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

[David Christopherson, NDP, Hamilton Centre, ON]

Madam Speaker, I thank my colleague for an excellent speech and an excellent analysis. I particularly enjoyed the analysis because it comes from a respected academic perspective which is about the antithesis of everything that I bring to it with a grade nine education, but I do have an experiential viewpoint from 26 years of being elected at all three orders of government. That is why my question is about accountability.

From my limited academic point of view, it looks to me like there is no room for accountability. I asked the minister as my first question, where is the accountability given the importance of that in a democracy and the minister either could not, or would not articulate an answer.

I would ask my colleague, have I missed something? Is there an element of accountability that I am not seeing, or is it clearly missing from this reform bill?

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

Madam Speaker, this gives me an opportunity to say that I understand the appetite for having members of Parliament and senators elected in a democracy. I understand that and it is popular in Canada. The second step is how can we do it in a way that will help the country and every region of the country. The way the minister wants to do this will be awful. It would create stalemates. It will paralyze us. It will not create better policy-making, to the contrary, and it will accentuate this proportion of unfairness for some regions of our country, especially Alberta and British Columbia.

By definition, I am not saying it is wrong to have elected senators. I am saying it is wrong to do it this way for everyone.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Madam Speaker, I enjoyed my colleague's knowledgeable speech on this. I am from one of the most affected provinces, British Columbia, so I would like to pose to my colleague this question. Could he give us a greater idea and more details about the kind of inequities that would be placed on the provinces of British Columbia and Alberta by this Conservative government proposal?

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

Madam Speaker, on every bill in the Senate, British Columbia and Alberta would be very underrepresented and in any democracy that I know of, to be underrepresented is bad news. Today it is a problem, but it is manageable because the Senate at the end of the day almost always gives the last word to the House.

British Columbia and Alberta are much better represented and we will work on some things that will make their representation even better in the House in the coming weeks, but not in the Senate. In the Senate it cannot be changed and the minister did not answer my question. He said that the distribution of senators by province cannot be changed other than by the Constitution. I agree with him. So that means that forever British Columbia and Alberta will be terribly underrepresented in one of the two elected chambers of this country. Is that really what he wants for his province?

[John McKay, Liberal, Scarborough—Guildwood, ON]

Madam Speaker, it is curious that the minister is not taking the opportunity to ask my colleague some questions with respect to what I would regard as a very thoughtful speech and a detailed deconstruction of what is clearly a flawed bill.

We have seen some pretty awful situations in the United States recently with constitutional and political gridlock between two houses which are elected. As others have said, there is a conference mechanism wherein people of goodwill can in effect work out their differences.

It seems to me that one of the core points the hon. member raises in his speech is the institutionalization of gridlock between the two houses. As I think about what he has elucidated, I think he is right. I am curious as to how the hon. member sees that happening over time as each develops its own culture.

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

Madam Speaker, it is a big concern for me. Canada is a complex country to govern, and friends in the Conservative Party are realizing that more and more. It is a huge country, very decentralized. There is little that Ottawa can do alone without at least consulting the provinces. Also the aboriginal people have to have their say.

Why add an even more complex situation when the common institution of the country, the Parliament of Canada will, most of the time, like in the United States, be blocked by partisan differences between the two elected houses, the two elected chambers?

I think it is ill-advised to do so. We should at least have a long debate. I would urge the minister to ensure to have hearings. Many experts will come and explain to the minister how dangerous this bill is for Canada.

[Kellie Leitch, Conservative, Parliamentary Secretary to the Minister of Human Resources and Skills Development and to the Minister of Labour]

Madam Speaker, 70% of Canadians have said that they want some form of reform. I would just like to ask, does the member opposite really want a constitutional quagmire? That is what he is proposing.

Canadians want action. They elected a strong, stable, Conservative government to create reform. We are moving forward with that. Why does the member opposite want to put us in a constitutional quagmire?

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

Madam Speaker, in fact, it is the bill that will create the quagmire. The hon. member must understand that.

Alberta and British Columbia will see that on every bill they will be so unfairly represented that they will request a constitutional change to be sure that they will have their fair share. It will be completely understandable.

As the member well knows, there will not be one politician in Quebec or Ontario who will be willing to change that. So we will have the quagmire that the member is speaking about, and it is what I do not want. I am sure she does not want it either. So the member should say no to this bill.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Madam Speaker, I had come with the intention of giving a fairly dry speech full of historical references. I am a comparative historian, so I was going to make all kinds of comparisons to other countries, but I have heard so many things today that just do not seem to bear with what I would consider to be the facts. So I thought I would, instead, turn my attention to responding to some of the, I am sure, sincerely meant but completely incorrect statements made by some of my colleagues today.

I want to start with the completely erroneous and baseless statement that this amendment would represent some kind of unconstitutional change to our Constitution. Let me start with that.

First, I should draw the attention of members to the fact that the bill contains two parts. Part of the bill is an ordinary piece of legislation that deals with the subject of how senators would be elected using the advisory election process. That process then causes individuals' names to be submitted to the Prime Minister. I will read that part of the bill, if I could. It is very brief. Part 1, clause 3 of the bill states:

If a province or territory has enacted legislation that is substantially in accordance with the framework set out in the schedule, the Prime Minister, in recommending Senate nominees to the Governor General, must consider names from the most current list of Senate nominees selected for that province or territory.

There is then a schedule that outlines what the rules would be for such an election to qualify the individual to be treated in that manner by the Prime Minister.

Part 2 of the bill is actually an amendment to the Constitution of Canada. My colleague from Saint-Laurent—Cartierville made a reference to unconstitutionality and he can correct me if I have misunderstood what he was asserting, but I believe he was referring to Part 2 of the legislation. On that basis, I will now turn to dealing with any objections to constitutionality that he may believe exist.

I should first correct something he said. He said that the changes to the Senate are governed by subsection 42(1), the amending formula, of the Constitution Act and that is only partly true. I have subsection 42(1) with me and it reads as follows:

An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1)--

Subsection 38(1) is the 7-50 formula.

Paragraph (b) of subsection 42(1) states, “the powers of the Senate and the method of selecting Senators”. That is the paragraph he referred to. Paragraph (c) says, “the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators”. These two things require the 7-50 formula. Seven provinces with half the population must approve it or it cannot go forward. This is the kind of discussion that tends to lead to constitutional quagmires.

By contrast, section 44 of the Constitution Act, 1982 is the amending formula. Our Constitution has five amending formulae for different parts of our Constitution. Section 44 says, “Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons”. The question is: Does this proposed change fall under section 44 or is it not in fact under that section and, therefore, does it fall back under the 7-50 amending formula? The answer to that is it does, indeed, fall under section 44. This is established law.

Section 44 is the governing formula because of the fact that it is the replacement for another section that allowed the Parliament of Canada to make amendments exclusively in certain areas. There is widespread acceptance that section 44 is the replacement for the subsection 91(1) amending formula that was put in place for Canada in 1949.

That formula read that, “It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make laws” dealing with the following classes of subjects:

The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, or to any class of persons with respect to schools or as regards the use of the English or the French language or as regards the requirements that there shall be a session of the Parliament...at [least] once [every] year, and that no House of Commons shall continue for more than five years from the [date] of the return of the Writs for choosing the House....

The subsection 91.1 formula was used in 1965 by the Pearson government and the Parliament at the time to change the Constitution, causing senators to no longer be elected for life, but rather to be elected until age 75.

There are the precedents for doing it this way.

I want to take a few moments to mention some other considerations here.

The practice of having a section 44 amendment, that is an amendment to the Constitution authorized under section 44 of the Constitution contained in a piece of legislation, a bill dealing with ordinary legislative matters in one part and then with an amendment to the Constitution in the other part of the same bill, is an established practice. It has done been a number of times. I would point, in particular, to the act passed in 1999 that created the territory of Nunavut. That act contained some ordinary legislation and also an amendment, an amendment that dealt with the Senate of Canada because it awarded a senator to the territory of Nunavut.

Therefore, the established practice of doing things in this manner, as authorized by this section of the Constitution, has existed for no small amount of time, it is well-precedented and there is considerable scholarship to back up the assertion that the subsection 91.1 amending formula is the parent of the section 44 amending formula.

I turn now to some other issues that were raised in the earlier debate.

I mentioned my frustration with the argument that we cannot engage in piecemeal reform, that we must engage only in a complete reform. I think this leads to a constitutional quagmire. The perfect becomes the enemy of the good and we achieve no change whatsoever. That is a very strong reason for opposing the arguments made by the hon. for Saint-Laurent—Cartierville.

I want to mention in particular that we do deal in this bill with some very significant points. We do not deal with the issue of regional fairness. That is quite true. We do deal with the election versus appointment issue. Members would be, in a formal sense, appointed by the Governor General, and the Governor General's powers are very carefully protected under the text of this bill. However, nonetheless, a de facto election takes place. On the term length of senators, they cannot be appointed at age 40 and serve for 35 years. That is also dealt with.

As for regional fairness, and this is always a vexed question, it is in the nature of upper houses to tend to not reflect representation by population or the principle of one person, one vote; one vote, one weight and therefore that presumably justifies some inequality. I think the inequality in our current upper house is excessive. On the other hand, to argue that therefore we must ensure that the upper house is powerless is to say that we must eviscerate one of the basic concepts of federalism because of the assumed belief that, as the member said, no politicians in Ontario or Quebec would support a change to correct that unfairness of representation. That would be a very wrong thing.

Remember, every long-standing federation in the world, every successful federation in the world, has an independent upper house, which is based, at least to some degree, on considerations other than representation by population. There are two senators per state in the United States. In Australia it was originally six per state, then eventually 12 per state. It of course have only six states. In the upper house in Switzerland, there are two per canton. There are some what they call half-cantons, such as Appenzell Innerrhoden and Appenzell Ausserrhoden, which get one senator each, but everybody else gets two. Germany has a somewhat different system but, again, it is not based on representation by population. There is some overrepresentation for the smaller länders.

The idea of having some kind of equality is there. We could work towards a more principled kind of equality. I really think there is sufficient good will. However, we should not halt any progress because we are searching for perfection on that point.

Let me deal with something else on the same subject. The idea that the upper house ought to be kept effectively illegitimate so it cannot second guess the lower house, leads logically toward the NDP position to abolish the upper house rather than to the position taken by the member for Saint-Laurent—Cartierville.

We have to be realistic about this. The upper house cannot be abolished without a 7/50 amendment, without 7 provinces with half the population agreeing to that amendment. The chances of getting that kind of success—

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

Unanimity of provinces. It is unanimity.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I just heard the member say “unanimity”, and he may well be right. I may be incorrect on that statement. The point is that it is very difficult to achieve that kind of change. Getting that change is also not really an option.

The fact is that the only option aside from leaving an appointed upper house, which simply reflects the partisan interests of either the government of the day or the government of recent memory, is a pretty undesirable alternative to any kind of reform whatsoever. I do not think that is the approach we ought to take.

The hon. member for Saint-Laurent—Cartierville said that the Senate has only blocked seven bills since 1945 and warned against the danger of it blocking bills. I would just ask this question. Surely no one will argue that the House of Commons and Senate together have not passed more than seven bad acts of Parliament since 1945? Surely there have been things that should have been stopped in the Senate.

Surely the point of having checks and balances, which is a principle in our government, a principle in the government of all those other federations, and indeed in any civilized government, is something we ought to be protecting and honouring. This means that certain decisions that I personally would like to see would be blocked by an elected Senate, and also some that I would like to see stopped.

In general, the search for a greater consensus, something that does not simply reflect the will of a mandate achieved at one instant in time on election day in a certain election, is a worthwhile endeavour.

On that basis alone, it is absolutely vital we have a Senate that can be effective, as our Senate currently and most emphatically is not.

I mentioned a bit about the Frankenstein's monster argument that was presented by the member for Hamilton Centre. After he made his comments in response to my question, he noted that the multi-member proportional system, which has multiple mandates, is one that is precedented, it exists elsewhere, unlike the idea that an upper house has multiple types of mandates.

In fact, that is actually not correct. The Swiss upper house has multiple types of mandates. The members sent from different cantons are elected by different methods. They are elected by Landsgemeinde, an assembly of all the citizens in some of the so-called mountain cantons in the eastern part of the country. They are elected by different systems elsewhere. That is the decision of the individual canton.

There is a system that exists, and has been in existence for many years, quite successfully with more than one kind of mandate. In fact, if one looks around, they can discover that there are many legislatures in many parts of the world where multiple mandates are used. I think one should be careful about these things. One does not want to overdo it.

I point out that in this case what is being proposed is simply a method for transitioning out of the status quo where some people were appointed after 2008, promising to serve a mixed mandate, others where appointed before that time, having made no such promise, and those coming in after the passage of this amendment to the Constitution would be under a third system.

In the long run, there would one type of mandate for everybody. We are simply going through a transition process, and not one that I think would be damaging.

I also want to deal with the suggestion made by the member for Hamilton Centre that this is in some respect undemocratic. The whole point of this is to be democratic. His argument was that a prime minister might not recommend the individual who won an election. Let us remember the relevant part of the act, which I read to everybody, and I will read it again:

If a province or territory has enacted legislation that is substantially in accordance with the framework set out in the schedule, the Prime Minister, in recommending Senate nominees to the Governor General, must consider names from the most current list of Senate nominees selected for that province or territory.

It is binding on the Prime Minister. In true theory it is not binding upon the Governor General.

I think the point the member was making, and he will be able to reiterate that point if I do not get it correct, was that a prime minister might simply ignore this advice. The fact is that there is no penalty in the bill for doing so. Therefore, I see his point.

I would point out that in the discussions that took place for the parallel piece of legislation on Senate reform proposed in the 39th Parliament, the opposite objection was made by a number of witnesses. They said that the problem was that we would be establishing a convention which would become too firmly rooted and that the Prime Minister would, regardless of what objections he might have, be forced to follow the advice by the enormous political pressure. The argument then went on that this convention would cause this to be a de facto power of appointment being given to the people and that would mean the Governor General would lose his independent ability to appoint the senators and therefore it would be unconstitutional.

I will not go into the absurdity of that argument, although it was absurd, but I will point out that the feeling was very much the opposite. Therefore, the member's fears might be allayed by reviewing some of the testimony from that committee.

I would also point out the fact that there is an historical example we can draw upon. Prime Minister Brian Mulroney stated that until the Meech Lake accord was enacted into law, and at which point the Senate would be elected using a new set of mandates, he would accept senators appointed by provincial governments.

Therefore, in 1989 the legislative assembly of Alberta held an election for the Senate and General Stan Waters won it. His name was then presented to the prime minister who was very resistant. He tried to wiggle out of making that appointment, but in the end the heat was too great and he appointed Senator Waters to the upper House, where he served very well. Unfortunately it was not very long because he passed away as a result of cancer a couple of years later.

There is a precedent which indicates that prime ministers will have a very tough time ignoring who and what people choose.

Our whole system is based upon constitutional conventions. Our entire Canadian political system and its British ancestor are based upon the idea of conventions. On paper, the Governor General has an independent power with regard to the appointment of senators. On paper, the Monarch has tremendous arbitrary powers. In practice, a person not even mentioned in the Constitution, the prime minister, has most of those powers and exercises them via the House of Commons. In practice, we have responsible government, something which is absolutely responsible to the House of Commons and is absolutely not written down anywhere in the Constitution.

These rules are absolutely binding. They are not legal rules; they are constitutional rules. Those who would dream of trying to ignore them would do so at the cost of their political career.

I suggest that much the same dynamic would be at work with regard to the Prime Minister following the letter of this law and making a recommendation to the Governor General as to the appointment of senators who come from that provincial list.

There is no question that prime ministers in the end would lose the power they have to appoint partisans or people of their choice and would be forced to follow the will of the people of the relevant province. That would be a very good thing.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Madam Speaker, I found the speech given by the hon. member across the floor rather incoherent, especially when it comes to giving powers to the provinces. The bill supposes that the provinces could, at their expense, hold elections to elect senators, but it very clearly states that the Prime Minister would not be obliged to accept those elections or that choice of senators. Where is the democracy in this bill?

Also, the member across the way added that it would be unconstitutional to give these powers to the provinces. What do the Conservatives ultimately want from this bill? Do they want to give powers to the provinces or not? Where is the democracy in that?

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Mr. Speaker, we want to give powers to Canadians, in their respective provinces. Regarding the issue of democracy, the prime minister is obliged to accept the decisions of the voters in the provinces. To quote the bill:

If a province or territory has enacted legislation that is substantially in accordance with the framework set out in the schedule, the Prime Minister, in recommending Senate nominees to the Governor General, must consider names from the most current list of Senate nominees selected for that province or territory.

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

Madam Speaker, I thank my colleague for Lanark—Frontenac—Lennox and Addington for his very thoughtful and personal speech. It is a refreshing change from the kind of canned speeches read for the first time by so many of his colleagues in his party. He came with something personal and I hope it will stay this way. I hope that he will not one day come in repeating slogans as if he were unable to come up with his own personal view.

However, he made some comments that were in contradiction to what the minister and some of his colleagues have said. For example, he said that, yes, the bill would be unfair for some provinces. It is a fact and he does not say that it is not true. However, he thinks that there will have enough goodwill elsewhere in the country to address these issues une fois que le mal sera fait, once the wrong is done, and that this goodwill will come from other provinces.

In to order to justify the bill, the member is saying that we should not to worry, that we will have a constitutional negotiation after writ. Therefore, the constitutional nightmare his colleague spoke of before, he is hoping for it. That is what he said. I think that is a very dangerous contradiction within the Conservative Party and he will need to explain that to Canadians.

Do Canadians want a constitutional fix after the wrong the government would have made for the whole country, especially for British Columbia and Alberta?

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Madam Speaker, it would be truer to say that what I said was that it was not that the bill was unfair, but rather that it does not deal with one of the issues that confronts us today, and that is absolutely true.

I would be willing to do this sort of thing, but whether there is a national willingness is not for me to decide. Whether the nation says that it is satisfied with the way things are is not for me to decide.

I would point out the goal of the original Confederation deal on the subject of Senate representation. There was no illusion at the time that we were trying to achieve representation by population in the Upper House, quite the contrary. Nor was there the goal to achieve what the Americans had done, which was equal representation for each of the states. The goal was to achieve equal representation for each of the regions. At that time, we perceived Canada as consisting of three regions: Quebec, Ontario and the Maritime provinces. The west was contemplated but did not come in. When it did, a change was made to the Constitution to allow for equal representation for the western region. That regional principle of representation inequality, more or less, stays in place.

There is a separate issue one could point to. There are 24 senators for each region except for the Atlantic region, which is, population wise, less than half the size of the next region, and yet it has seven extra senators because Newfoundland entered in and was given extra senators.

These are things I genuinely do think can be dealt with by means of goodwill. I do not lose faith in the goodwill of all members, both people in the regions that are under-represented and understand that is not the end of the world, and those who are in the over-represented regions who have a sense that we might want to make corrections. However, I leave that to them. I should not be making decisions on their behalf.