Bill C-20 (39th Parliament, 2nd Session) Committee on June 18th, 2008

[The Chair, Liberal, Albina Guarnieri]

Pursuant to its order of reference of Wednesday, February 13, 2008, the committee will resume its study of Bill C-20, an Act to provide for consultations with electors on their preferences for appointments to the Senate.

I am delighted to see that our members have joined us today for what is probably our last meeting until the fall. I'm sure many of you thought we'd be recessed by now, but we could not go to the summer without hearing from one witness who is more engaged on the topic that this committee has been charged with studying.

Senator Bert Brown was appointed to the Senate after competing in three Senate elections in Alberta. He has also been involved in the debate on electing senators for more than 20 years. He has even ploughed the concept of Senate reform into the Alberta landscape with his tractor, I'm told.

I think we're all looking forward to your insight, sir. Please begin.

[Senator Bert Brown, Alberta, CPC]

Thank you very much, Madam Chair.

It is interesting that you mentioned that it's been over 20 years. It's been almost exactly 20 years since I appeared before a committee of the House of Commons, a joint committee of the House of Commons and the Senate, 20 years ago. Interestingly enough, the subject is the same as it was 20 years ago.

Without further adieu, with your permission, I'll go ahead with my presentation, which will take about 10 minutes. I didn't know our chair would be “Madam Chair” when I wrote this up, so you'll have to forgive me, I hope. But I'm very pleased to be here today.

I have attached copies in English and French of my statement, “The Case for Initiating Senate Reform”, which I've been presenting to the premiers of the provinces and territories as we have met with them over the past few months. I thought it was only fair that this committee hear exactly what I've been giving the premiers of the country as I've toured since the beginning of January.

The points for Senate reform will take about 10 minutes to go through. I am prepared to answer any questions you may have on the points, as well as on my thoughts on Bill C-20 and its constitutionality and/or possible amendments that might make it more attractive to all parties in the House of Commons.

Support for Senate reform in the public polls is now 79% for the election of future senators—and that's Canada-wide.

For the first time in history, Canada has a prime minister publicly committed to the election of senators.

Real Senate reform can benefit every province, large and small, as well as minority interests within provinces.

Reform of the Senate is an important enough issue of long-standing interest to Canadians to warrant the focus of the provincial legislatures on it as a single issue.

The call from the western provinces for a triple-E Senate was never meant as an attack on central Canada or Atlantic Canada, but a desire for a real voice and real vote in Canada's upper house.

The Meech Lake accord failed because it didn't address the desires of provinces outside of central Canada.

The Charlottetown accord was rejected by the majority of Canadians and the majority of the provinces because it tried to address too many issues under one blanket constitutional proposal.

The Federation of the Provinces is a worthwhile sounding board for the concerns of premiers, but because it convenes only a few times a year, it has no ongoing input into federal legislation.

Only an elected Senate in session, in conjunction with the House of Commons, can be capable of providing continuous input into the proposed federal legislation, backed up with a vote and, if necessary, a veto by a majority of provincially elected representatives.

A reformed Senate could have prevented past majority governments from taking Canada to the brink of financial disaster. Our nation needs a counterbalance to federal parties that pursue party interests by buying votes on a national credit card.

Only a reformed Senate can prevent any future return to a single federal party putting its interests ahead of the national interests.

Senate reform does not require a constitutional amendment. Alberta has held three senatorial elections, and the winners of two of these elections have been appointed without constitutional change.

The only requirements for a prime minister to appoint elected senators have always existed. They are: a prime minister committed to respecting provincial Senate election results, and provinces willing to hold senatorial elections.

There are 14 existing Senate vacancies in seven provinces and one territory. Before 2008 ends, there will be 17 vacancies in eight provinces and one territory. As of yesterday, Senator Gill spent his last day in the Senate, so there are already 15.

If a number of provincial legislatures grasp this historic opportunity, they can have elected representatives to protect and forward their interests in the upper house daily.

It is possible to have a majority of elected senators within less than eight years, simply by filling naturally occurring retirement vacancies with provincially elected representatives.

That timeframe provides the provincial governments with eight years to discuss and agree upon the necessary conditions for a stand-alone amendment to the Constitution for, first, the change in numerical representation in the Senate by province. Whether those numbers are half of equal numbers to the large provinces, three-quarters of equality, or full equality, the provinces will have to decide. The second condition would require an agreement on an override for the House of Commons to assuage the fears of those who oppose an elected Senate with veto powers.

The provinces and their leaders have a time-limited opportunity with a willing prime minister and a huge majority of Canadians who want to democratize their Senate for the 21st century.

In conclusion, Mr. Chairman, I have read some of the testimonies of previous individuals and panels who have spoken to Bill C-20. My committee and I find ourselves in agreement with most of the recommendations of Vincent Pouliot of the Centre for the Study of Responsible Government.

Mr. Pouliot recommends that the Chief Electoral Officer be charged to ensure that nominees qualify to be senators as set out by section 23 of the Constitution Act. That would also have to include a clause on page 7 of the Constitution. The phrase “political party”, he recommends, should be changed to read “provincial political party”. Bill C-20 should permit the provinces to determine otherwise how they wish to be represented in the Senate. For example, Quebec will, in the beginning, want to elect their future senators through the votes of their National Assembly. That was their position during the Charlottetown negotiations when I was there, and I assume it still is the same.

We agree with the above.

Very recently we were asked for an override provision that would permit the House of Commons to retain supremacy over an elected Senate with a majority opposed to a bill of the Commons. In consultation with Dr. David Elton, professor emeritus, political scientist, and others, we developed what l have named the “Elton override”. It is simplicity itself as well as brief in form.

When the Commons approves a bill and sends it to the Senate, which finds a majority of senators voting opposed, the bill would be sent back to the Commons immediately. Thereafter, the Commons would want a bill to become law and be unaltered. The Commons would send it back to the Senate by the same vote, not more or less, but by a simple majority.

The Senate must then vote a majority of its members, including seven provinces out of 10, representing 50% of the population. The timeline for this second Senate vote would be very short, possibly one month or 12 sitting Senate days.

Such an extraordinary majority as the Elton override requires from the Senate justifies the powers now existing in the Senate to remain in a reformed, elected, and more equally represented Senate of the future. The new Senate would truly be the House of the Provinces.

Thank you, Madam Chairman.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Senator.

We'll begin with our first round of questions.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Madam Chair, and thank you, Senator.

Your comments are here. I've read them and listened to them. I know you've been around to a number of the provinces and you have spoken to a number of officials. We've read about that as well.

In your remarks and in your brief, you say that for the first time Canada has a prime minister publicly committed to the election of senators. I want to be clear. Have you talked to the Prime Minister, and has he said to you and in public that he is committed to the election of senators?

I say that because this bill is couched in terms of the selection of senators. Even Peter Hogg suggests that is the reason it is constitutional, because it is a selection that is subject to the Prime Minister's prerogative to accept or not.

The implication of your remark, sir, is that the Prime Minister has committed to the election of senators, and that the selection, which is the word used in Bill C-20, is in fact an election that the Prime Minister must respect. Is that your view of things?

[Senator Bert Brown]

It's almost my view of things.

Let me clarify, first of all, that I have known the Prime Minister for over 20 years, I guess. He and I were guest speakers in Winnipeg when the Reform Party was founded. I should tell you that the triple-E committee has never been politically affiliated as a committee. We have introduced this idea to every political party in every province in the country over the last 20-some years.

To go back to your original question about whether the Prime Minister is committed to the idea of election of senators, I would have to answer with an unqualified yes, because he has told me that himself, but it is a time-limited offer to the premiers. If they hold Senate elections, he will recognize the outcome of those elections. I've had numerous conversations with the Prime Minister on this issue, and I wouldn't pretend that the Prime Minister and I are in lockstep on everything. When you ask questions on this bill, you'll discover that we do not agree on absolutely everything, but we do agree on electing future senators and allowing the provinces the timeframe necessary to decide what they would like to do about a constitutional amendment.

The proof that the Prime Minister is committed to Senate elections is my own appointment.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

The second question I have relates to your Elton override, something new for me in reading it. It appears there are a number of words missing, but the gist of it is that if a Commons bill is approved and sent to the Senate and a majority of the senators oppose it, it shall be sent back to the Commons immediately, and if the Commons wants to pass it again, the Commons sends it back to the Senate by the same vote, not more or less, but a simple majority.

My first question on that would be, what does that mean? Second, if the Senate again approves it, does it then become law?

[Senator Bert Brown]

I realize it's very precise right now, the way it is, and you're right about some of the words that were typed up. What the override would do would be to allow the Senate to retain the powers it now has. I'm sure you probably know the Senate has an absolute veto over anything coming out of the House of Commons, including a budget. It doesn't exercise that power. It sometimes threatens to do so, but it never exercises it for the simple reason that the media and the public have told them they're not legitimate because they're not elected.

To go back to your exact question, the way it would work is that if the Commons passes a bill and sends it to the Senate, the Senate would be able to alter, amend, or veto it if it couldn't meet the ultimate test of the override.

The first test of the override is for the Senate to find that it has a majority of senators from the provinces. And if it has a majority who are opposed or wish to alter the bill, then they would vote that way and it would be immediately sent back to the House of Commons. The purpose behind that is to give the House of Commons a pause, to say that while this bill may be popular with your party and your leader, it is not popular with a majority of the elected senators.

The second part of that would be that in order for the Senate to actually exercise its rights, amendment or veto, it would have to show that it had a majority of the elected representatives in the Senate constituting seven provinces out of 10, representing 50% of the population or more. That means that central Canada would not alone be able to override, but also the Senate would need to have at least one of the central provinces plus five other provinces.

So it's an extraordinary override, an extraordinarily high bar, if you will, to overcome. But at that point, the author of the override feels that it would be the simplest thing to do, and it would also be a very clear message to the House of Commons that the bill is in serious trouble, because seven provinces out of 10 and 50% of the population would want to alter it or veto it. If they could do that, the bill doesn't have to be a confidence bill of any kind.

It could simply be that the government would say it's obvious that there's as much opposition, say, to this as there was to the GST--if you remember it when it was first introduced--and they would be able to make the government either accept an amendment or simply let the bill go and redraft it, draft it to something they thought was more acceptable to the public.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I will get back to the idea of the competing houses in my next set of questions, but briefly on that, have you ventured to get an opinion as to whether this override would require a constitutional amendment? That's probably a simple “yes” or “no”, because that's all the time I have left anyway.

[Senator Bert Brown]

Yes, we believe anything other than electing senators by their provinces and having them accepted by the Prime Minister would require a constitutional amendment at some point.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

The Elton amendment override, would it require a constitutional amendment?

[Senator Bert Brown]

I believe so. It would be part of the package of deciding what the representation would be and what power should be left with the Senate. We went through that discussion in the Charlottetown accord negotiations a long time ago.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Senator.

Monsieur Paquette, vous avez la parole.

[Pierre Paquette, Bloc, Joliette, QC]

Senator, thank you very much for giving us your thoughts on Bill C-20.

This somewhat follows on from the question you were asked previously. I notice that some aspects of your document deal with Bill C-20 but that others go much further. For example, you are proposing that provinces are represented equally. That goes much further than anything in Bill C-20 and probably requires a fairly substantial constitutional amendment.

Then you say: "Senate reform does not require a constitutional amendment!" I imagine that you are referring to Bill C-20. Then you write: "Alberta has held three senatorial elections and the winners of two of those elections have been appointed without constitutional change." That is true, of course, but it means that you are arguing for the status quo. There is no need for Bill C-20 if you are able to show that Alberta has elected three candidates and that the Prime Minister has chosen two of them to be senators.

Could you clarify that? When you say that Senate reform does not require a constitutional amendment, I imagine that you are referring to Bill C-20.

If Alberta was able to provide the Prime Minister with three elected candidates, two of whom are now in the Senate, that means that we do not need Bill C-20 to extend the same practice to any provinces that want it.

[Senator Bert Brown]

Yes, you're correct in your assumption about Bill C-20. While I support it, and while the committee I chair supports the idea of Bill C-20 for electing senators, we're not in lockstep with the Prime Minister on the bill in terms of our suggestion of the possibility of two six-year terms for being re-elected.

We felt that the one single term was not popular with the existing Senate and that it would take away the power of the ballot box. If you have an election for one term and then you don't re-elect them, you lose any ability for the people of the province that elected them to come and say, “Hey, if you want to be re-elected, you need to listen carefully to what we want you to do and how we want you to represent us in the Senate.”

The other part of your question was about a constitutional requirement. We are looking at Senate reform now, having been through both Meech Lake and Charlottetown. We're looking at Senate reform as a staircase, and you don't go from the bottom to the top of the staircase in one step. You take steps.

What we're proposing is the first step; that is, to accept the fact that the Prime Minister is very much committed to democratically chosen senators. He is not constitutionally bound to the outcome, however. It would only be his political word that would bind him, and we're hoping to take advantage of that and let as many provinces elect senators as they want. Politically, he would be committed to accept the outcome of those elections.

We're not suggesting that he is constitutionally bound by an election. We're suggesting that this is an elective process, and politically, the tie would be pretty strong.

[Pierre Paquette, Bloc, Joliette, QC]

Further on, you say: "that provinces are willing to hold senatorial elections". In your document, you also say that, in Quebec, there was Benoît Pelletier, two weeks ago, advocating that the provincial governments choose senators themselves, or, as you suggest in your text, the Assemblée nationale.

When you propose that provinces be willing to elect senators, are you talking about a public election, or in provincial legislatures, or could it vary from province to province?

[Senator Bert Brown]

Well, our first choice there would be....

Excuse me, Madam Chair, am I supposed to address my answers through you or am I just supposed to speak to...?

[The Chair, Liberal, Albina Guarnieri]

You are, but I think you're doing just fine.

[Senator Bert Brown]

Okay. I'm sorry.

[Pierre Paquette, Bloc, Joliette, QC]

Everything goes through her, but, in fact,...

[Senator Bert Brown]

I should have asked about the protocol before I spoke, and I apologize to you.

[The Chair, Liberal, Albina Guarnieri]

You're doing just fine. I don't want you to lose your train of thought. It's an interesting discussion.

[Senator Bert Brown]

Thank you.

I have served on some committees in the Senate for a number of months now, and we don't go through the chair, so I apologize.

To answer your question, sir, you were mentioning Quebec. We went through the negotiations in Charlottetown in 1992, and during those negotiations we reached an agreement on a triple-E Senate. All provinces agreed on equal representation in the Senate. All provinces agreed on having elections, except the Province of Quebec wanted to elect them from the members of their National Assembly. That's why we included this in the brief.We anticipated that's what Minister Pelletier would want, so we put it in there.

I have to say I have not met with Quebec yet, but there is going to be a convention at the end of July, and I hope we'll get to meet with Minister Pelletier at that time.

[Pierre Paquette, Bloc, Joliette, QC]

I have one more question. You mention Vincent Pouliot, from the Center for the Study of Responsible Government, and the fact that he recommends that the term "political party" be replaced by the term "provincial political party".

Could you explain what the advantage of that would be? Personally, I believe that, at federal level, it is very likely that the Conservative Party would like to have its counterpart, though not perhaps as structured a party as in the House of Commons. It would certainly want senators with a conservative outlook and the Liberals would certainly want senators with a liberal outlook. So a party may perhaps have more provincial sections, but it would actually reflect the reality of party composition at federal level. So could you explain what would be gained by using the term "provincial political party"?

[Senator Bert Brown]

I thank you very much for the question.

We think the words “provincial political party” are extremely important, because that's the way the Alberta legislation was designed. Interestingly enough, the people who were designing it at the time wanted to prevent the Reform Party from running candidates, so they said it had to be a provincial political party, not realizing you could form a provincial political party with 1,500 signatures.

But the one thing that we believe would make the disconnect between the federal parties and the Senate is who would sign the nomination. I would not want anyone to believe that the Prime Minister is in lockstep with us on this opinion. In fact, he would probably prefer them to be elected federally.

I should make the statement here that in the mandate he has given me to speak to the provinces, I speak to the premiers and/or their representatives, but I do not speak for them. I also do not speak for the Prime Minister; I speak to him. There is a major distinction there, and I don't want anyone to think otherwise. In other words, I carry the message of Senate reform as I've done for 20 years.

I think the majority of Canadians are in favour of some kind of democratically reformed Senate. We are now down to 14 people: a willing Prime Minister who would appoint elected senators, and 13 premiers who will have a chance to decide whether they want to hold democratic elections or not.

The Prime Minister will make the final decision as to whether he will respect provincial political parties as representatives being elected to the Senate, which he already has in my case, and did in Stan Waters' case, who was the first elected senator. He will make that decision, and I don't want anyone to think I'm speaking for him.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Comartin.