Evidence of meeting #2 for Bill C-20 (39th Parliament, 2nd Session) in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was senate.
A recording is available from Parliament.
Liberal
The Chair Liberal Albina Guarnieri
You have a few minutes remaining that you can usurp, if you choose.
NDP
Pat Martin NDP Winnipeg Centre, MB
I can certainly use it, thank you.
What would be the steps if you're still in government by the time this crashes and burns? What steps and what process would you take to abolish the Senate?
Conservative
Peter Van Loan Conservative York—Simcoe, ON
That's a hypothetical question. We prefer to go down the path of trying to get incremental reform. If this committee's wisdom is that it's not something that's achievable, and this committee makes recommendations on how to proceed with asking Canadians about abolition, or if there's a suggestion out of this committee to ask Canadians which they prefer—a Senate that's elected, a Senate that doesn't exist, or the status quo—perhaps that's something this committee can suggest be put to Canadians in the form of a consultation.
I've come here, however, with the suggestion that this is a worthy incremental reform that will help to solve many of the problems with the lack of legitimacy of the Senate today. If you have, for example, better ways of electing people, if you want to use a different system from the one that's proposed in the bill, that's something worth talking about. Those things are all up for grabs.
But I think it's incumbent upon the people on this committee to wrestle with the fundamental questions and the philosophy and make real recommendations for how we can modernize a Senate that's well past its appropriate date.
Liberal
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Thank you very much, Chair, and thank you, Minister, for being here.
I have a couple of observations and a question.
Minister, I suppose the first thing we all have to recognize here is that although we have talked about consultation with provinces and consultations with others, the really determining factor of whether any legislation gets through the committee level is how the elected representatives from each party vote on the proposed legislation—whether they gut the bill, whether they amend the bill slightly, or whether they vote up or down.
One of the benefits of this committee and of bringing it to a legislative committee is that hopefully we will be able to determine, in fairly quick fashion, the position of all of the respective parties in the House of Commons. I, for one, learned something already today, because I was always of the assumption that the New Democratic Party was in favour of abolishing the Senate per se. I don't know if nuanced position is a fair commentary or not, but to say, in Mr. Martin's comment, that they're in favour of abolishing the unelected Senate is something that I quite frankly didn't realize. In my home province of Saskatchewan, our former premier, a New Democratic premier, had been on record many times saying that their position was in favour of abolishment of the Senate, period, not the unelected Senate.
My point is that we have to first determine, I believe, to make any progress here, if this committee is going to sit a long time or a short time, what the positions of the parties represented on this committee are. I do not know yet the official position of the Liberal Party. I am hopeful to find that out. I'm not sure about the official position of the Bloc Québécois. I know now the official position of the New Democratic Party. I think your characterization of the position of the Conservative Party is quite accurate. We are looking to make fundamental changes, perhaps modest to start with, but some fundamental changes in the democratization of the Senate. I totally agree with that.
My fear is that if we go down the path—and you mentioned it in your opening statement—of widespread consultation with the provinces in terms of allowing the provinces to hold their own consultations, we may end up in the same position as we're in right now after 140 years. I think the positions of most provinces are fairly clear because they've made comments as to their views on the Senate time and time again. Those views, of course, change from time to time with the change of political parties that govern the party of the province. I mentioned my own province of Saskatchewan, with its former NDP government in favour of abolishment. I do not know the views of the current Saskatchewan Party government on the Senate.
I would hope this committee doesn't just say, look, in total we have adequate consultation with the provinces; we really can't proceed any further. I think it would be incumbent upon this committee to engage in those consultations. After all, when studying legislation, all committees do widespread consultation with stakeholders. I would like to think this committee can engage in its own consultations with the provinces.
Having said all of that, my question to you is, can you inform this committee as to some of the views on Senate reform of the provinces you are aware of ?
Conservative
Peter Van Loan Conservative York—Simcoe, ON
There is a diversity of views among the provinces. You're quite right that those views and positions of the provinces tend to change following changes in election. There are a number of provinces obviously that are quite open to consultation. The Government of Nova Scotia has indicated it. The Government of Alberta actually has a law that provides for it already. A number of provinces have indicated the desire for abolition. Those include British Columbia and Manitoba, for example. The position of the others tends to be mostly in a category that they want to see the Senate change, but it needs consultation and they're not clear on what that change should be.
If you get the essence of what we're talking about here, this is consultation. I'm not familiar with any government that takes the position that a purely appointed body is preferential to a body that has a democratic element to it. I stand to be corrected on that, but that is my reading of the positions of the provinces thus far. Most have provided comments, obviously, but there have been recent changes of government and we are awaiting newer comments.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
I don't know what the definition of consultations is, but would it be fair to say that you have a fairly good idea of each province's position on Senate reform? If that is an accurate statement, would it then be fair to say that the majority, if not all, of the provincial positions would be that there needs to be something other than the status quo, which would then allow this committee to go forward in that spirit, looking for alternatives to the status quo?
Conservative
Peter Van Loan Conservative York—Simcoe, ON
I don't find anyone arguing that the status quo is appropriate. I stand to be corrected, but that's my reading on the positions. All of them think that some change should occur.
What's significant is that we are not looking at changes that would, for example, affect the relative levels of representation of the provinces—the say they have. Some provinces, for example, would prefer to see the provincial government have a direct say in who represents in the Senate. We think it's better to ask the people of that province. That does the trick and is more democratic. To the extent that there's a desire to see the Senate as a representative body of the regions, it ensures that the people of those regions or provinces have an opportunity to say who they want to represent them.
Liberal
Hedy Fry Liberal Vancouver Centre, BC
Thank you very much, Madam Chair.
Someone was asking how the Liberals stand on this issue. I think most of us agree, because the Liberal government brought forward particular bills in the past on Senate reform.
One can't dismiss the concept of process in this, and bringing a process from a group of people who believe there should be reform of the Senate. Many of us who spoke very movingly in favour of the Charlottetown accord in the old days, as I did, certainly look at some of the triple-E reforms we talked about. The question is, how do we do this?
We know that scholars have sat on one side or the other of this debate. In 1980, the Supreme Court said that Parliament could not change the fundamental characteristics of the Senate without first getting the Senate to agree that this should be done. Then we had the 1982 Constitution Act, in which it was said that one could amend the Constitution with regard to the Senate, but there was a way of doing it. The process had to have three conditions, and I would like to add that those conditions were fulfilled in the Charlottetown accord. They said that at least two-thirds of the provinces must agree, the Senate must agree, and a minimum of 50% of the population of those provinces must agree.
When we talk about democratic change, we have to ask ourselves first and foremost whether the end justifies the means. If we don't look at what the Constitution tells us we should do, or if you want to sit on the other side and look at what the Supreme Court says we should do, then we need to have a different process. I don't believe that Parliament has it in its power to do this alone. The whole way of amending the Senate, as set out in the Constitution Act, is a good one.
My question comes back to what everyone says. We cannot—no matter how much we wish to as government—do something that is unconstitutional unless we're prepared to open up the Constitution and go into that big debate. I don't think anyone here is suggesting that; however, we can look at many different ways of electing the Senate and of achieving a new type of Senate reform that don't have to go against the constitutional amending processes.
My big question is whether this is the appropriate way to go about it. Is this legislative Bill C-20 an appropriate way? How do we go about getting two-thirds of provinces and 50% of the people to agree? How do we get the Senate to agree?
We cannot do this on our own, and that is my point. Much as I would like to see the triple-E Senate looked at, this is not the process. My concern is that when we speak of democracy we do not do something that is fundamentally undemocratic.
Conservative
Peter Van Loan Conservative York—Simcoe, ON
Of course this bill does not propose a triple-E Senate or anything of that type. The incremental change we're proposing here falls far short of the kind of change that was reflected in the agreement of the Charlottetown accord. It is a change that respects the basic constitutional cornerstones of the Senate right now and, as a result, doesn't require the provincial consultation that is contemplated by the amending formula right now. It's simply not that scope of change.
I will remind you that there has been change before to the provisions relating to the Constitution. The issue of retirement age has been introduced. That's something that affects the qualifications for membership in the Senate. That's a provision that's covered in the Constitution.
Liberal
Hedy Fry Liberal Vancouver Centre, BC
The Supreme Court actually said that could have been done. So again--
Liberal
Conservative
Liberal
Conservative
Peter Van Loan Conservative York—Simcoe, ON
The bill that we are dealing with, that's in front of you, falls into the exact same category of a change--
Conservative
Peter Van Loan Conservative York—Simcoe, ON
—that can be undertaken by the government, by the Parliament of Canada, without the need to resort to provincial approval to that broader constitutional amendment process. It's a very modest change, a very incremental change, and it doesn't cross into that realm.
This nice gentleman here from the Department of Justice is happy to validate that for you. I know that the Liberal Party is always very interested in the views of the Department of Justice on whether these matters are constitutional. Since that's your question—whether it's constitutional, whether it's an appropriate way to proceed—I'll simply ask him to add his comment.
Could you answer that question, Mr. Newman?
Liberal
The Chair Liberal Albina Guarnieri
I will give you time to rebut, but can we have a little bit of pity for the translators who are trying to cope with the interjections?
Liberal
Hedy Fry Liberal Vancouver Centre, BC
Madam Chair, this is not a debate—I don't intend to rebut—but I heard what the minister said with regard to my answer. I got it. I don't need someone to continue to tell me what he says he believes. I want to ask another question.
Conservative
Peter Van Loan Conservative York—Simcoe, ON
I thought it would help to hear from the Department of Justice on that.
Warren Newman Senior General Counsel, Constitutional and Administrative Law Section, Department of Justice
I'd be happy to add, just very quickly, that this bill does not contemplate a constitutional amendment. This is not an amendment to the Constitution of Canada. It is legislation enacted in relation to the Senate, but it is not a constitutional amendment.
Even if it were framed as a constitutional amendment, under the amending processes not all constitutional amendments must be made in relation to the Senate under the 7/50 procedure, which is the general amending formula.
In fact, section 44—I hate to get technical—is the default procedure. Parliament may make laws amending the Constitution of Canada in relation to the executive government, the Senate, and the House of Commons.
Thirdly, just in terms of how we get where we want to get, we should bear in mind that were we ever to go to a 7/50 amendment, the Senate does not have an absolute veto over 7/50 amendments. So the way is not necessarily blocked entirely. The Senate has a suspensive veto, a 180-day veto.