Mr. Speaker, it is my pleasure to support the motion of the President of the Treasury Board that vote 1 in the amount of $26,952,000 under the heading Parliament-The Senate be concurred in.
It would be appropriate for me, speaking on behalf of a government that is committed to fundamental institutional change and modernization designed to update our institutions for the economic and other problems at the end of the century and the beginning of the next, to comment on the role of the Senate as an institution in our governmental system. One of the first things to recognize is the antinomies presented by the Senate in its present operation.
On the one hand, and I quote from the beautiful wood carvings in the office of the president of the Senate from the Roman saga Seneca : ``Nothing is well ordered that is hasty and precipitate'' which of course indicates attention to the conventional role that senators talk of themselves today, a House of sober second thought.
It is balanced by the quote from the great Roman tribune Cicero which translated says: "It is the duty of the nobles to oppose the fickleness of the multitudes". Horace, who is a more popular poet, put it a little better when he said: "Odi profanum volgus et arceo!"I hate the profane mob, I keep aloof from them.
The Senate has always had this particular problem that you are exerting a power historically of correction and revision of a lower House that over the centuries had become increasingly more representative and fully democratized by the opening of the 20th century with the expansion of the franchise. Yet it is a House that over the centuries became increasingly more representative and fully democratized by the opening of the 20th century with the expansion of the franchise and yet the Senate has remained with a constitutional system that is wholly non-elective and that by the beginning of the 20th century had become anachronistic in historical terms. Indeed, the great House at Westminster, in light of which the Canadian Constitution Act in 1867 was framed and which members of this House refer to reverently and probably appropriately in that sense, abolished the powers of the House of Lords, the upper House, effectively in 1911.
The Parliament Act of 1911 reduced the powers of the House of Lords to a suspensive veto of two years. This was in 1911. It was a reform measure introduced by a dynamic Liberal premier, Mr. Asquith, and his lieutenant, Lloyd George. It was changed after World War II by the Attlee government through reduction of the suspensive veto to three months.
There was a recognition that the principle of constitutional legitimacy which is one of the hallmarks of western and western derived constitutional democracy requires that large discretionary powers be based on an electoral mandate or some species of electoral confirmation.
So there is the dilemma for the Senate today, one which we have lived with for a considerable number of years and for which we have not as yet made the steps taken by the House at Westminster, the model for the Canadian Parliament.
I had the pleasure of addressing a seminar of eastern European parliamentarians who were here last week seeking advice from the Canadian Parliament, seeking to benefit from our experience. One of the Polish members of Parliament, a thoughtful gentleman who is also a professor of law at the University of Warsaw, said to me: "You have unconstitutional constitutional provisions in your constitution". It sounds like an oxymoron and yet it is there. He said: "Look, I have read in the Constitution Act that to be a member of the Senate you have to have property worth $4,000". He said: "Is that democratic? It would not be constitutional in Poland".
My friend, who is a senator and whom I respect was with me, explained that in 1867, $4,000 was a fortune. You could buy a carriage with four horses and various other things. Today perhaps it buys several cups of coffee or more. The comparison was perhaps a little bit far-fetched but nevertheless the point was made to our Polish colleague. He said: "Nevertheless, it is not a healthy part of a constitutional charter to have this in. Why do you not get rid of it?" Then we had to get into the intricacies of how you change the Constitution of Canada since the time of the Constitution Act of 1982, which put us in a constitutional straitjacket in relation to direct constitutional amendment but which would leave, nevertheless, possibilities of change by more pragmatic and ingenious methods.
I would like to add something and I did this in conversation with a very thoughtful senator today. We were talking of unconstitutional constitutional norms which is a European concept really devised in the belief after World War II that there must be provisions on which you can challenge Nazi or communist constitutional provisions that are in denial of constitutional principles in the constitutional charter itself.
One of the points I raised with him, because he was approaching retiring age, was: "Do you think it is constitutional in Canadian terms to have mandatory retirement at the age of 75?" Of course the answer is that it is not. This would be another point to consider.
I would raise the basic point whether a non-elected House today is constitutionally legitimate and therefore constitutional in the large sense. Obviously I am not suggesting that we rush out to the Supreme Court to obtain a declaratory judgment or advisory opinion on this point, although I do think that the most recent ruling in 1979 by the Supreme Court of Canada on reform touching the Senate was somewhat wide of the mark even then.
Today, granted changing public opinion controls so much in public law and the evolution of the public conscience which affects the content of constitutional norms, I would wonder whether that 1979 decision is not worth re-examining. Nevertheless in the context of the Senate today, and granted the difficulties of amending the Constitution by the front door methods the Trudeau patriation project introduced-we do have to face this issue-is the fact that we have a non-elected second chamber, part of the widespread public disaffection with constitutional institutions and processes today. I think the answer is yes.
What can we and the Senate collectively do with this? By the way, one of the suggestions I have always considered is that the courts should be used more fully. Could a constitutional ruling be obtained and, following the example of litigants in far-reaching constitutional matters of this sort before the United States Supreme Court, could one not ask the court to delay application of any ruling for enough time to allow a corrective constitutional amendment or other change to be made?
Let me, however, return to the more practical and immediate issues that could control our approach to the Senate. The Senate can be changed without its own assent. This is one of the changes made by the Trudeau constitutional patriation act of 1982, the Constitutional Act, 1982. Only a certain time delay is involved.
There are areas in which change could be made without necessarily involving the provinces constitutionally and therefore touching the power of the federal Parliament alone, which then would require the Senate's assent or delay.
I hasten to say that I advanced some of these propositions in evidence as an invited expert witness before the Senate and the House in previous years. I have said in other committees on which I saw one of my learned colleagues opposite, a pox on expert witnesses or self-styled expert witnesses. I have to say with all humility that when I have been summoned as an expert witness by the Goldenberg committee, an excellent committee of the Senate, and by the Molgat-MacGuigan committee and others I offered these suggestions with all modesty.
One of the issues would be whether the Senate would not better assume a role, as the United States Senate has, in confirmation or review of executive power rather than in review of legislative power in which its lack of legitimacy through direct election limits it. The public appointing processes in the United States are subject to Senate confirmation, as to the Supreme Court, ambassadorial appointments and what we would here call crown corporations. This is an important and democratic role in the United States and one that ensures the better functioning of the public services.
The Senate role in foreign affairs, the two-thirds Senate majority necessary to confirm a treaty made by the United States, gives a role for a body removed at once from the executive power making the treaties and from a house often subject to too much sectional pressure.
These are the sorts of powers one proposed to the Goldenberg committee, to the Molgat-MacGuigan committee and to others under condition that the Senate be reformed and be elected.
One further role would be the election of the head of state, the Governor General. There is a case to be made for this and for providing a further constitutional legitimacy for that office. Once again this is a condition precedent. A condition precedent would be electing the Senate or in some way legitimating it by some other process.
In western Canada there is a strong body of opinion associated with a former Social Credit minister, Rafe Mair, known for broadcasting and other activities, that the Senate should be a states house, very much like the German Bundesrat. The Bundesrat is really a body for federal-provincial co-operation in the practical administration and application of legislation. It is not really a second chamber in the North American or British sense. It is an interesting model.
I raise these areas in which change in Senate powers, new powers, could be introduced and provide a worthwhile and valuable role, a necessary countervailing power granting conditions at the end of the century to an executive power that many feel has become presidential and therefore without the checks and balances however applied to presidential power in the United States and some other countries.
How would we change the Senate? Granted there are the difficulties of amending it and expecting that we are not going to have a fundamental act of constituent power that usually occurs only after revolutions or great military victories in other countries. Certainly some changes could be made by convention, by custom.
The Government of Alberta proceeded to elect somebody whom it designated as a candidate for appointment to the Senate. In one case the Prime Minister of Canada accepted that advice and appointed the person so elected. If that were followed it could create a general practice.
More interestingly, the Mulroney government, after the failure of the Meech Lake accord, proceeded to name four Quebec senators following the procedures outlined in the Meech Lake accord of consultation with the provincial attorney general and premier. Some would say that those are better Quebec senators than the usual type of nomination; interesting persons in any case.
In the meantime, though, the Senate itself can exercise self-restraint in its powers. Again to quote our Latin scholars, it probably would better to use the Fabian tactic of delay and conciliation without it trying directly to defeat measures.
I say this in welcoming the role of the Senate, a discreet role in relation to Bill C-18. I am not speaking of the confrontation with the House which I think would be unacceptable according to my constitutional thinking, but of the quiet conversations by individual senators with members of the House that seem to have produced a felicitous accord between the two Houses-maybe I am being premature-as to whether and how Bill C-18 should be adopted in its revised form.
This sort of process of interaction between two houses, a dialectical process, is very much in accord with the evolution of democratic constitutionalism. It produces a sensible and pragmatic approach to revising, updating and modernizing an institution that was honoured in its origins but has failed to keep pace with the changes in Canadian society, with the views on political representation and political constitutional legitimacy flowing from that and with the changes in other countries.
I commend to members, in voting on this measure which has my full support, that we keep in mind an agenda for constitutional change involving the upper house; that we keep in mind that the constitution is not simply an issue of the place of one or more provinces in Confederation, renewed or otherwise, but that there are larger issues involving the relationship between the citizen and the state; that we keep in mind that there are better functioning and more modern institutions that correspond more exactly to the main trends in democratic constitutionalism. This sort of change would do much to restore public confidence in our parliamentary institutions and in the people who serve them.
On this basis I am happy to support the motion as introduced.