Procedure and House Affairs Committee on March 8th, 2016

[Blake Richards, Conservative, Banff—Airdrie, AB]

It sounds as though, as in the comments that have been made by the minister and the parliamentary secretary, the process is built in such a way that no merit would be seen to someone being selected by fellow citizens in an election process. That's unfortunate.

Thank you.

[The Chair, Liberal, Larry Bagnell]

Thank you, Doctor. We really appreciate your being here today. Looking at your curriculum vitae, I know you have a lot of things and you are pretty busy. As all the committee members said, you are a great Canadian, so we appreciate your offering more service to the country, and we'll let you get back to work.

[Dr. Indira Samarasekera]

Thank you very much, Mr. Chair, for your kind words.

Let me say in conclusion that I am very honoured to serve Canada. I am very committed to this country. This is a great country with a great democracy, and I am very privileged to have a chance to meet with all of you.

I would like to thank you all for your very kind questions, for your comments, for your thoughtfulness, and for the opportunity to engage in this way.

[The Chair, Liberal, Larry Bagnell]

While they're transitioning the mike over to committee business I'll give a few updates to the committee.

Our research has been very busy. We have four more documents coming probably tomorrow, and I assume we will let these be public as we did the other research. The first one is a follow-up to questions that came up during our discussions that we asked the researcher to follow up on. The second one is a bit of a study on day care and on child care centres in other jurisdictions. A third one is on electronic voting. Then there's a fourth paper that was done for the House of Commons by the procedures clerks who offered their services to us. We asked them what might hypothetically go before an alternate chamber if we had two chambers. You will get a paper tomorrow on that.

Over the last week I was in Sweden for another reason. The Parliament there only sat three days most of the time, they had all their votes on Tuesday or Wednesday, and the voting was by electronics. They have the same number of MPs we do or a few more. They only gave them about five seconds, so everyone was glued to their seats. They did about four votes all within 60 seconds. They push their button, and then there's a whole board of green and red lights, and the totals come up. It took a lot less time than we take. When you get maternity leave, you get 80% of your pay and get a replacement to fill in for you. The ministers are not allowed to sit in the House because they're too busy, so they get a replacement. Only 50% of their ministers are elected, but of those who are elected they get someone to replace them to do their House duties and to do their MP duties. They're elected, but I don't know who the replacement is. That would be a good question, who they get for a replacement. Someone replaces them so they can do their ministerial work. They have to go to the House to answer questions, but they're not allowed to partake in the House. All of that was very interesting.

The Chief Electoral Officer was dumped because of our scheduled stuff. He suggested May 3 or May 5 because he's available. We might want to pick one of those dates and suggest it to him just to give him some certainty.

There are two other things as I mentioned while the Speaker was here. One is that we have the main estimates sometime to do in the next couple of months for the House. The other thing is that I got a letter yesterday from the Speaker on a different topic, which you'll get shortly. He was asking in the last House when they were doing the standing orders...he had made the point, and I'm sure it's in some documentation we got earlier, that it's not clear enough what authority he has to set the times of the sitting, etc. after an emergency like we had in the House. He had suggested in our review of the upcoming standing orders that we make sure we address that. When you see that letter, and don't answer now, I'd like it if you'd come to the next meeting to answer two questions. One is whether you would like to do that separately and get it over with, or save it for the big review of standing orders. The second question is that he suggests in the letter they could propose some wording of the standing order that would work. For me that would be great, but once again it's up to the committee if you would like them to proceed that way. We could discuss all that at the next meeting once you've seen the letter from him.

Mr. Chan.

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

Maybe this is something we might want to put to the subcommittee or to the steering committee. We're spending too much time here on that. If that's acceptable to the opposition.

[The Chair, Liberal, Larry Bagnell]

Good.

Now for the remainder of this meeting, the last 20 minutes or so, we have committee business.

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Thank you.

Would it be possible to return to the motion that I had before this?

[The Chair, Liberal, Larry Bagnell]

Yes, if that's the will of the committee.

Go ahead.

[David Graham, Liberal, Laurentides—Labelle, QC]

I had the floor at the end of the last meeting on that one.

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

I'm looking at the speakers list on that motion. I think Mr. Graham had the floor.

Is there anyone else who wants to speak? I think you wanted to speak, Mr. Reid.

[David Christopherson, NDP, Hamilton Centre, ON]

On a point of order, just refresh my memory, Chair, I just want to be clear in my own mind, but I believe the reason we're doing this motion instead of mine is that this flowed from our actual discussions and from the hearing, correct?

[The Chair, Liberal, Larry Bagnell]

Correct.

[David Christopherson, NDP, Hamilton Centre, ON]

We're cleaning that up before we get back to mine. My motion's been around forever. At some point we have to wrap that sucker up. I just want to be clear that it hasn't been thrown away. We're just doing this one in order of precedence, and then mine we'll still tuck in behind.

[The Chair, Liberal, Larry Bagnell]

Yours hasn't been thrown away. I wasn't doing any precedence, just what the committee wants to do, whatever the committee would like to do.

[David Christopherson, NDP, Hamilton Centre, ON]

No, actually, I wanted to be clear that we're all on the same page. I think I had actually acquiesced to that recognition. I just want to reaffirm. It's always better to reaffirm these things now than later on.

[The Chair, Liberal, Larry Bagnell]

Okay. We'll continue discussion on this. Maybe I should read the motion:That the federal members of the Independent Advisory Board for Senate Appointments be invited to appear before the Committee before the end of March 2016, to answer all questions relating to their mandate and responsibilities.

When the committee left off at the last meeting in the middle of the discussion, Mr. Graham had the floor.

[David Graham, Liberal, Laurentides—Labelle, QC]

When we left off last meeting we had not yet voted on the motion to recall the witnesses we had called under Standing Order 111 to address the scope of their mandate rather than their competence to carry it out.

David Christopherson referred to this lack of a vote as a big mistake as we walked out of the room, a comment which I found regrettable as I do in fact have a good deal to say on the topic and appreciate having the time to say it. It's about the longest you'll ever hear me.

It is my understanding that the minister's imminent appearance here in two days is specifically to handle the very questions my colleagues want answered. I am looking forward to that meeting.

However, there is a very important element of politics being played here by the members opposite. Before I get to the Conservative motion, I want to take a moment to refer to the New Democratic Party's position—the big mistake, if you will.

The NDP has never made any secret of their disdain for the Senate as an institution, and it is thus not in Mr. Christopherson's political interest to do anything whatsoever that would facilitate the process of replacing senators, Constitution be damned.

The Constitution Act is unambiguous. There shall be one Parliament for Canada, consisting of the Queen; an upper house style, the Senate; and the House of Commons. The NDP's position that the Senate must not exist is a purely political one not based on any form of reality. I'll get to that a little later.

Bringing back these three appointees, who we all agree are extraordinarily well-qualified people for the roles to which they have been assigned, to address their mandate serves, then, only to politicize the issue for the NDP. It creates a forum to go after the Senate rather than after those the government has charged with improving a system we are fundamentally obligated to have under the Constitution, whether we like it or not.

As it happens, I do like the Senate in principle, and believe it has a fundamental and inherent value to our process so long as it is neither time- nor term-limited, nor is it elected. While it's something I look forward to discussing at another time, that is not the subject of this particular intervention.

For Mr. Reid, he is frustrated, and frankly understandably, that the Standing Order under which we called Madame Labelle and Dean Jutras is very limited in scope. These are order in council appointments and the Standing Orders permit us to call these appointments for the purpose of evaluating their qualifications and competence to perform the duties of the post to which he or she has been appointed. The rule is there, logic suggests, to ensure that we ensure the government is making good hires. The policy decisions are not those of the appointees, but rather of the government itself. Standing Order 111 is not intended to turn appointments into pawns in larger political games.

It is worth noting, though, that in reviewing the records of this committee in the last Parliament, I can find only two motions to call anyone under Standing Order 111. One is for Richard Fujarczuk, the parliamentary law clerk, on May 28, 2013. Being called outside of the hours of a regular meeting for just 30 minutes, this is the one motion the Conservatives agreed to. While nobody on this side of the room knows how many motions were introduced and defeated, under the Conservatives' draconian use of in camera meetings, I would be hard pressed to believe no attempts were ever made.

The second reference was in June of last year, in the dying days of the 41st Parliament when Mr. Christopherson moved a motion to call the new Speaker of the Senate to test the qualifications. While I can't imagine the conversation would have been very interesting under the Standing Orders, presumably it was to make another political anti-Senate pitch rather than addressing the qualifications of the individual named. It could have only gone something like this:

“Senator, are you a senator?”

“Yes, I am.”

“Well, then, by gosh, you meet the qualification standard.”

Regardless, the government of the day voted down the motion without any public debate and without the record of the Standing Order at this committee. The most recent Parliament was frankly abysmal.

I don't personally believe in killing motions without considering them. Indeed, having 10 days off the Hill in the real world to think about it has given me plenty of opportunity to ponder it and put my thoughts down in writing. We have shocked our friends across this room on several occasions already by doing things like listening and accepting, or at least evading motions and ideas. We agreed to call the minister, something that our predecessor government would never have done based on an opposition motion. It had to be their own idea to be a good idea.

Members on this side will certainly not always agree with our friends on the other side of this small room, nor will we always disagree. For many of us, our instinct is to try to agree more than we disagree. I, at least, believe that a small part of making this place more family-friendly is treating our colleagues and their ideas with respect, and debating them on their merits, not their colours.

I believe in co-operation and coming to the best results based on the best ideas with the best information. Sometimes, though, we will simply not agree. On Mr. Reid's motion, this is unfortunately one of those times. It does not mean that sunny ways have clouded in. It simply means I don't agree with the motion, and so I want to debate the motion on its merits. I listened carefully to Mr. Reid's 1,200-odd second commentary on why he felt this motion was important. My point is not to suggest that he does not believe what he said, I believe he truly does, notwithstanding anything that happened in the 41st Parliament.

[The Chair, Liberal, Larry Bagnell]

Sorry, the translators are having a problem. Would you just talk a little slower?

[David Graham, Liberal, Laurentides—Labelle, QC]

The Conservatives' position on the Senate has not always been crystal clear. It was not to appoint any senators until the Senate withers and dies by pure attrition. Or, it was to have what they call a triple-E Senate, for equal, elected, and effective. Or it was to appoint elected senators, at least until they stopped liking the results of the elections. Or it really was to not have senators or a Senate. Or, it was to appoint partisan hacks in a hurry when the government was suddenly in danger of falling, and then deal with the consequences, of which there have been many, and not all of them have made the news.

I am sure that all of my hon. colleagues in this room are careful to only claim per diems when they are eligible to do so, for example, and that nobody here claims for lunch on sitting Tuesdays or Thursdays in recognition of the wide and delicious assortment of sandwiches we have here.

As a staffer attending the Standing Joint Committee on the Library of Parliament's first meeting of the second session of the 41st Parliament, I was surprised to hear one of these highly qualified Conservative senators from the class of 2008 state on the routine motion to order lunch, much like ours is moved, and I will quote directly from Hansard:

Please don't move it yet. With the AG moving in on us, if you and I had lunch, we could not claim a per diem for today.

The reason not to claim a per diem was because there was a looming audit by the Auditor General, not because it is the right thing to do.

Forgive me for thinking that the Conservatives do not have a great deal of credibility on any question relating to Senate appointments. Liberals, too, have not batted a thousand on Senate appointments. There is no perfection in the system as it has existed.

The system before us, the reason that Monsieur Jutras and Madame Labelle are here, is intended to begin the difficult task of fixing several problems that have cropped up in the Senate's past within the confines of the Constitution, a structure for which I have the utmost respect.

These boundaries were explained to us in black and white only a year ago by the Supreme Court, in a reference that we are no doubt all familiar with. This reads, in part:

The Senate is one of Canada’s foundational political institutions. It lies at the heart of the agreements that gave birth to the Canadian federation.

The problems are simple. The system of the prime minister picking a senator out of the clear blue sky, or red sky, depending on the flavour of the government of the day—orange skies never seem to be in the forecast—is not a particularly good system. We get some phenomenal senators, and we get some special cases. The terror of having any more senators claiming expenses to which they were not entitled or otherwise causing embarrassment to the last prime minister meant that senators simply stopped being appointed, so back to the attrition plan they went.

The Prime Minister that we have, seeing that the Senate's value exists only as an independent and non-partisan body, ejected Liberal senators from the Liberal caucus, telling them to get on with the independence on which the relevance of their jobs depends. I can attest to the effectiveness of this on a personal level. In spite of my years on the Hill, I barely know the names of the senators, have met few of them, and couldn't tell you what province or party most of them are from without doing a bit of research. It is a separation that I value.

However, this leads us to several structural problems. The Senate is a legislative body much like this one. I serve for the moment on two committees, as do most of my colleagues here, as well as on the executive of two sub-caucuses and an interparliamentary group.

The Senate is much the same. The sheer volume of work to do requires senators. The last senator standing would be a very busy person indeed, serving on every standing committee, having impressive monologues on every bill brought forward, getting deep into philosophical discussions with the bathroom mirror and so forth, except for the lack of any quorum, the lack of anyone to second bills, and a Speaker to even recognize them.

It is simply a matter of necessity to have senators within the confines of the Constitution as it exists. While the NDP wants to abolish the Senate, the Supreme Court was clear that the abolition of the Senate requires the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces. The Conservatives' occasional wish for an elected Senate too requires constitutional amendments. Again, I cite the Supreme Court reference, which reads:

The implementation of consultative elections and senatorial term limits requires consent of the Senate, the House of Commons, and the legislative assemblies of at least seven provinces representing, in the aggregate, half of the population of all the provinces.

Even term limits crash into the constitutional amendment brick wall. A change in the duration of senatorial terms would amend the Constitution of Canada by requiring modifications to the text of section 29 of the Constitution Act, 1867.

In the face of all of these constitutional requirements, the Conservative government was faced with total paralysis, choosing instead to leave seats vacant, close their eyes, stick out their collective tongues, and block their ears, shouting “nah, nah, nah”, rather than looking for plausible, realistic, and constitutional solutions.

I got my first start in politics at a rather young age, when the previous federal and provincial leaders thought that reopening the Constitution was a good idea. I don't think it is a great stretch to say that the constitutional wrangling of the 1990s did our national unity a whole lot of good. I don't wish for the reopening of the Constitution on anyone. It is a particularly heinous kind of curse, and is not something that should ever be taken lightly.

We must therefore work within the confines of the Constitution. It requires us to have a Senate. It requires senators to be appointed by Her Majesty's representative here in Canada on the advice of our Prime Minister. It is, however, silent on where the Prime Minister takes his advice on the matter. That is an issue the Independent Advisory Board for Senate Appointments, struck by order in council and subject to Standing Order 111, seeks to resolve.

The Prime Minister is still responsible for the final choice, much as with Supreme Court justices. But having a highly qualified advisory panel offer educated suggestions without a partisan lens can only serve to improve the quality of our sober second thinkers. This is different from electing senators, as this Supreme Court ruling makes clear:

Introducing a process of consultative elections for the nomination of Senators would change our Constitution’s architecture, by endowing Senators with a popular mandate which is inconsistent with the Senate’s fundamental nature and role as a complementary legislative chamber of sober second thought.

Sober second thought, in my mind, does not refer to the lack of imbibed alcohol. If that was a qualification, we would have our second debating chamber made up of me and a handful of other MPs who prefer not to drink. No, sober second thought refers to the lack of private or personal interest for the legislator. A senator who needs to please a political party or think about his re-election or what he will do in a post-Senate career loses that independence from personal interest. Aan elected or term-limited senator cannot meet the intent of sober second thought.

Other reforms, such as exploring whether senators should be allowed to continue working as anything other than senators, potentially clouding the sobriety of their independence, are plausible but outside of the scope of this particular debate.

If we get into the weeds with the members of the advisory board about who they do or do not consider an acceptable senator, we prejudice the very process they are charged with following. If we tell senator applicants what to do in their CVs to appeal to particular board members, we compromise the very independence of the advice.

They have their own mandate, given to them by the government, which gives clear instructions. Beyond that, it is their judgment, and we should not invite subjective judgment into their debates, or air their internal deliberations for the public to see. As with any hiring process, those not selected deserve the respect of not having their rejection on the public record.

All advisory board members will have to draw their own conclusions and do their own thinking as they consider who to suggest as our next senators to the Prime Minister. The Prime Minister will then have to fulfill his constitutionally mandated role of making the final decision.

Standing Order 111 exists for a reason. When we call an order in council appointment here, it is to discuss whether the person is qualified and competent to exercise the duties to which he or she has been named. If we wish to inquire more deeply into those issues, we can call a minister. And we have done exactly that. She will be here in just two days. I, for one, will be voting no on Mr. Reid's motion to recall these members.

Thank you.

[The Chair, Liberal, Larry Bagnell]

Thank you.

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

My intervention last time, so I'm told by Mr. Graham, was 1,200 seconds long; I had to look that up. That's 20 minutes. But for those who are interested it's also 1.2 million milliseconds and 1.2 billion nanoseconds. So I'll just respond briefly to this. I am hoping we'll have a chance to have a vote today.

A couple of things are factually wrong in what Mr. Graham said, and I thought I'd draw his attention to a bit of that. Elections are not forbidden in the reference ruling the Supreme Court made two years ago. I invite him to reread it. He'll see that federal enabling legislation is ruled as being ultra vires, outside the federal government's powers.

There was nothing indicating that Alberta's Senatorial Selection Act, for example, is unconstitutional. Nor are the choices made under that act such as that of Mike Shaikh, to whom my colleague was referring, a senator-in-waiting from Alberta, who will, unless Prime Minister Trudeau doesn't care about democracy, be appointed to the post to which he was elected in an advisory election. There's nothing unconstitutional about that.

The Alberta government still has on its website the fact that Mike Shaikh is a senator-in-waiting. We have several senators sitting in the Senate right now who were elected through that process. Senate elections are entirely constitutional as long as they're done the right way. The right way has been indicated through the process adopted by Alberta and I hope will be adopted by the provinces in time, one that could indeed be the system by which Canada's Senate becomes democratized in every province and ceases to be a 19th century institution.

I should mention as well that if one rereads the Confederation debates... I invite Mr. Graham and anybody else to do so. They are available on a website to which I've contributed called PrimaryDocuments.ca. You can take a look at the Confederation debates and you'll discover that many of the Fathers of Confederation were advocates of an elected Senate. The reason the Senate became an appointed body, historically speaking, is that it was a way of providing jobs to the people who were in the legislative council of the Province of Canada who otherwise would have opposed.... In other words they were bribed by Senate seats. That's a matter of historical record that was brought up several times in the course of the first Parliament in the new Dominion of Canada. To get the record straight the members debated as to whether or not Sir John A. had handed out the bribes to the former legislative councillors as per his secret agreement with the members of the other party in the pre-Confederation Parliament of the Province of Canada.

Mr. Graham is suggesting here that if we're going to get the minister in on Thursday every question we have will be resolved, therefore we don't need to bring back the members of the advisory committee to answer substantive questions about what they're doing and how they're conducting their affairs. I'll just say several things.

One is that these are people who have demonstrated discretion. I think we've all agreed that they are all very discreet people. They know when they have to stop answering a question. Just as when we bring ministers here they have to know this is the point at which it's a cabinet confidentiality and they can't go beyond that. We trust in their competence. I don't think Mr. Graham would dispute their competence, their ability to know when they need to refrain from answering some aspect of a question that would involve a violation of one of the secrets they are entrusted with. I have no fear there and I don't think he needs to have any fear either.

The other problem we've got is that the minister is going to come here and there's every chance that she's going to say she's not privy to some of this information. For example, the question I asked today about how many organizations have you been in touch with and was it the three permanent national members of the committee or was it the provincial members who contacted these individuals. I think this is quite germane to the issue of whether or not these are individuals or organizations that represent—what kind of interests do they represent? I don't think the minister would know that. Maybe she will but there's a great chance she won't, after all this is supposedly an independent advisory board.

If we take the process as actually working the way that it's said to work, then presumably she wouldn't. We have questions like this that she can't answer. A series of questions will simply go unanswered, and look, it becomes hard to believe after we've seen that every time I try to raise a substantial question, it gets shut down.

I do thank you, by the way, Mr. Chair. I thought you handled it right this time. You gave the witness the choice of answering, as opposed to saying that she couldn't do so. I've never approved of that technique whenever a chair does it.

But on the constant points of order—you can't ask this question, you can't ask that question—if we accept that the standing order is the reason why, then the solution is to bring them back under a different standing order, where we can seek answers to these questions and actually get substantive responses.

My expectation is that on Thursday we will be disappointed, simply because either time will run out.... The minister, after all, has to answer questions on this issue and on a number of other issues. She has one hour to do so. We'll be dealing with, for example, the issue of legislative reform in regard to electoral reform and whether we change our voting system, how, and what her system is. There won't be much time to deal with this, unless we bring her back.

I'll just say now that in the event that it turns out she can't deal with these questions and this is defeated today, I'll be bringing back a version of this same motion to accomplish the goal in light of the new facts of having not received full answers from the minister, not because of ill will but because of time constraints and a lack of knowledge of things to which she is simply not privy. Likewise, if we find that we're unable to probe deeply enough into the Senate and that process with the minister because we're dealing with the other issue that's on her plate, then I'll be asking for her to come back as well.

Having said that, I'll stop now. We could go either to a vote or to a different person, depending on what the speakers list looks like.

[The Chair, Liberal, Larry Bagnell]

Mr. Chan, you're on the list. We have about one minute left.

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

I had a simple question about how many more are currently on the list.

[The Chair, Liberal, Larry Bagnell]

Now there's Mr. Christopherson, who was just added to the list after you, and Ms. Sahota.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I'm glad to see that we have that filled up again so we can make sure that no vote will occur.