms, the length of term would have to be fixed. There would have to be four senators in order to fulfill the constitutional obligation. Senators would be exempt from the kinds of pressures that re-election causes and that short terms could cause that might affect the voting patterns of an individual in either that House or this one.
I note that before the Liberals in the upper House decided to vote against this bill, the Leader of the Opposition indicated that he was perfectly happy with fixed terms. Therefore, we hope he can assert that love he had of democracy and bring his unruly senators into line when this bill is reintroduced.
The upper House was intended as a House of sober second thought, not of partisan second thought. The intention was not that the upper House become what it has become, a House of patronage.
In explaining the spirit of the bill, I wanted to make the point that the upper House has wandered very far from its original intention of being a House of sober second thought. Senators unfortunately are, as a rule, not appointed based upon their merits. They are appointed based upon their partisan affiliations.
Let me quote from former Senator Dan Hays in a presentation he made to a Senate committee on May 25 of this year. He made the following statement:
In the appointments made to the Senate by Prime Minister Mackenzie King, only two of the 103 were not Liberals. Under Prime Minister St. Laurent, only three of the 55 appointments were not Liberals. Under Prime Minister Diefenbaker, only one of the 37 appointments were not Progressive Conservatives. Under Prime Minister Pearson, only one of the 39 appointments was not Liberal. Under Prime Minister Trudeau, 11 of the 81 appointments were not Liberals. Prime Minister Clark made eleven appointments to the Senate and all were Progressive Conservatives. Under Prime Minister Mulroney, only two of the 51 appointments were not Progressive Conservatives. Under Prime Minster Chrétien only three of the 75 appointments were not Liberals. Under [the member for LaSalle—Émard], five of the 17 appointments were not Liberals.
The upper House has simply become a den of patronage and we are trying to break free from that. This is the point of Senate elections.
It is possible, I suppose, to consider abolishing the Senate. Our friends in the NDP have indicated that is their preferred approach. It is not my preferred approach. It is not the Prime Minister's preferred approach. Moreover it is a very difficult avenue to pursue because it requires the consent, depending upon which constitutional scholar one goes to, of either all the provinces, or at least seven provinces with half the population.
At any rate, it is a difficult avenue to pursue, but if it turns out that the other parties are unwilling to pursue elections to the Senate, it is clear that the abolition of the Senate is preferable to the approach of simply using it as a House of patronage, the pattern of course of previous governments, and in all fairness of both partisan stripes, in the past.
I want to talk for a moment about representation by population in the House of Commons. Bill C-56, introduced in the last session of Parliament, dealt with greater representation by population, a more equitable system in the lower House, and I am a great fan of this.
The representation by population formula that was incorporated in the original Constitution Act, 1867, has by reason of repeated amendment become less and less representation by population and more and more representation by population, with one exception after another. It was amended in 1915, again in the 1940s, in 1952, in the 1970s, in 1985, and each time it moved further and further from one person, one vote, the equality of voting, regardless of the riding or the province in which one lived.
This has produced the situation that there is now great disequilibrium. The bill attempts to bring back a measure of representation by population. It would introduce new seats for Ontario, Alberta and British Columbia. In the cases of Alberta and B.C., they have been brought right up to equality with the level that Quebec is at, essentially at the national medium number in terms of electors per MP.
Ontario would be below that, but far further ahead than they are now, and this is a major step, for the first time, in the direction of returning to the spirit of rep by pop that was part of the original Confederation deal for the lower House.
Resumption of debate on Address in Reply
Speech from the Throne
October 22nd, 2007 / 12:25 p.m.
Peter Van Loan Leader of the Government in the House of Commons and Minister for Democratic Reform
Mr. Speaker, I am very pleased to open the debate on today's theme from the throne speech: strengthening the federation and our democratic institutions.
We have a great, united country whose foundation is a solid federation and a living democracy. In fact, federalism and democracy have gone hand and hand throughout Canada's history.
Our country's history is one of people joining together to achieve great dreams thought impossible by the pessimists, but it is also a history of people who, through accommodation and respect, build practical, workable approaches allowing remarkable progress to unfold.
The project of Confederation was about bringing together the different regions into a strong and united country based on democratic practices and the rule of law. Sir John A. Macdonald, George-Étienne Cartier and the Fathers of Confederation, through strong leadership united Canadians in a federal union which would deliver a future of security and prosperity for the country as a whole. Their vision was strong and enduring, a firm foundation on which successive generations have built.
Our government is continuing this nation building project today with our commitments for strengthening the federation and our democratic institutions. Strong leadership and a better Canada: that is our objective.
I would like to spend my time today discussing the progress we have already made in this area and highlighting our plans for this new session of Parliament.
Our government made a commitment to practise open federalism, and it is taking steps to ensure that our country is prosperous and united.
Our approach is not new, but it is based on the very principles underlying Confederation.
The union was based on a simple concept: the division of powers between the federal and provincial governments. The objective was not to have a weak, passive federal government, but a government that would respect the provinces' areas of jurisdiction.
Provincial governments are closer to their citizens and are well positioned to determine local needs and aspirations. In contrast, the federal government is well placed to protect the national interest in pursuit of the common good of the country as a whole. As the project of our Confederation first became committed to paper in the Quebec Resolutions of 1864, this approach was clear:
In the Federation of the British North American Provinces, the system of Government best adapted under existing circumstances to protect the diversified interest of the several Provinces, and secure efficiency, harmony and permanency in the working of the Union, would be a general Government, charged with matters of a common interest to the whole country; and Local Governments...charged with the control of local matters in their respective sections.
The steps we have taken recently and the measures we plan to take to create a federalism of openness will produce unprecedented efficiency, harmony and stability in the union, as the Fathers of Confederation envisioned many years ago.
Our federalism of openness means respecting provincial areas of jurisdiction, and that, in turn, means two things. First, a federal government that shows leadership in its areas of jurisdiction. Second, a federal government that unites the country by introducing fair, respectful intergovernmental policies.
We have shown strong leadership in areas of federal jurisdiction, such as strengthening our economy by cutting taxes and helping families, in the process paying down billions on the debt and achieving the lowest national unemployment rate since I was a child; in international trade with the resolution of the softwood lumber dispute; in defence with our leadership in international aid efforts in Afghanistan; and in public safety and security with our agenda for making communities safer by tackling crime.
In the new session this leadership will continue with measures to strengthen Canada's economic union through internal free trade among the provinces; a commitment to action in protecting Canada's sovereignty, particularly in the Arctic; continued pursuit of a safer Canada beginning with the comprehensive criminal justice reforms in our Bill C-2, the tackling violent crime act.
We have treated the provincial and territorial governments with respect, which has strengthened national unity. To restore the fiscal balance within the Canadian federation, we have increased the main federal transfers and introduced a new stable, reliable, fair funding formula. We have helped build a better Canada with our historic recognition that Quebeckers form a nation within a united Canada.
Our 2007 budget contained an unprecedented long term commitment to rebuild Canada's infrastructure, amounting to a total of $33 billion over the next seven years, the largest federal investment in Canadian infrastructure in over half a century.
During this session, we will introduce a bill to place formal limits on the use of the federal spending power for new shared-cost programs in areas of exclusive provincial jurisdiction. This bill will formalize the commitments our government made in the 2006 and 2007 budgets, because it will specify the limits on federal power.
In keeping with how we see open federalism, our bill will also allow the provinces and territories to opt out of new shared-cost programs with reasonable compensation if they offer compatible programs. In addition to recognizing the provinces' and territories' ability to provide programs in their specific areas of responsibility, our bill will enable Canadians, wherever they live, to receive services comparable to those available under national programs.
Our diversity as a country serves as a source both of strength and innovation. Through our actions in open federalism, including equitable and predictable funding and clarified roles and responsibilities in our federation, we are offering a principles based approach on which all orders of government can continue to work into the future.
The vision of Macdonald and Cartier of a country united from east to west, of new Canadians and old, French and English, country and city, together dreaming great dreams and building a brighter future is alive and well and has a place deep in the heart of our government in 2007.
However, our Confederation must be more than the sum of its parts. The federal government must act as a leader in keeping the country strong and united and as a model for democratic values. To perform this leadership role, the democratic underpinnings of our government must be solid in order to continue to meet the expectations of the Canadians we serve. Our initiatives in the area of democratic reform demonstrate our government's leadership in this area. Nowhere is this more evident than our efforts to modernize our central democratic institution, a federal Parliament where the representation of both popular and provincial interests are united within the federal legislative process.
Since Confederation, Canada's Parliament has served the democratic interests of Canadians well, but the government must take action to ensure that this institution, which is the cornerstone of our representative democracy, remains strong, vibrant and adapted to the needs of Canadians in the 21st century.
Our bicameral Parliament includes two houses, the lower house here which is comprised of elected representatives of the citizens of this great country originally founded on the fundamental principle of representation by population, and the upper house which was designed to represent the regions of the country to act as a chamber of sober second thought.
However, in the contemporary era, the Senate has been unable to credibly fulfill its role as an effective representative of the regions in the federal legislative process due to fundamental concerns with legitimacy and effectiveness of that appointed and unaccountable chamber. As for the other chamber, this one, the distribution of seats in the House of Commons has shifted too far away from the principle of representation by population, resulting in the unfair under-representation of the fast growing provinces.
Our government has already taken measures to address this situation as we promised during the last election with BillC-56 introduced in the last session to enhance the principle of representation by population in the House of Commons and give fast growing provinces the representation that their population merits, and by Bills S-4 and C-43 introduced in the last session to begin the long overdue project of Senate reform.
I would like to spend a few moments discussing Senate reform. It is a priority of our government that is urgently needed to modernize our federal Parliament. We put forward an agenda for the Senate reforms that is practical and achievable. As stated in the Speech from the Throne, we will continue to pursue this agenda with the reintroduction of two important bills.
The Senate tenure bill proposed a uniform fixed term for senators of eight years. Rather than leave the length of tenure as long as 45 years, as it is currently, our bill proposed that senators be appointed to a fixed term of eight years. This is a change that would bring renewal and relevance to the Senate. This change would improve the effectiveness of the Senate. It would ensure that senators' terms were long enough for them to gain the expertise and independence necessary to act as a chamber of sober second thought, but at the same time it would ensure that the terms would not be so long as to undermine the legitimacy and credibility of the Senate as a modern institution in what we seek to declare to be a democratic country.
Unfortunately, the current unelected unaccountable Liberal senators spent over a year delaying this legislation before they finally took a decision to not take a decision. This action alone, or inaction more accurately, demonstrates clearly that the Senate must change. Its current form does not function well on this issue, or at all.
As I stated, our government intends to reintroduce the Senate term limits bill this session. I hope that the summer recess gave opposition senators some time for that sober second thought in relation to their position of inaction on this bill where they have refused to exercise their constitutional obligation to vote on the bill.
Our second Senate reform, Bill C-43, offered a means for democratizing the Senate by providing Canadians an opportunity to choose and advise who they want representing them in the Senate. It would provide for the first time an opportunity for voters across this country to have a democratic say in who sits in their Senate. This should hardly be a difficult principle to embrace in a 21st century western democracy. It would provide greater legitimacy and credibility to the work of the Senate as a democratic institution.
I was extremely pleased to attend the swearing in of Senator Bert Brown last week. He of course was popularly elected by the people of his province. I hope that we can look forward to the day when the Senate appointment consultations bill becomes law and all senators arrive in Ottawa with a democratic mandate.
As the Prime Minister has indicated, when the Senate consultations bill is reintroduced, we will be sending it to committee before second reading so that collaboration can begin on this important step toward a democratic Senate.
There are some who have suggested that governing parties of the past could maintain the status quo in the Senate out of self-interest, that we could benefit from the patronage appointments to be made and stack the chamber with partisans who would serve for decades. Our government believes that the Senate should be a democratically elected body that represents Canadians. So far, we have taken concrete steps toward that vision and they are steps that are achievable in the short term. What is more, surveys show that our agenda for term limits in a democratized Senate is strongly supported by Canadians. Surely in a democracy this above all should be a key indicator of what constitutes a good democratic reform.
The Senate must change. If it cannot be changed, it should be abolished. In its current illegitimate form the Senate does nothing to enhance our democracy, even as we aim at the same time to promote democratic values abroad.
I would now like to address a second element of the democratic reform program that we will continue to implement during this new session of Parliament: strengthening the electoral system.
A strong democracy requires both modern democratic institutions and an electoral process with integrity that inspires confidence among voters.
We have already introduced a number of measures that were passed in the last session to improve elections, which were broadly supported.
For example, Bill C-2, the Federal Accountability Act—the first legislative measure we introduced—fulfilled our campaign commitment to clean up political funding. We levelled the playing field by banning donations from companies and unions, as well as large and secret donations, so that ordinary Canadians can contribute to the political process knowing that their donations will really count.
Bill C-4 was the first bill passed in the last session. We acted quickly to ensure that the party registration rules would not sunset and that those registration rules would remain in effect at all times.
With Bill C-16, setting dates for elections, we have established a four year electoral cycle, preventing snap elections from being called solely for the partisan advantage of the governing party.
As a result, after this House provides a mandate to govern when it approves the throne speech on Wednesday, we can look forward to the next election, now set in law to take place October 19, 2009.
In Bill C-31, we implemented wide-ranging recommendations of the procedure and House affairs committee for improving the electoral process, including important measures for reducing the opportunity for voter fraud, such as a voter identification procedure for federal elections.
In addition to these bills, which are now law, we introduced additional election reforms that did not have an opportunity to pass before we prorogued.
Building on our political financing reforms in the Federal Accountability Act, Bill C-54, our new bill to clean up campaign financing, proposed bringing accountability to political loans by eliminating loans as a means for circumventing contribution limits and establishing a transparent reporting regime for campaign finance.
Building on a number of measures for improving voter accessibility, Bill C-55, our expanded voting opportunities bill, proposed additional advanced polling days to enhance opportunities and encourage higher voter turnout.
During the second session of Parliament, our government will continue to strengthen the electoral process.
As stated in the Speech from the Throne, we will introduce measures that will enable us to confirm the identity of voters by requiring them to uncover their faces before voting. Like our other reforms, this concrete measure will improve the electoral process for all Canadians.
Public concerns raised about this issue during the September 17 byelections made it clear that we must act.
During meetings of the Standing Committee on Procedure and House Affairs in September, all parties approved the decision to prioritize resolving this issue.
Our government will act quickly to resolve this issue, and I hope that I can count on the support of all members of Parliament to give Canadians the strong, fair electoral process they expect.
There is so much that makes Canada great. We are mindful of the valuable legacy bestowed upon us by the visionary leadership of Sir John A. Macdonald, George-Étienne Cartier and the Fathers of Confederation when they rendered the blueprint for what has proven to be the best country in the world. But it is our strong foundations that enable us to continue building a better Canada that is a leader in the world.
Those foundations are our federal state and our democratic spirit, but we also know, as did those Fathers of Confederation, that as the world modernizes, so must Canada. That is in fact the spirit of Confederation. It is that spirit that leads us to seek ways to strengthen our democracy and improve accountability to Canadians. We must be a democracy worthy of that name in a 21st century world.
Our government has already put forward a full agenda to fortify and modernize our federation and democracy, and we will continue to do so this session. We invite all parties in the House to join us as we build a stronger Canada with a brighter future for the generations that will follow.
Canada Elections Act
June 18th, 2007 / noon
Peter Van Loan Leader of the Government in the House of Commons and Minister for Democratic Reform
That a message be sent to the Senate to acquaint their Honours that this House agrees with amendments numbered 1 to 11 made by the Senate to Bill C-31, An Act to amend the Canada Elections Act and the Public Service Employment Act;
And that this House agrees with the principles set out in amendment 12 but would propose the following amendment:
Senate amendment 12 be amended as follows:
Clause 42, page 17:
(a) Replace line 23 with the following:
“17 to 19 and 34 come into force 10 months”
(b) Add after line 31 the following:
“(3) Paragraphs 162(i.1) and (i.2) of the Canada Elections Act, as enacted by section 28, come into force six months after the day on which this Act receives royal assent unless, before that day, the Chief Electoral Officer publishes a notice in the Canada Gazette that the necessary preparations have been made for the bringing into operation of the provisions set out in the notice and that they may come into force on the day set out in the notice.”
Mr. Speaker, it will surprise nobody that I take great pleasure in having the opportunity to speak to the matter of sending a message to the Senate, but today it is to only send a message with regard to a bill to improve the integrity of the electoral process, Bill C-31.
This bill is part of our agenda to strengthen accountability through democratic reform. While it is by no means headline grabbing, the bill proposes a host of necessary changes and timely operational improvements to the Canada Elections Act that many of us welcome. These are aimed at, among other things, reducing voter fraud, because whenever a person votes who should not, that act diminishes a legitimate vote that has been cast.
The genesis of the bill was the 13th report of the Standing Committee on Procedure and House Affairs which was tabled in this place almost a year ago on June 22, 2006. Over the summer of 2006 the government studied the committee's recommendations and on October 24, 2006 implemented virtually all of them with the introduction of Bill C-31. We have introduced this bill because we, along with the committee, want to ensure that the democratic process continues to hold the confidence of Canadians.
The procedure and House affairs committee reviewed Bill C-31 in detail and reported the bill back with some amendments. In the spirit of cooperation and compromise, the government agreed to those amendments that had been supported at committee by the Liberals and the Bloc Québécois in opposition, even though we had voted against those at committee.
There is a key amendment in them. The bulk of the debate when it came to the amendments was about whether or not to include the birthdates of electors on the voters lists that are distributed to political parties and not just those that Elections Canada officials have. As I said, in committee the Conservatives opposed it, but when it came to the House we felt on election legislation of this type it was important to maintain a spirit of non-partisan interest and support across parties, so we gave up our opposition at that point to support it through report stage and third reading and send it to the Senate.
Then, to our surprise, since this was an amendment advanced and promoted by the Liberal Party, the Liberal senators were aghast and horrified that had been included. They chose to return to the original Conservative Party position of not including birthdates. Irony has no bounds when it comes to the Senate and Liberal Senator George Baker actually praised the senators for amending the legislation to take out the birthdate provision because it could have increased identity theft and allowed telemarketers to prey on senior citizens. Then he had the temerity to say that without the Senate, we would have had a bill that would have been a disaster. I guess what he was saying was if it were not for the Liberal Party, we would have had a bill that would have been a disaster, and that comment was from a Liberal senator.
I find that amusing because now we are in the circumstance of undoing what the Liberals in the House encouraged us to do. We went along with it in the spirit of non-partisanship to a point where we are responding to these amendments dealing with the birthdate provision. As I said, when we did it in a non-partisan fashion it was to ensure the bill passed to maintain, when it comes to electoral provisions, the spirit of non-partisanship. The Senate obviously felt differently.
The Senate amendments go beyond that. There are five categories. The first category deals with amendments related to bingo cards, which is what they are called. They are a way of helping scrutineers know who has voted. The second category deals with the coming into force provisions of the act. The third category deals with casual election workers. The fourth category deals with the use of birthdates, which I spoke about already. The fifth category is regarding penalties for the misuse of voters lists. I will address each of these in turn. Before I do that, I will say that this government is proposing that the House accept nearly all of the Senate amendments. However, we are proposing a small change to one of the amendments relating to the coming into force of the bill.
First, there are the “bingo cards”. The first group of amendments makes technical changes to clause 28 in the bill, which provides for so-called “bingo-card” updating of lists of who has voted on polling day. Essentially, this provision allows lists of those who have voted to be given to candidates' representatives periodically on polling day.
These lists can be used by candidates to assist in getting out the vote among their supporters. Candidates and their supporters are already entitled to keep their own lists of who has voted, but this mechanism will make the process more efficient and reduce the burden on candidate representatives at the polls.
Quebec has had a similar system for quite some time, and the name “bingo cards“ comes from the forms used there for this purpose. These forms include numbers corresponding to electors registered in the polling division. These numbers can be easily checked off when someone votes. In this way, the forms resemble bingo cards.
The bingo card provision was not in the bill when it was introduced, but was added by opposition members of the Standing Committee on Procedure and House Affairs when they studied the bill. The government agreed to this amendment in the interests of passing the bill as a whole. The Chief Electoral Officer appeared before the Senate committee studying the bill and asked that the provision be refined for operational reasons.
The senators agreed, and so the provision was amended in two respects: first, to exclude polling day registrants from being added to these lists. Polling day registrants do not have an assigned number and would need to be added to the lists manually, which would be cumbersome for poll clerks.
In addition, the purpose of bingo card updating is to facilitate the process of getting out the vote, which is targeted at registered voters that candidates have already identified through their lists of electors. Therefore, transmitting the names of polling day registrants would not advance this purpose.
Poll clerks will only be required to provide a list of those who have voted once on each advance polling day, after the close of advance polls. This measure will help reduce the administrative burden of the provision without hindering the effectiveness of the process.
The government agrees with these changes, as they will improve the operation of this provision. I therefore support passage of this amendment by the House.
Second, on the coming into force amendments, the provision in clause 42 was modified when the House committee reviewed the bill. Originally the bill was set to come into force within six months following royal assent, unless the Chief Electoral Officer was ready to implement it at an earlier time. This is the conventional approach for coming into force provisions for Canada Elections Act amendments.
After hearing from the Chief Electoral Officer, the House committee amended clause 42 to extend to eight months the coming into force of the provisions dealing with the national register and list of electors due to the need for updating computer systems at Elections Canada.
In addition, the House committee amended the bill to provide that the other provisions not related to the register, such as the voter identification provisions, would come into force within two months after royal assent. That is fairly easy because those are things that the elections officials already have to be trained to do in the cases where they now have to apply a reasonableness test for requiring identification. They will have to require it all the time. We are actually taking out a step, and therefore, it should not be hard to implement that.
Before the Senate committee the Chief Electoral Officer advised the implementation of the provisions related to the register would actually require 10 months rather than 8 months for implementation to allow time for thorough testing of computer systems. Therefore, the Senate amended clause 42 to allow 10 months for the coming into force of these provisions.
In addition the Senate made an amendment to clause 42 to clarify that the other provisions, such as the voter identification provisions, must come into force within two months of royal assent despite section 554 of the Canada Elections Act, which is the section that says that the six month implementation applies. This would clearly be contrary to the intent of the House committee in requiring that certain provisions of Bill C-31 should come into force within two months of royal assent. That is why we are going with it. The technical amendment ensures that this intent is realized.
The government agrees with these two amendments from the Senate relating to the coming into force provisions. I propose that the House accept these Senate amendments.
However, I should make clear that there is one we have problems with. The Senate also amended clause 42 to include the bingo card provisions I mentioned earlier within the group of provisions coming into force within 10 months from royal assent.
The rationale was that this change is affected by the register and it needs the same amount of time to implement as the other changes to the register. However, as we all know, there are already line numbers included on the list which are used by campaign volunteers to monitor voting and get out the vote on election day.
In light of the other amendments that we have accepted for facilitating the operation of the bingo card system, we do not see why it would take months to implement these new provisions. Therefore, I am proposing that this amendment by the Senate be amended by the House to require that it come into force within six months from royal assent. Assuming the bill received royal assent some time this month, that would be in place for any election that would occur within the year 2008.
The third set of amendments is related to casual election workers. The government in the Senate proposed this third set of amendments. The amendments deal with the issue of the maximum period of employment for casual workers in Elections Canada.
When introduced, Bill C-31 amended the Public Service Employment Act to permit the Public Service Commission to extend the terms of casual workers beyond the 90 day per year maximum period that is currently set out in the act.
As was very cogently explained by the president of the Public Service Commission before the Senate committee that studied Bill C-31, it is her opinion that the Public Service Employment Act does not provide the necessary authority to allow the terms of casual workers to be extended.
The situation of elections particularly in a minority parliament context clearly demonstrates that it is sometimes necessary. Personnel at Elections Canada nearly doubles during an election and the organization depends heavily on casual workers with previous election experience. In the context of successive minority parliaments, Elections Canada must be prepared for a potential election call with little advance notice. As well, there is the potential of running more than one general election in a year.
Bill C-31 as passed by the House of Commons would have addressed this issue. As well, it would have permitted the Public Service Commission to respond on a case by case basis to other situations where casual workers may need extended terms such as the running of a census by Statistics Canada.
However, senators raised concerns in committee with the scope of the regulatory power because it was not confined solely to the elections context. As a result the committee defeated these provisions.
Given the importance of this matter to the effective administration of elections, the government responded with the introduction of amendments at report stage in the Senate to restore the amendment to the Public Service Employment Act, but to circumscribe it so it would apply only to election workers whose maximum term would be set out in the statute at 165 days. This amendment was then passed by the Senate.
It is vital to our democratic process that Elections Canada has the personnel and resources it needs to administer elections effectively and efficiently. This amendment would facilitate that objective and I urge all members to support me in passing it.
The fourth issue and fourth set of amendments deal with the issue of birthdates on the lists of electors.
As hon. members will recall, when Bill C-31 was first introduced it provided that the dates of birth of voters should be added to the lists used at advance and regular polls by poll workers only. These poll workers could use the date of birth as another tool to ensure the integrity of the vote. For example, they could use it to confirm the identity of voters or to differentiate between voters with the same name. In accordance with the recommendation of the Standing Committee on Procedure and House Affairs in its 13th report, Bill C-31 did not provide for the dates of birth to be included on the lists distributed to candidates, MPs and parties.
When the bill was sent to the Standing Committee on Procedure and House Affairs after second reading, the Bloc and Liberal members of the committee passed an amendment to add dates of birth to lists distributed to candidates, MPs and parties. The Conservative members voted against this amendment in committee. However, we supported the bill as a whole when it returned to the House for passage because we recognized that sometimes compromise is needed.
When Bill C-31 was in the Senate, senators disagreed with those opposition amendments and effectively restored Bill C-31 to how it was when introduced—in other words, by having the date of birth on lists used by poll officials, but not on lists distributed to candidates, MPs and parties.
Obviously, the government is amendable to this change. It was never our intention to distribute birthdates more broadly to political participants.
Therefore, we propose supporting these Senate amendments as well. That said, in a minority Parliament, this is not our choice alone and it will be up to opposition members to decide.
I must say it is remarkable because I personally had to go to that Senate committee and defend the Liberal amendment to put the birthdates on the lists from Liberal senators who said it was shocking and abhorrent. Again, Senator Baker said that “Without the Senate, in this particular instance, we would have had a bill that would have been a disaster”. The Liberal amendment would have made the bill a disaster, so the Liberals in the Senate have changed it.
We just want to get along with everybody. We are trying to make things work. We have been trying to seek consensus on this one and I know we keep going back and forth, and I keep going to the Liberal House leader seeking consensus. I think we now have a consensus, or a partial consensus, but at least one that the Senate will accept.
I know members from the Bloc are not happy with it and I know it restores our original position which we were willing to give up in the spirit of compromise because that is indeed the spirit I and this government have always tried to pursue in the House. That is what we will be doing and I am pleased that eventually that game of ping-pong between the Liberals in the House of Commons and the Liberals in the Senate, on this issue at least, will change.
I hope that it can change on Bill S-4, the Senate term limits bill, and hopefully the Liberal senators will listen to their leader and actually make the decision to move forward with that. I also hope in regard to the budget that they would respect the will of the House of Commons, but that remains to be seen.
The fifth issue relates to the higher penalty for misuse of voters' lists. The fifth last and last group of amendments arose out of the Senate's discussion on the distribution of electoral lists generally. Currently, the Canada Elections Act provides that anyone who knowingly misuses personal information on the lists of electors is guilty of an offence. The penalty for that offence is set at a maximum fine of $1,000 or up to three months imprisonment, or both. The Senate proposes that this be increased to a maximum punishment of a $5,000 fine and one year imprisonment.
In an era of increasing identity theft there should be serious penalties for the misuse of personal information, particularly when obtained through the electoral process. The proposed amendments would provide a better deterrent to those who may be tempted to misuse personal information on the lists for financial gain. Therefore, I am in agreement with those amendments and I propose that they be accepted by this House.
I proposed that many messages be sent to the Senate, but on this occasion I am proposing we send a message advising that the House accepts amendments 1 through 11, but that amendment 12 be amended further to provide that the bingo cards come into force within 6 months from royal assent rather than 10. It is my hope that this important bill with these changes can be given royal assent before the summer recess.
As I have mentioned on other occasions, this bill makes a number of changes to the electoral process that will reduce the opportunity for electoral fraud, improve the accuracy of the national register and the lists of electors, facilitate communication with the electorate and improve the administration of elections.
These are changes that will be of benefit to all parties, to all candidates, and to all Canadians because it will make our electoral system, and in turn our democracy, stronger.
These amendments before us today propose refinements to the bill and I hope they can be dealt with quickly, so this bill can be passed into law. It is our responsibility as parliamentarians to ensure that the electoral process is updated so that it operates with the integrity that Canadians expect. The sooner that we pass this bill, the sooner its provisions can be implemented and our democratic system strengthened.
Canada Transportation Act
June 14th, 2007 / 11:05 a.m.
Brian Jean Parliamentary Secretary to the Minister of Transport
Mr. Speaker, I listened to my friend and sat with him on the committee. I thank him and the other members of his party who helped us move this along.
I want to confirm with him that I did have the opportunity, in relation to one of his comments, to tour the constituency of Lévis with the Conservative member for Lévis—Bellechasse, who is working very hard for his people. I had an opportunity to see the Quebec Bridge and some of the rail yards in the area.
From the government side, we have taken great consideration on noise and vibrations and we have added vibrations to the test itself. Under section 95.1, it states:
When constructing or operating a railway, a railway company must cause as little noise and vibration as possible, taking into account...
It seems very clear that there are three different issues, three different tests, on what is reasonable and what is not. First, how would that act to restrict the amount of noise so people could live in that area with comfort?
Second, there is the Constitution Act of 1867 which clearly lays out that the Senate does have some authority in this place and for the Government of Canada. If the opposition would support Bill S-4, it would clearly bring some accountability to the Senate and it would change the way government takes place. That is why the government is moving forward with this initiative, and we would ask members from the other parties to support this so we do not have these discussions about lack of accountability in the future.
Canada Transportation Act
June 13th, 2007 / 8 p.m.
Brian Jean Fort McMurray—Athabasca, AB
Mr. Speaker, I understand the member's frustration with the other house. That is why I hope those members will support Bill S-4 and move forward with elected senators. That is a really good initiative.
I would like to thank the member and his party for their help on this particular piece of legislation. It was very helpful to hear from some of the groups. I think we worked cooperatively to get the best piece of legislation.
I cannot answer for the other place, but I can tell the member that I am confident with these two amendments that have been put forward that they will still meet Canadians' expectations from coast to coast to coast and in those communities that are mostly affected by noise. It will do a better job because case law is already established regarding the term “reasonableness”. I would suggest it will do a much better job than the changes would have done.
Senate Tenure Legislation
June 7th, 2007 / 2:55 p.m.
Scott Reid Lanark—Frontenac—Lennox and Addington, ON
Mr. Speaker, a year ago our government introduced Bill S-4, which would limit the terms of senators to eight years. All Canadians, except Liberal senators, apparently agree that the current 45 year maximum term for unelected senators is just not acceptable.
Yesterday, however, Liberal senators decided to hold Bill S-4 hostage, unless and until the government referred the bill to the Supreme Court, even though Canada's top constitutional experts and a previous Senate committee studying the issue have already deemed Bill S-4 to be fully constitutional.
Could the Minister for Democratic Reform update the House on this new development?