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

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'll pass, Madam Chair, thank you.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Reid.

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

Thank you, Madam Chair.

Thank you, Senator Brown, for coming and being a witness here. I think it's an understatement to say you're a patient man. It's been a very long time that you've been involved in this.

I joined the Reform Party back in 1991, and you'd already been involved in writing on this subject for a number of years at that time.

I wanted to get your view on a couple of things that have come up in our discussions.

We've had, of course, a number of witnesses here already, and there's been some talk among some of the witnesses about the danger of having elected senators, whether they're elected directly or whether, as the bill proposes, they're pre-selected in terms of advice or recommendation to the Prime Minister, who can then advise the Governor General--whatever the case. The thought is that the electoral process will cause senators to become more partisan, whereas they are currently less partisan than their opposite numbers in the House of Commons, that is to say the MPs.

I'm just wondering if you find the Senate to be less partisan than the House of Commons.

[Senator Bert Brown]

Madam Chair, to answer that question I have to say quite honestly that the only surprise I've had in being in the Senate since October is that they are, if anything, more partisan than the House of Commons. That surprised me. In fact, from conversations with some of the existing senators—and I will not name any, because I do not believe in criticizing individual senators—right now I'd have to say that they consider themselves to be the opposition to the government, which puzzles me because I think in the House of Commons there are three parties that are in opposition to the government right now. So I don't know why they would be.

When I investigated this with some of the parliamentary librarians, I found that they were not the opposition to the government some years ago; they were more of a sober second thought. But right now, I believe honestly that the Senate is controlled by the two leaders of the government in that other place--as we're allowed to refer to it. I believe they control the Senate.

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

Thank you for that.

I have to admit that confirms an impression I've had as well, that the Senate is a pretty partisan place already.

I wanted to ask you as well about a piece of proposed legislation that has come up through the Senate. It's now been passed by the Senate, and I believe Mr. Murphy is intending to sponsor it in the House of Commons when it makes its entry there--Bill S-224. That's the bill that would require, after a Senate seat falls vacant, the Prime Minister to propose a qualified replacement essentially within six months.

Maybe I'll just tell you what my assessment of this bill is. I think if this bill goes forward and is passed, it will have the effect of killing any opportunity either to reform the Senate, to elect it, or even, as a practical matter, to try to work on getting rid of it, as the New Democrats propose, simply because it's going to push the government into filling all those vacancies. And they're going to be given a choice. They can fill them with Conservatives, in which case the Prime Minister will be forced to engage in the same partisan process and will be attacked as a hypocrite and so on, and will be forced to defend that position, or they'll have to appoint it with some mixture of Conservatives and Liberals, given the fact that the New Democrats and Bloc are presumably going to be unwilling to provide candidates. So it seems to me this is intended to effectively derail any move to democratize the Senate.

I wonder if you share my assessment or if you have a different assessment of the bill.

[Senator Bert Brown]

Yes, through the chair again, Mr. Reid, I actually wrote a brief amendment to Bill S-224, suggesting that instead of forcing the vacancies to be filled on a specific timetable, they be filled after a consultative process with the provinces, making it as simple as I could while still reaching out to democracy.

I guess the one thing I'd say about Bill S-224 is that if it reaches approval in both Houses, I'm not sure it can be enforced. I went to the parliamentary library, which I found to be my biggest source of information since I've come here, and found that there have been vacancies as long as eight years. Manitoba actually holds the record. There have been a number of them at seven years and there have been many at six. There have been, I think, some down at 405 days, less than two years, but precedence is what runs our Constitution in many ways. The reason I say that is that there's no constitutional reference for the Prime Minister to appoint senators. It's the Governor General, if I may try to quote word for word:

The Governor General shall from time to time...summon qualified persons to serve in the Senate....

--to represent the provinces in the following numbers, and it goes on to list all those.

But I don't hold much more hope out for S-224 than I do for Bill C-20 in its current form. I think if we could talk about the fact that senators would like to accommodate something in terms of a 12-year maximum term and we could accommodate democracy by having an amendment that would allow for two six-year terms, we would have something spectacular for this country.

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

Thank you.

Do I still have some time, Madam Chair?

[The Chair, Liberal, Albina Guarnieri]

You have time for one very short question.

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

Thank you. I will be very, very brief then.

On the Elton amendment that you talked about, I hadn't seen this before, but I've seen similar ideas at joint sittings, that kind of thing. I have a technical question.

It talks about a majority of members, of senators from each province. Most of the provinces have an even number of representatives in their contingent to the Senate—6 from Alberta right now, for example, 10 from Nova Scotia, 4 from P.E.I., 24 from Ontario. So do you mean 50% of the senators, or do you mean 50% plus one of the senators from each province? In other words, under current representation, if you have 10 from a province, do you have to have 6 voting in favour? That makes a significant difference to how tough a hurdle this is to overcome.

[Senator Bert Brown]

Again, through the chair, the reason you haven't heard about the Elton override is that it's only about a month old. The Prime Minister actually told me some time ago that he wanted to be sure that the House of Commons' supremacy would rule in the end, and in a struggle to find out how we might accomplish that, I had Senator Hugh Segal look up the British acts of parliament, 1911 to 1945. I've read some pretty boring stuff, but 48 pages of what the British tried to do with the House of Lords is enough to make you go brain-dead. So I went back to Dr. David Elton because he has been my chief mentor. We've had constitutional advisors across Canada, but Dr. Elton has been the first and the steadiest. So I went to him with the problem and after a couple or three weeks he came up with what's called the Elton override.

To answer your question specifically, the first vote would be a simple majority of the Senate. In other words, Ontario and Quebec could alone decide that the representatives from those two provinces could send it back to the House of Commons. And if the House wanted to pursue the bill and revote it, then the override becomes part of the Senate, not the House of Commons. In order to exercise the override, they have to show they have a majority of elected representatives from seven provinces out of 10, representing 50% of the population.

That's an override that is about as strong as you can get, but if you have a House of Commons that ignores an override like that, then the bill should probably fail.

[The Chair, Liberal, Albina Guarnieri]

Thank you, sir.

Madam Fry.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Thank you very much.

I want to thank the senator for presenting to us today. You made some important points.

I want to ask about a couple of things you said in your presentation, just to clarify them a little. On your second page you talked about “a reformed Senate could have prevented past majority governments from taking Canada to the brink of financial disaster”. But in your Elton override, you suggested that if the Commons doesn't like the way the Senate voted, it could send back its bill.

As you well know, any bills that dealt with financial disaster would have been confidence bills in the House of Commons and in the government of the day, so the government would obviously have sent it back if the Senate voted against it. You would then have an impasse, and the Senate, according to the Elton override, in effect would not have any ability to stop that, whatever you thought would have been detrimental financial bills.

Those two things don't seem to support each other; they seem to be contradictory. Perhaps you can explain that to me.

Second, you use the words “That new Senate would truly be the House of the Provinces” in the Elton override. Is that really what we're trying to do? Are we trying to create another series of provincial governments that will then have the ability to control the federal government and the House of Commons in the way it behaves?

We have seen quite often that provinces are very distinct and very different in the way they see things. Would that not infringe on the mandate and the jurisdiction of the federal government in so many ways if these senators are the “House of the Provinces”, as you put it? That's the second question.

On the final question, you said this is all possible where you have “a Prime Minister committed to respecting provincial Senate election results”. But what about a Prime Minister committed to respecting, first and foremost, the Constitution? I think there is such a sleight of hand in this bill that in many ways it fundamentally disrespects the Constitution.

Those are the three things I wanted to put to you, and I would like to hear your responses to them.

[Senator Bert Brown]

Through the chair, I'd like to answer your questions in reverse order if I may.

The House of the Provinces being the Senate I think is a solution to many of the problems this country has had. The provinces, under the Constitution Act itself, or the law of sovereignty over health care, education, social services, manpower, a number of those...these are very reminiscent of the problems Quebec has had with the federal government of the past. They have, by themselves, almost caused a couple of referendums for separation.

The reason I passed this picture around was so you would understand that our committee is totally committed to keeping this country together. That was plowed into the grain fields of Alberta in 1992, three weeks before the last referendum. That was our response to a request to go to Montreal and take part in holding that gigantic flag. We wanted to do something. This ended up in a lot of the newspapers in Quebec--on the front page. That's why I sent it to you.

That's our purpose, to accommodate all the provinces. They have the power under the Constitution for health care, social services, manpower, a number of those things, and we want them to have input into the government while legislation is being passed, not fighting legislation they don't like after it has been passed.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Brown, the effect of that would be to have the provinces override the federal government's decisions on specific issues that are of federal jurisdiction alone. The federal government never attempts, and has never attempted, to override provincial jurisdiction, but instead negotiates with provinces in certain areas, and that's why the social union was created, as a way to deal with that.

In other words, what this would suggest is that instead of having a federal government and a House of Commons, we should just have the provinces with provincial parliaments, which would therefore rule the country together. That would be the effect; I'm not saying that's what you are suggesting, but that's what the effect would be, really, because the Senate has the ability to override or deny House of Commons bills. So I would see this creating that very negative effect on the federal government and federal jurisdiction.

[The Chair, Liberal, Albina Guarnieri]

Ms. Fry, your time has expired, but I think we should allow Senator Brown to answer your questions.

[Senator Bert Brown]

Thank you, Madam Chair.

On that point, I would have to strongly disagree with you, for the simple reason that I have been witness to a summons by the Prime Minister of the day to deal with health care. All of the premiers were at the meeting. It was on television. The Prime Minister said that each premier would have five minutes to speak on the subject. When it came to the Premier of Alberta, coincidentally they were already handing out a document. Before the premier could finish his speech, the Prime Minister said, “Take it or leave it”, and walked out of the room. The Premier of Alberta went to a casino.

That is just one of the problems.

You asked in your earlier question about why we said this country came to the brink of disaster in terms of economics. That was back in 1981-82, when we were already carrying a huge debt. I can't quote it exactly, but it was in the neighbourhood of $550 billion, and headed for $680 billion. We were accumulating a debt at $9 billion a month. The man who created this override actually came to me and told me that we were within 18 months of the IMF telling us how to run this country. I don't blame that result on any one political party because the accumulation of that debt spanned two political parties that were leaders and prime ministers of this country.

Mr. Elton's questions were: How do we stop this? How do we make people understand that a prime minister with a majority government has unlimited powers? There is no constitutional limitation on the powers of a prime minister other than a revolt by his cabinet. Cabinet people very seldom revolt if they have children in college, or if they like a chauffeured car, or if they have plans to become a minister or a parliamentary secretary, or whatever.

In the House of Commons right now, regardless of the political affiliation of the Prime Minister--I don't want to be seen as picking one party over the other--you have the potential of any prime minister, past or future, taking this country down the road to places no one wants to go, but no one can get it stopped. Once the debt began to accumulate and got to $9 billion a month, it was impossible to turn the economic ship of state around before we added another $300 billion to the debt. As a consequence, the country went through an awful lot of machinations to get to where we are now, which I understand is just now below $500 billion.

When I talked to the provincial government in Alberta about it, I asked the treasury to run the figures at a $5 billion retirement per year at 5%. That amounted to $2.78 trillion to pay off the national debt at that time.

I don't know of a better way to answer why we need a Senate that can exercise the interests of the provinces, and not only have a voice and have amending ability, but also ultimately have a veto. It doesn't have to be a confidence motion. One thing the Senate doesn't have now is the ability to introduce bills to spend a lot of money. They do have the power to veto them; they just don't exercise it.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Senator Brown.

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Senator, for being here.

I'd like to very quickly get a clarification on a question asked earlier by my colleague Mr. Reid, and that's on the Elton override.

He asked this question. With a 7/50 plan, since there are an even number of senators in each province, does this override then mean that if, say, a province has ten senators, they need six senators to vote in favour? Or does it mean the total amount of Senate votes cast has to be including 50% of the major provinces plus one? That does change the numbers quite significantly.

[Senator Bert Brown]

We have not gone into that depth of detail on the override, but I can tell you it implies that there must be a majority of senators from each of the seven provinces out of ten, and they have to represent.... So it doesn't matter how many senators you have. If you have six, you need four to have a majority.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

That was the question, because you could conceiveably have a majority of Senate votes, including provinces, representing at least 50% of the population. You could have five Senate votes from a province that had ten Senate seats, but eight out of ten in another province. At the end of the day you would have more than your required votes. So seven of the provinces that vote need to have simple majorities.

[Senator Bert Brown]

Yes. Of all the papers we went through when we asked Senator Segal to look up things, this was the most simple. The Parliament acts of Britain of 1911 and 1945 simply didn't work. They were too complicated and didn't have a time limitation that would prevent the House of Lords from just delaying accepting a bill until Parliament had prorogued, the parliamentary session was over, or whatever.

It has to be finite and definite.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Thank you, Senator Brown.

There's one thing we haven't touched on today. We've heard about some of the comments from different premiers, provinces, and parties, and you're probably in a better position to answer this than most people. What are you hearing from everyday Canadians on the issue of changes to the Senate? We've all probably heard, to one degree or another, in our own ridings as members of Parliament that Canadians should have some input on who rules—that's how they put it sometimes—or governs them, especially when you consider some of the powers that our Senate has.

Believe it or not, I think we've gone through this discussion today without really talking about what you hear from people, Canadians, voters, on this issue about whether or not there's a desire to have some input into who governs them.

[Senator Bert Brown]

Through the chair again, Madam Chair, to answer your question specifically, the committee has never ever held a poll, but very early on in our work, which would have been probably about the third year of our work—we will be celebrating our 25th anniversary on August 13 of this year—Maclean's/Decima actually called us and asked if we would like to do a poll on how many people in Canada support a triple-E Senate. We said we would, and they said it would cost $100,000. We never had a budget that even gets close to $100,000, and nobody that works for the committee, except for a secretary, ever gets paid anything, so they said they would just include it with their regular poll.

And they've done it for many years. I think the first poll was right around 55%. That was Canada-wide. I think it was a Crop poll that gave us 79%. Mike Duffy, one week after the election of the current Prime Minister, did an informal poll on CTV and just asked the question, “Would you like to elect your senators, yes or no?” and it was 83.1%. We were flabbergasted. The last poll that took place in Calgary with Sun Media was 93%.

That's all I can tell you about what Canadians want, in terms of democracy. When you get into the details of how much power they want to have and everything else, I think that's why you need your provincial legislatures to gather for the purpose of a stand-alone amendment. They each need to discuss it the way they did in Charlottetown. I spent five days in the Pearson Building during Charlottetown, and we were discussing this issue with Premier Harcourt and his group, Premier Getty and his group, Premier Devine and his group, Premier Filmon and his group, and Premier Clyde Wells. We were amazed when we got Premier Rae, who was then premier of Ontario, to agree to equality. That was directly from a question of Premier Filmon. When Premier Rae said that Ontario had gotten into trouble giving away Senate seats with Peterson in Meech Lake, so they were not going to do that again, Premier Filmon, as I remember, said, that some pigs were more equal than others, and that's when we got equality.