Bill C-20 (39th Parliament, 2nd Session) Committee on March 5th, 2008

[The Chair, Liberal, Albina Guarnieri]

I see quorum. I'd like to call the meeting to order.

Pursuant to the House order of reference of February 13, 2008, the legislative committee on Bill C-20 will resume its study of the bill.

Before I give the floor to Minister Van Loan and his officials, I would like to take a few brief minutes to deal with housekeeping matters.

Members will have received their briefing book on the bill, prepared by the Privy Council Office, so we can expect even more profound questioning of the minister.

First, as we embark on our discovery, I would like to welcome our second analyst from the Library of Parliament. His name is Jean-Rodrigue Paré.

A special thanks to the analysts who have prepared this 22-page document. It summarizes the positions adopted by many experts and politicians on provisions similar to the ones we find in Bill C-20.

Secondly, I'd like to remind members to file their witness lists with the clerk. The preliminary one can be sent to her today, and the second and more comprehensive one on Friday. The subcommittee will meet on Monday, leaving time for testimony to be prepared.

That said, I'd like to turn the floor over to Minister Van Loan, Leader of the Government in the House of Commons and Minister for Democratic Reform. He is appearing with two officials: Dan McDougall, director of operations, democratic reform; and Warren J. Newman, senior general counsel, constitutional and administrative law section.

Minister, I understand you have a statement of 10 to 15 minutes. You have the floor. Welcome.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Thank you very much, Madam Chair.

I also want to thank in particular the members of this committee, because the work you're doing on this bill is very important. It's significant that it was sent not only to a special legislative committee, indicating the importance the government places on this, but also before second reading, so that you have the fullest latitude possible in considering the important question of how to deal with how we select people to represent Canadians in the Senate, and ensuring that they do actually represent Canadians in the Senate.

The bill, of course, is Bill C-20, the Senate Appointment Consultations Act.

Our government's position has been clear on the question of the upper chamber. We believe the Senate must change. We're committed to leading that change. The bill you're studying represents one aspect of our plan to effect that change.

The Senate must change because it is a body that is not elected by Canadians, and therefore, not accountable to the Canadian people.

Quite simply, the Senate is an artifact of a long ago time where aristocrats and nobles wielded influence and power without being accountable.

Incredibly for an unelected institution, the Senate has powers that are nearly equal to those of the House of Commons. For example, the Senate can block legislation passed by the democratically elected House of Commons. It can compel government officials and Canadian citizens to appear before Senate committees. The Senate can propose and pass legislation and send it to the House of Commons for approval.

As Members of Parliament, I am sure we can all agree that it is utterly absurd for the members of the unelected, unaccountable Senate to have power nearly equal to the equal, accountable House of Parliament that we are all members of, the House of Commons.

This is not healthy for the Senate, it's not healthy for democracy in Canada, and it's not appropriate for the 21st century. That's why we introduced two bills to create a modern and accountable Senate that is consistent with modern and contemporary democratic values, principles, and traditions.

The first bill, Bill C-19, will put an end to terms of up to 45 years for senators by limiting their terms to eight years. The bill before this committee, entitled the Senate Appointment Consultations Act, is Bill C-20, and it creates a process for giving Canadians a say in who they want to represent them in the Senate by holding popular consultations with Canadians to fill vacant Senate seats.

The bill is carefully drafted to ensure that the Senate will remain a chamber of independent sober second thought and that its essential positive characteristics are maintained.

This legislative proposal is drafted so as not to make any changes that would require a formal constitutional amendment.

The formal legal method of selection remains unchanged. The constitutional powers of the Governor General to summon Canadians to the Senate and the conventional prerogative of the Prime Minister to recommend appointments are unaffected. The constitutionally stipulated qualifications of senators are maintained, and the consultation process can take account of whatever length of term Parliament ultimately decides to establish for senators. This legislative initiative does not change the constitutional role of the Senate as the arbiter of questions respecting the qualifications of senators.

This bill provides the government with the flexibility to decide whether and when to use a consultation, in how many provinces to hold a consultation during a federal or provincial election, and for how many seats, be they vacant or not. This flexibility is important. It will help to ensure that nominees are available to fill seats as they become vacant.

For the first time ever, Canadians across Canada will have a direct say in who should represent them in the Senate; however, the bill must become law before that will happen.

That is why, in a serious effort to pass this bill and achieve a modern, accountable Senate, the government asked for this bill to be sent to a special legislative committee—this committee—before second reading.

We want to work cooperatively with the opposition parties—as we did, for example, on extending the mission in Afghanistan—to bring real change, real accountability, and real progress to the Senate. It's something that Canadian people have been consistently supporting in every opinion poll taken since we formed the government—I suspect, actually, in every opinion poll that might have been taken since slightly after Confederation.

In recent public consultations on democratic reform that were completed last year, 79% of Canadians said they supported electing senators and 65% said they supported term limits for senators. The fact is that support for Senate reform is overwhelming in Canada.

Which is why we have consistently stated that we are open to different approaches on the details of Senate reform, but we will not compromise on one fundamental aspect: the Senate must change.

However, members of this committee should note that if change cannot happen through reform, if the Senate and establishment interests demonstrate that they are resistant to the idea of a modern Senate, then we believe that the Senate should be abolished.

It's not our preferred route. We prefer to try to reform the Senate before we resort to abolishing it. But if those vested interests continue to use their unaccountable and illegitimate democratic powers to resist democratization and effectively block it, I believe abolition is a route that Canadians will want us to travel.

At the end of the day, our government is committed to modernizing the Senate to reflect the 21st century democratic principles, values and traditions of our great country.

I hope that the members of this committee will work with the government in a spirit of good faith to advance this important bill, which is overwhelmingly supported by Canadians, to help create a modern and accountable Senate.

I'd be pleased to take any questions that you have.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Minister.

Mr. Murphy.

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

Thank you, Madam Chair.

Thank you, Minister, for appearing here today.

First, I'm a bit surprised that we're here today talking about meaningful Senate reform when the body of evidence from the Senate—based on previous bills, debates, and testimony—would indicate that there is no consensus on whether this bill is constitutionally valid or on whether it is accepted by the stakeholders, by which I mean the provinces.

In my own province of New Brunswick, it's certainly not clear that you, as the minister responsible, or the Prime Minister have spoken to Premier Graham, who is both Premier and Minister of Intergovernmental Affairs. It seems clear from the words of Danny Williams, Benoît Pelletier, and the list goes on...I don't want to talk about Ontario, because Ontario and your name don't always go hand in glove.

But the simple question is, why are we here when you, in discharging your duty as minister, have not yet had full discussions on Senate reform and this bill with your provincial counterparts?

[Peter Van Loan, Conservative, York—Simcoe, ON]

Well, I think it's been quite clear, when the bill and the concepts of Senate reform have been studied before, that the approach we're taking is entirely constitutional. As you're aware, if it were to be a major, wholesale change to the composition of the Senate, for example, that would require the constitutional amendment process, the 7/50 formula and the like.

This is not that kind of change. This is a change that's entirely constitutional. That's been confirmed by the strongest authorities in the area of constitutional law in Canada. Peter Hogg, who taught me tax law, who is widely seen as the senior constitutional expert in this country, believes that the bill is entirely constitutional. Patrick Monahan, who taught me contract law and gave me a better mark than Peter Hogg did, is of the view that this is entirely constitutional and appropriate.

If we were to wait to have a consensus among the provinces for how to change the Senate, the wait would be, at least so far, over 140 years. So we believe it's necessary to move forward with change that is constitutional, that is incremental, and that responds to the fundamental lack of legitimacy within the Senate right now.

I will point out that there have already been senators appointed that are the product of a popular election process. That's happened on previous occasions already. One of those, Senator Bert Brown, sits in the Senate right now. I don't know of anybody who suggests that his presence there is unconstitutional. I don't know that anybody thinks it is inappropriate. I think most people regard the fact that there is someone there who enjoys a popular mandate as something that enhances his legitimacy and the legitimacy of the overall body. I think that's how it would be perceived overall.

But I can assure you that on the fundamental question of constitutionality, it's quite clear that this bill--and our proposed incremental amendment is a modest amendment--is entirely constitutional.

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

I don't think, respectfully, that we're going to agree on the constitutionality. There are many experts on the other side. And I don't think I accept your answer as legitimate with respect to consultation with the provinces.

But let's get into the technical aspects of the bill. In my own province of New Brunswick, there are currently four members of the Senate, out of the nine that are filled, who are francophones,

Acadian or Brayon, have a French name or speak French. It is very important for our province to protect minority language rights, in particular the rights of New Brunswick's Acadians.

If we change and go to the mechanics of your bill--and I'm asking this question--and if there were an election/selection in the province of New Brunswick someday during either a provincial or federal election, as the bill purviews, would it be a province-wide election? And would you concede that it would probably mean, in a majority anglophone province, that there'd be very little Acadian minority protection? If that applies in New Brunswick, it might apply to a lot of minority situations with respect to Senate representation.

As you know, there's a much greater degree of female representation--in this, International Women's Week--in the Senate than in the House of Commons. How would you address the issue of minority representation, given your carte blanche, opening day, first-past-the-post election process?

[Peter Van Loan, Conservative, York—Simcoe, ON]

Well, I'd encourage you to actually read the bill, because clearly you haven't. The process laid out in the bill is not a first-past-the-post election process.

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

No, but it's province-wide, is it not, Minister?

[Peter Van Loan, Conservative, York—Simcoe, ON]

It's a province-wide, single transferable vote process, which is profoundly different from first past the post, and it results--for example, if you were dealing with a case of four vacancies--in a situation where the number of first choices you would require, or accumulated preferences, or others to drop off would be 25%, roughly a quarter of the population. So from that perspective, a minority is more secure in ensuring that its representation--can be there, if they wish to engage in group voting. I don't want to speculate on that or whether it's appropriate, whether one should go there.

The notion that a benevolent, non-democratic, unaccountable appointment of people, because it might result in increased minority representation, could equally not result in minority representation, depending on who's doing that appointment, is anathema to our democratic system. The logical extension of that argument is, shouldn't we do away with the House of Commons? Shouldn't we do away with any form of democratic representation, because we should simply come up with some format whereby we ensure each minority group has a certain amount of representation and some benevolent absolute monarch should appoint those people? That's the logical extension of that argument.

I think in this day and age people have a right, in a western democracy, to expect their democratic institutions to have a basic level of democratic function. That means the people who are being represented are actually being represented--not that some single individual decided that person would speak on behalf of hundreds of thousands or millions of people, but that those individuals, those people who are allegedly being represented, get to have a say in who represents them. It's a pretty fundamental principle of democracy. I think that when one looks around the world, the countries that have done the best job of ensuring that minorities are protected, that their rights are protected, are those very countries that function in a democratic fashion and let people have a say, because democracy works. People find a way to get along. Democracy works as a way of working out the interests between minorities and majorities, or between various minorities.

I think the track record of humanity is very strong in that regard. Almost every incident of serious persecution we've seen in this world of minorities has happened in systems where that kind of democratic function is lacking.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Minister.

You have the floor, Mr. Paquette.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you, Madam Chair.

Thank you for joining us. You noted the following in your presentation: “This legislative proposal is drafted so as not to make any changes that would require a formal constitutional amendment”. You also stated that the method of selection set out in the Constitution would remain unchanged. You make a number of assertions in your presentation. However, the Government of Quebec does not appear to share your views.

Quebec's Minister of Intergovernmental Affairs, Mr. Pelletier, when commenting on bills that had preceded S-4, and C-43, which later became C-22, observed that taken together, the two bills substantially altered the balance between the House of Commons and the Senate, as well as the balance between federal and provincial institutions.

In his view—I share his opinion, obviously—the federal government and the House of Commons cannot act unilaterally to amend the Senate particulars set out in Bill C-20, because any change of this nature requires constitutional negotiations. In its submission, the Quebec government made specific mention of the Supreme Court's ruling on Parliament's jurisdiction over the Upper House and on major changes to the essential character of the Senate which cannot be made unilaterally.

Have you discussed Bill C-20 recently with the Quebec government? Has the Quebec government possibly altered its view that changes of this magnitude require constitutional negotiations between the federal and provincial governments?

[Peter Van Loan, Conservative, York—Simcoe, ON]

Thank you, Madam Chair.

Quebec's position on this issue and on Bill C-20 is no secret to us. It is critically important for us that Quebec have a voice in selecting the people who serve in the Senate.

We believe that in terms of consultation, this is a bill about consultation. This is a bill about asking Quebeckers who they want representing their province in the Senate. Of course, the approach right now doesn't ask Quebeckers that. A Prime Minister essentially gets to decide who will represent Quebeckers, a Prime Minister who very well might not be from Quebec. In our view, we think that Quebeckers will be much better served if they actually have a say.

In terms of what the Province of Quebec thinks of the appropriateness of an unelected upper house, I simply go back to what the Province of Quebec did itself. The Province of Quebec had a bicameral process. It had two houses. But in 1968 the Province of Quebec said that in the modern era, after the Quiet Revolution, where one is trying to strengthen and enhance democracy, the notion of an unelected second house was simply unacceptable. Quebec made its decision in 1968 that the day of the unelected, unaccountable upper chamber having full legislative authority was long past. That's why in 1968 that province chose to abolish its upper chamber and it now has a single chamber. I think that is a clear indication of the position of Quebec on what it thinks of the notion of an unaccountable, unelected upper chamber.

[Pierre Paquette, Bloc, Joliette, QC]

If you were to poll Quebeckers, you would discover that no one is losing sleep at night wondering if a public consultation should be held to select a senator. However, you would learn that most people feel the Senate should simply be abolished and that the proposed changes will make absolutely no difference because this institution had outlived its purpose. Furthermore—and this was the opinion expressed by the Government of Quebec in its submission—the bill would alter the balance of power between the provinces and provincial and federal institutions. For that reason, constitutional negotiations are needed. We have said many times that these changes cannot be made unilaterally by the federal government and the House of Commons.

You mention that Quebec effectively did away with its legislative chamber in 1968. That is not a good example. The province of Quebec is part of a larger federation comprised of federal and provincial jurisdictions. As such, federal parliamentary institutions cannot be amended without the consent of the provinces.

The National Assembly unanimously passed a motion calling on the federal government and the Parliament of Canada not to make any changes to the Canadian Senate without the consent of the Government of Quebec and the National Assembly. This motion was forwarded to the government and as far as I know, neither the National Assembly nor the Government of Quebec has changed its position on this matter.

If the Government of Quebec opposes Bill C-20 on the grounds that constitutional negotiations are needed, along with the consent of the provinces to the proposed Senate changes, will the government be prepared to move forward if Quebec, which has been recognized as a nation within Canada, is not on board? Quebec's opposition should, in our opinion, be equal to a veto. Would you be prepared to forge ahead without Quebec's support?

[Peter Van Loan, Conservative, York—Simcoe, ON]

There are so many questions here, I don't know where to start. I'll simply go back to what I think is the core question of how Quebec is best represented in the Senate.

My view is that Quebec is certainly better represented in a Senate where Quebeckers get to have a say in who represents them. There's every possibility of a government, of a Prime Minister, in this country, having a minority status position, and for example, not representing a single seat in the province of Quebec, yet that Prime Minister being the person who decides, under the current rules, who will represent Quebeckers. I think that situation is one that can cause a lot more tension in the country than an alternative situation where the people of Quebec are asked who they would like to see representing them in the Senate.

I think the opportunity of a people of a province having their own say is a far superior approach than maintaining a system that's unaccountable, where they are denied a say, or frankly, right now, where the province is denied the say. Under the current law, a province doesn't get to appoint its representatives in the Senate. There is no provincial power being protected by keeping that authority solely in the hands of a Prime Minister and not having the opportunity to ask the people of that province who should represent them.

I don't see any derogation of the powers of the province. There is no effort to limit or alter this level of representation in the Senate. Instead of asking someone who, say, might be a Prime Minister from Manitoba who should be representing Quebec, we ask the people of Quebec who should be representing Quebec.

[The Chair, Liberal, Albina Guarnieri]

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Let me say first, Minister, that I'm very pleased we're dealing with this matter today. I find Bill C-19 and Bill C-20 very interesting, and I admire that your government is taking this on. You will know that in the history of my own party since the 1930s, one of the basic tenets of the CCF was to abolish the unelected Senate. That language is important. We reaffirmed that at our most recent convention in September 2006, to abolish the unelected Senate. I don't know what the opinion of my party would be if someone came up with a motion to abolish the Senate; I don't think it would be a view that is as widely held within the party.

I note that there have been 13 efforts to reform the Senate since 1900, all of which have crashed and burned after various periods of time. As a starting point, I think my party would have liked a nation-wide referendum on whether we want a Senate at all. In fact, we put an opposition day motion forward to that effect recently.

Has your government contemplated a consultation of that kind in the lead-up to this legislation?

[Peter Van Loan, Conservative, York—Simcoe, ON]

Certainly I can tell you that has been contemplated and considered. What is common between the position of the government and your party is that an unelected Senate is not justifiable; a Senate that is entirely undemocratic and appointed without any accountability to the people is not acceptable in a democratic society.

Our hope, obviously, is that we can salvage the Senate by introducing a democratic element that has been absent until now by asking Canadians who they want to represent them. We think that kind of incremental improvement should be given an opportunity. We know there are some parties that don't want to see that opportunity because the Senate has served their interests very well, but I think it's difficult for anybody to seriously make the case, in the year 2008, that there is something inherently democratic about an unappointed and unaccountable Senate.

[Pat Martin, NDP, Winnipeg Centre, MB]

There's also something very democratic about asking the people what they think. Even Hugh Segal, a Conservative senator, who everyone agrees is a very hardworking senator and probably uses his office well, says there is nothing radical about asking people what they think. He is advocating that there should be some kind of referendum.

I'm concerned that this will be the fourteenth failed effort to reform the Senate. There are people who think you're setting it up that way because it might be worth more to you at the next federal election campaign to point to the big bad parties that wouldn't let you reform the Senate. Let's put our cards on the table; that's what people are saying.

[Peter Van Loan, Conservative, York—Simcoe, ON]

I can assure you that our intentions to see a modernized Senate are quite sincere. But I can also assure you that if those efforts prove to be frustrated, our preference is not to go out there and complain about it; our preference would be, if it is fully blocked, to go the path that your party indicates and ask Canadians to explore the options for abolition. Perhaps that's something that this committee, in its wisdom, can look at as well.

We've given you broad latitude by putting this here before second reading. Perhaps that whole issue is something that can be canvassed as part of your study: whether abolition is the appropriate step right now or whether reform change in terms of democratization of the Senate is an appropriate step to take. Between those, I think honest, intelligent debate could take place. I think that would be worthy work for this committee.

What I fear will happen, and I hope it won't, is that those who like an unelected, unaccountable Senate because it serves their political ends—it's a great place to pay off your buddies who have done working campaigns and so on--

[Pat Martin, NDP, Winnipeg Centre, MB]

Let's not go too far down that road. You have Michael Fortier sitting in the unelected Senate right now, Minister.

[Peter Van Loan, Conservative, York—Simcoe, ON]

There's someone, again, who has, I think, a philosophy not too far from yours on the functioning of the Senate.

[Pat Martin, NDP, Winnipeg Centre, MB]

That's true.

[Peter Van Loan, Conservative, York—Simcoe, ON]

He's made those views clear—that it has to change, that it can't continue to function in this way—and he is quite prepared to submit to an election to the House of Commons.

What I fear from this committee is that people will hide behind questions like consultation with the provinces or other specious arguments to fail to deal with the fundamental one about democracy. You can say we don't need to have elections, we don't need to be democratic, or whatever other trivial argument you can come up with.

I think democracy is a pretty fundamental question.

[Pat Martin, NDP, Winnipeg Centre, MB]

I don't disagree.

[Peter Van Loan, Conservative, York—Simcoe, ON]

It's pretty fundamental in the 21st century, in 2008, whether it takes the form of democracy in the selection of senators, in recommendations of who should be representing people, or in the form of asking Canadians if they think the Senate should even continue to exist. There has to be a process where the Senate is no longer a private arrangement between a Prime Minister and whoever he or she decides to appoint to the Senate, but where it is an arrangement between the people of Canada, who are allegedly being represented there, and their representatives.