Bill C-7 (Historical)

Senate Reform Act

An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits

Part 1 of this enactment establishes a framework for electing nominees for Senate appointments from the provinces and territories. The following principles apply to the selection process:
(a) the Prime Minister, in recommending Senate nominees to the Governor General for a province or territory, would be required to consider names from a list of nominees submitted by the provincial or territorial government; and
(b) the list of nominees would be determined by an election held in accordance with provincial or territorial laws enacted to implement the framework.
Part 2 alters the tenure of senators who are summoned after October 14, 2008.

Senate Reform Act

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Madam Speaker, it is a pleasure to speak today to Bill C-7. I will begin by talking about the Senate and where it came from.

The Senate was established by the provinces. As everybody knows, Canada is a federation. Before Confederation, some individual provinces were working together, such as in the legislative Parliament of Canada, and Ontario and Quebec were in a confederation with the Atlantic provinces.

The origin of the Senate comes from Confederation. The provinces got together and decided they would have an elected House of Commons where most of the power would reside and then they would have a second body modelled after legislatures in other countries in which the members would be drawn from a class of people with a different viewpoint and it would be independent of the elected House of Commons. This legislature was established by the provinces when they got together to form the confederation that is Canada today. The existence and role of the Senate, the way it is composed and the way that senators are chosen is embedded in our Constitution.

The bill proposes to change how senators are chosen and, because that is a substantial change, I believe the only way to change how senators are chosen would be to amend the Constitution, which requires much more than an act of the House of Commons. In fact, it requires the participation of the provinces. It would require seven provinces with at least 50% of the population of Canada. It is my belief that the provinces should be involved in something that they helped set up in the first place.

We have a bicameral system, the House of Commons and the Senate, where the two bodies are supposed to be somewhat independent of each other. One should not be under the control of the other. They are supposed to think independently and have an independent point of view. Therefore, it should not be possible for one body to decide how the members of the other body are chosen. This is sort of a moral reason that we should not be acting unilaterally here in Ottawa to change how senators are chosen. We really should be consulting with the provinces and amending the Constitution.

If the government thinks that what it is doing makes sense from a constitutional point of view and really believes it is the right thing to do, I would challenge the government to go to the Supreme Court, as we have done with other questions, such as the lead up to the Clarity Act. The government should ask the Supreme Court if it thinks, in light of the Constitution, that this is a legal thing to do. That would probably save time, money and effort in the future when one or more of the provinces decides to challenge the act, if the bill is passed.

I would like to focus my remarks today on what I view as a contradiction and I will try to explain what the contradiction is.

The bill asks the provinces and territories to provide the Governor General with the names of people who could become senators. It is expected, by this legislation, that the provinces and territories would hold some form of election in order for the people of that province to choose a list of potential senators. It is a little bit strange because the legislation would not provide funding to the provinces to run these elections to choose a senator who will work in Ottawa. It is kind of strange that the federal government would not provide funding for these elections for which it is calling.

Because the legislation says that the provinces and territories would simply be nominating people, as a result of an election or by other means, somehow that is not a substantial change in how we choose senators. Somehow, because these recommendations are not binding on the Governor General or the Prime Minister, in effect, this is not a substantial enough change to trigger the requirement of the federal government to consult with the provinces before proceeding with this kind of change.

The contradiction is that if we are to take these elections seriously, if we really think we will be changing the Senate so that it becomes elected, which is one of the Es of the triple-E Senate that many members of the Conservative side, the reform side of the House, have spoken to in the past, we need to believe that these elections would have some force and that the Prime Minister would be bound in some way. If not legally, then in a moral sense, the Prime Minister would be bound to accept the results of these Senate elections.

If we are to take seriously the idea of having an elected Senate and that Bill C-7 would implement an elected Senate, then we cannot take seriously the argument that the bill is not a substantial change to how senators are elected and that somehow we do not need to consult the provinces. That is the essential contradiction.

Related to that there is another contradiction. A lot of people who have talked about Senate reform want the Senate to be more representative of the people of Canada. That is one of the motivations behind having an elected Senate. I think Senate reform is a good thing because, from what I have seen in my less than one year working here in Ottawa, senators represent a great source of experience and wisdom which would be too valuable to simply throw away, as some of my hon. colleagues would like to do by abolishing the Senate. The Senate is a very valuable source of advice and experience and sober second thought makes sense.

However, it has always been the case that the Senate, not being elected, has deferred to the elected House of Commons whenever there was a conflict. In the past, because the unelected Senate always deferred to the elected House of Commons, it was not such a big deal if, because of an historical artifact, certain provinces had a proportionally higher representation in the Senate than other provinces.

If we were to pass this bill and have an elected Senate, the Senate would have stronger powers. It would have a mandate from the people to sometimes challenge the House of Commons. It would have more power, which would be given to it by hon. members who want to reform the Senate, and there are such members on both sides of the House. At the same time as the Senate would be reformed in this way, we would need to face the fact that some western provinces, in particular Alberta and British Columbia, would be underrepresented. The other contradiction is that hon. members who want to reform the Senate would be handicapping the ability of Alberta and British Columbia to be properly represented in Ottawa.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Madam Speaker, under the Canadian Constitution, Canadians gave the Senate a role of regional representation in order to increase representation of the Atlantic provinces, given that they are in the minority in the House of Commons. The problem is that that objective has never been met. In fact, there is no regional representation. What we have instead is a political game where the government appoints its friends.

What does this bill propose to ensure that the role of the Senate is respected? Does this bill really resolve all the problems with the Senate?

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Madam Speaker, I want to thank the hon. member for her good question. In my opinion, the Senate needs to be reformed. Nonetheless, as the hon. member said, the problem is that this bill does not provide for Senate reform. It is true that the regions in our country are under-represented in the Senate at this time. I am totally in favour of a real reform of the Senate, but to achieve that we have to consult the provinces and the regions in order for the Senate to work.

[Jamie Nicholls, NDP, Vaudreuil—Soulanges, QC]

Madam Speaker, I heard my colleague say a number of times that reforming the Senate is a good idea. I have a few specific questions for him.

What would the Liberals do to reform the Senate? What do they propose, since my colleague says this would be a good idea? Is he in favour of having an elected Senate?

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Madam Speaker, I thank my colleague for the question. I am not an expert on the Senate, but I do have some thoughts on this issue. The problem with an elected Senate is that we do not currently have a mechanism for resolving conflicts between the House of Commons and the Senate. If the Senate were elected, it would be mandated by the people of Canada to exercise the power they confer upon it. Before senators are elected, we must study and establish, together with the provinces, a mechanism to resolve this conflict.

However, we can come up with other, very good possibilities. One that I like is establishing a committee to identify individuals in our country who are very experienced, who have played an important role and who are not usually active in politics. I am thinking of leading scientists, for example. It is very difficult to work in the sciences—doing research, for example—and to be actively involved in politics. In my opinion, this committee could look to such sectors for people who know Canada, who have played a major role in its history, but who are not usually involved in politics. They could be appointed to the Senate and contribute much to the work it does here.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Madam Speaker, I rise today to speak to Bill C-7, An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits.

I am pleased to have this opportunity today. I have a degree in political science and I am very interested in all matters pertaining to parliamentary process, especially Senate reform. It is a subject that I studied a number of times while in university. This is the third time that the Conservatives have introduced a bill dealing with either the election of senators or Senate terms. Thus, we have had a great deal of material to examine and analyze in recent years.

The purpose of the bill before us today is to reform the Senate in two main ways. The first limits the tenure of senators to a maximum of nine years for all senators appointed after October 14, 2008. The second allows the provinces and territories to hold elections, at their own expense, to decide the names to be submitted to the Prime Minister for consideration for future Senate appointments. The provinces could thus choose any system they liked for electing senators, provided that the system adhered to basic democratic principles.

The Conservatives say the measures they have introduced are intended to modernize the aging institution that is the Senate. For once, I agree with my Conservative colleagues on part of what they say: the upper chamber does in fact present major problems, and measures need to be taken to remedy the situation.

However, the solution the NDP has been proposing for several years is quite different. In fact, we are calling for the complete abolition of the Senate. The reasons why we are calling for the abolition of the upper chamber are very simple. First, the institution is not democratic, and it is composed of unelected members appointed by the Prime Minister. More often than not, those appointments are partisan and are made to reward friends of the Prime Minister. As well, he sometimes adds insult to injury by appointing candidates, and even ministers, who were rejected by the public in a general election, as we saw after the last election on May 2. The people living in the greater Quebec City region can attest to that as well.

In addition, the Senate is also used for partisan purposes by the government, whether to guarantee the speedy passage of government bills or to kill bills that have actually been approved by the House of Commons. I am thinking in particular of the Climate Change Accountability Act and the bill to provide generic drugs for Africa.

Since 1900, there have been 13 attempts to reform the Senate, and they have all failed. Bill C-7 is no different from all those other failed attempts. It does not solve the problems that already exist in the upper chamber, and on top of that it creates new problems that simply worsen the present situation. First, limiting senators’ tenure to nine years does not make them more accountable to Canadians; quite the contrary. In fact, the bill eliminates any form of accountability to the public, since senators would never have to face the public at the end of their tenure. Once senators were elected, they would never have to account for their decisions, their actions and their broken election promises, because they could never stand in another election. As well, they would be automatically entitled to a pension, regardless of their record.

I cannot see how having the Prime Minister give a senator a nine year non-renewable term increases democracy in the Senate. Nor do the measures proposed by the Conservatives in Bill C-7 prevent partisan appointments. The bill does not really change the way senators are appointed, and the Prime Minister remains entirely responsible for choosing senators. The Prime Minister is not obliged by this bill to select senators from the lists submitted by the provinces or territories, and he can continue to choose whomever he wants and ignore each and every list he receives. He can, therefore, continue to fill the Senate with senators who are loyal to the government rather than to Canadians. This is a major problem.

Canadians elect the members of the House of Commons and place their trust in them to be their voices in Parliament. The Prime Minister, on the other hand, appoints senators, as a reward, and they serve the governing party.

I shall now read a letter written by Senator Bert Brown to the members of the Conservative Senate caucus. It is dated June 15, 2001, which, in my opinion, perfectly illustrates a situation. I am going to read the first and last paragraphs, which I think are the most relevant . The letter reads,“Yesterday, in Senate caucus [the minister] was showered with complaints about Senate elections and a nine year term. ... Every Senator in this caucus needs to decide where their loyalty should be and must be. The answer is simple; our loyalty is to the man who brought us here, the man who has wanted Senate reform since he entered politics, the Rt. Hon. [Prime Minister].

The message to senators is very clear: their loyalty lies not with the regions that they represent, nor with Canadians; their loyalty is to the Prime Minister. Canadians, too, have heard this message loud and clear.

Another consequence of this bill would be the creation of a two-tiered Senate with elected and unelected senators in the same upper house, which may be worse than what we currently have.

Bill C-7, if passed in its present form, will fundamentally change the nature of Canadian politics as we know it today. We will end up with senators elected at the provincial level who believe that they are more legitimate than the unelected senators. We will then have a Senate with different degrees of legitimacy based on the method by which senators are selected.

However, the most negative effect of this bill will be evident once we have an entirely elected Senate. According to the Canadian Constitution, the Senate currently has more or less the same powers as the House of Commons. However, since senators are unelected, they cannot indefinitely block legislation with financial implications because they have no direct mandate from Canadians but are appointed by the Prime Minister.

Once we have an elected upper house, it will be a whole different story. Senators will have greater legitimacy to introduce bills and block House bills. That could result in American-style impasses pitting two houses of elected representatives with essentially the same decision-making powers against one another in legislative conflicts with no apparent solution.

Ultimately, such impasses will force us to redefine the framework of Parliament, including the rights and responsibilities of both the House of Commons and the Senate. Major changes will require nothing less than a constitutional amendment. There is no other option, because that is the existing legislative framework.

The Conservatives claim that their bill will sidestep a constitutional debate on Senate reform, but I do not see how such a debate can be avoided.

Before passing a bill that will inevitably lead to interminable constitutional debates and discussions, we have to let Canadians weigh in on the issue of the Senate's very existence. All the provinces have done quite well without their upper houses since 1968, so it is high time we thought seriously about getting rid of the federal Senate. That is why, for years, the NDP has been calling for a referendum to find out if Canadians want to get rid of the Senate. Before setting in motion any major reforms of the Senate or abolishing it entirely, we need a clear mandate from Canadians, from the people of this country, and the only way to get a clear, legitimate mandate is to hold a referendum.

The changes that the Conservatives have proposed in Bill C-7 are inadequate and will not solve the Senate-related problems. That is why I oppose this bill. If the Senate cannot be abolished outright, the status quo is better than the constitutional chaos into which the Conservatives apparently wish to lead us. Serious consideration is in order before passing Bill C-7. The government will find itself embroiled in constitutional debates that it would rather avoid. That deserves some thought.

[Stéphane Dion, Liberal, Saint-Laurent—Cartierville, QC]

Madam Speaker, I thank my hon. colleague for her speech. I tend to agree with her. However, she concluded by saying that she does not want to open a constitutional debate, but at the same time, she and her party want to abolish the Senate. Abolishing the Senate would require a constitutional amendment, a constitutional reform supported not just by seven provinces representing 50% of the population, but by all the provinces. Trying to abolish the Senate would take us headfirst into a brick wall.

She said she would like to achieve this through a referendum. What would constitute a clear majority in a referendum? Since all the provinces would have to agree, would a majority be needed in each province to abolish the Senate?

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Madam Speaker, I thank my hon. colleague. I am not at all surprised by this question regarding a clear majority, which is one of his favourite topics. If I were him, I would avoid this topic, since it has sometimes gotten him into hot water in Quebec, but let us not dwell on that.

To answer his question, I suggested that we not open a constitutional debate right away, but that we simply put the question to Canadians. So, before we pass this bill or even think about any reforms, we need to see where Canadians stand on this and hear their opinions on that institution. That is the first step I am proposing.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Madam Speaker, I would like to congratulate my colleague from Portneuf—Jacques-Cartier on her very eloquent speech, which helped put things in perspective and gave some idea of the pitfalls that lie ahead concerning the government's bill on Senate reform.

We cannot ignore the fact that this government is a master at proposing superficial reforms and introducing detailed bills without worrying about all the consequences. My colleague very clearly illustrated the fact that this government is opening a Pandora's box that could lead to numerous problems.

What does my colleague think of the proposal to elect senators, even though the Prime Minister would have to approve all selections anyway?

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Madam Speaker, I thank the member for Beauport—Limoilou for the question. This problem will not really change the current undemocratic situation in the Senate. Holding provincial senatorial elections and then giving the Prime Minister the final say will not change the current situation. Quite the contrary. I touched on this in my speech. It remains an arbitrary decision. People will still be rewarded for what they have done for the government or for the Prime Minister, and they will have no loyalty toward their fellow Canadians. Furthermore, when we start electing senators, partisanship will taint the work of senators, and that will prevent them from properly representing their regions.

[The Deputy Speaker, NDP, Denise Savoie]

The member for Winnipeg North for a quick question.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, the position of the NDP is fairly clear. It wants to abolish the Senate. There is no other option. If a majority of Canadians wanted to retain the Senate in some fashion, would the NDP then change its position on the Senate?

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Madam Speaker, that is a hypothetical situation and therefore I do not think I can address it appropriately. The first step is to ask Canadians what they want. Based on the response, we can look at scenarios and establish the steps to be taken. For the time being, I remain in favour of abolishing the Senate.

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, I am pleased to have an opportunity today to speak to Bill C-7 before the House.

Just before I start, I note that the most recent question was whether or not it was wise to consult Canadians. Yet the government has not even consulted the provinces when talking about making massive changes to the Senate and its functions.

The rub in this particular legislation is that it all sounds very simple. In fact, if we look at the summary to the legislation it merely says that part 1 of the enactment is to provide that the Prime Minister, in recommending Senate nominees to the Governor General for a province or territory, as if the Prime Minister did not make the nominations and put them into effect, would be required to consider names from a list of nominees submitted by the provincial or territorial government. The list of nominees would be determined by an election held in accordance with provincial or territorial laws.

Therefore, what we have here is what a famous Canadian once called “meddling with the constitution”. That man is considered one of the fathers of Confederation, none other than Sir John A. Macdonald. He talked about certain proposals coming forward prior to Confederation in the Province of Canada, between Upper and Lower Canada. Suggestions were made for some changes based on representation by population. It was really about changing the balance, in this particular case, between Upper and Lower Canada, or Quebec and Ontario. It was being proposed in some other fashion, not directly, but the idea was to change the nature of the Constitution.

Sir John A. quite rightly identified this as meddling with the constitution. That is what is happening here. What is the effect of this legislation? Is it to improve the situation in Canada? Do we have a circumstance that requires adjustment by saying that we will appoint only senators who are elected in a province? Is that what the people are crying out for? Do we want to have a Senate now that has six members from Alberta, six members from B.C., six members from Manitoba, and ten from New Brunswick and four from P.E.I.? Are we going to improve things by saying they would be chosen from those who have been elected? Therefore, in the Senate we would have B.C. with six senators and P.E.I. with four. That is the representation we are going to have in the Senate, and we would start to give them legitimacy by saying they were chosen from people who were elected in the provinces.

That is going to be a muddle if ever there were one. If John A. Macdonald were here today that is what he would call it. He would say this is “meddling with the constitution”. If the bill passes, we do not know what the real effect is going to be, but it will give some legitimacy to senators, or at least the senators will think they have legitimacy. They will say they were elected by the people of Prince Edward Island or British Columbia, or at least that they “won” an election, because they are not allowed to be elected. A senator will say, “I am one of six senators and should therefore be able to flex my constitutional muscle in the Senate”.

That person will be up against someone from Prince Edward Island who will say: “I was elected. I won an election in Prince Edward Island. I am one of four. I have a vote in the Senate and my vote is just as important as yours. We collectively are going to have legitimacy because we were elected”.

What is that going to do to our constitution? It would muddle it at the very least and delegitimize this place, the House of Commons, the elected representatives of the people making the law. We have a Senate down the hall, “the other place” I think we are supposed to refer to it politely. We are not allowed to utter its name because it is the other place. That is the tradition here.

The tradition also is that the other place is supposed to defer to the House of Commons. That is the convention. If we look at the Constitution, it says they have equal powers, but the constitutional convention is that they are not supposed to be exercising those powers.

What have we had in the last couple of years? We have had a government that has been using the Senate as a tool to defeat the majority in the House of Commons. We saw that in the last Parliament. The climate change action bill was passed by the House, and what did the government do? It used its majority in the Senate to kill the bill. The will of the House of Commons, the elected people of Canada, was defeated by appointed people in the other place.

Who are they? They are appointed at the whim of the Prime Minister. Never mind the language about the Prime Minister “recommending” nominees to the Governor General. We know what that means: anyone who is recommended by the Prime Minister to the Governor General is appointed to the Senate. I do not even think they are called appointments. Instead, they are called to the Senate. I do not mean to mock this, but that is the way the system is set up. Senators are clearly appointed by the Prime Minister based on whatever whim he has. This legislation says he would have to consider nominees who have won an election in a province. Some of them are recognizable people, such as defeated Conservative candidates, for example.

The former member for Avalon in my province was defeated in an election and appointed to the Senate. Then he resigned and ran in the last election. He was defeated again and re-appointed to the Senate. In my province that is not regarded very highly. It is not regarded as democratic that someone can become a senator because he is a defeated Conservative candidate who is rewarded for his loyalty by being put in the Senate, where he can serve for as long as the Constitution allows.

That is the body the government wants to give legitimacy to by saying that the persons chosen could potentially or possibly be from among those who have been elected. This is meddling with the Constitution, because senators and others have talked about how we will have differential senators as a result, some appointed until age 75 because they were appointed 20, 10 or 5 years ago, and then those who are appointed from a list of elected candidates. Not all provinces are happy with this. British Columbia does not seem to be happy about this. Quebec is not happy with it. In fact, it is saying it is going to take it to court to challenge the constitutionality of it.

There was a time when the Reform Party talked about a triple-E Senate: equal, effective and elected. That was the model and I think it has been rejected. What are we trying to salvage? Is it the notion that we can reform a body that ought to be abolished, like every other senate in Canada has been abolished? Every other province had the equivalent to the Senate. Most of them were called legislative councils and some were called other things, but the provinces got rid of them and we now have what are called unicameral legislatures across the country.

Democracy has not suffered; democracy has been enhanced. In fact, these senates or legislative councils were initially aimed in part to be a brake on democracy, to the effect that “We cannot let commoners pass laws unless the aristocracy and the establishment have an opportunity to veto them”. That was part of the original idea. There is talk about regional balance, yes, but it was also about this other notion.

It is a fundamentally undemocratic institution and ought to be abolished. Our first step, as was mentioned, would be to ask Canadians to reflect on this issue in a referendum. It would be a first step, and not a constitutional step, by the way. Do not mistake that. It would say that New Democrats wanted to develop a national consensus on abolishing the Senate. That is our policy. This alleged reform is in fact meddling with the Constitution and ought not take place.

[Stéphane Dion, Liberal, Saint-Laurent—Cartierville, QC]

Madam Speaker, again I agree with my colleague on almost everything he said. However, I am trying to get an answer from him on the following, since his colleague did not answer.

According to the Constitution, abolishing the Senate would require unanimity among all of the provinces. Would that mean that winning a referendum on abolishing the Senate would require a majority in every province of our great country? Yes or no?