Mr. Speaker, sometimes people who perform at a concert will stand up and dedicate a song to somebody. I thought I might dedicate this intervention today to the memory of the Hon. Stan Waters, Canada's first elected senator, a man who demonstrated that having elected senators was definitely a step up from having a fully appointed Senate and who demonstrated as well, I think very clearly, that having an elected Senate was superior to having no Senate at all, no sober second thought at all.
I want to divide my remarks today. I only have 10 minutes, but I will to try to divide them into three sections. First, I want to talk about the idea of bicameralism. Second, I want to talk about why the reference questions are being presented as they are to complex form. Three, I want to talk a bit about the way in which the Supreme Court should address this issue.
Let me start with the issue of bicameralism. The New Democratic Party proposes to cause Canada to become a unicameral federation, a federation in which the federal Parliament has one house only. This would make us unique among the federations of the world. Australia, our good friends whose country is marginally smaller than ours, has a bicameral Parliament. Then there are the United States, the Austrians, the Belgians. Germany, which is also a federation, has a bicameral Parliament. Switzerland has a bicameral Parliament. There are some countries that are not federations, but they also have bicameral assemblies.
The point I am making is, we would be venturing out in a direction that is very distinct from the pattern that has been engaged in by other countries. It is very distinct from the vision the Fathers of Confederation had. They spent more time discussing in the 1864 Confederation debate the issue of what to do with the upper chamber than they did on anything else, very nearly more than everything else put together. It was a widely discussed issue in all the newspapers at the time.
While we may feel the current Senate does not accurately reflect what their intentions were, having no Senate definitely would not achieve what they were after.
In all fairness, to amend the constitution, we could say that their vision was out of date and that we were amending it to reflect a more modern understanding, and that would be legitimate. However, let us be aware of the fact that this is a major departure. That was the first point I wanted to make.
The second point is to talk about the nature of the reference question. Canada has a constitution that is unique in one other respect. We do not have a single amending formula in our constitution. To amend the Canadian constitution, depending on the part that is being amended, it could take place by means of a unilateral amendment passed here or in the Senate; or a unilateral amendment passed in a single provincial legislature; or it can require an amendment passed both in the provincial legislature and here; or it can involve the approval of seven provinces with half of the population, the famous 7/50 formula; or, in certain cases, unanimity is required.
There are aspects of the constitution on which it is not clear which amending formula ought to be used. This has been a considerable source of frustration as we try to work our way through the Senate, where it seems likely, although not certain, that more than one amending formula must be used, depending on the kind of amendment that is made and on the part of the Senate that is being altered.
If, for example, we want to eliminate the requirement that senators must own $4,000 of real estate in the province they represent, can we do that through a unilateral amendment, or is some other amending formula required?
If we want to deal with the question of independence of senators, whether they are going to be independent, what formula must we use?
If we are going to consider abolishing the Senate, as the New Democrats propose, what is required? On that one we know, at the very least it is the 7/50 formula. It is conceivable that it might be the unanimity formula. This is the source of several of the questions that are being placed before the Supreme Court in the package of reference questions as I would describe it.
The questions are broken up, dealing with Senate term limits, the Senate appointment consultation, property qualifications, Senate abolition. On the one dealing with Senate abolition, I will read what it says in the question:
Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act, 1982, by one of the following methods:
Then three different ways of potentially amending the Constitution to abolish the Senate are contemplated. Would any of these work? The attempt here is to determine whether or not we can actually use the 7/50 formula at all, or whether we have to resort to the unanimity formula.
It should be clear that either of these formulae would involve a very considerable amount of work trying to achieve the consent of the provinces. I am certain we would find very quickly that opening up the Constitution in this manner would lead to many requests for other things. It might well lead to requests from the provinces for some form of constitutional amendment and change to the Senate other than abolition. That is certainly a likelihood.
However, as a starting point, there really is no point in going to the provinces until we know what the legalities are. Does Prince Edward Island hold a veto, as does every other province if unanimity is required, or can we achieve agreement if only three provinces are holding out and we have provinces representing half the population? We had better figure that out before we proceed forward on a particular strategy. We certainly should not shut down the other options, which might indeed be the kinds of things that the various provincial legislatures would like to see and indeed the people of Canada would like to see.
The last topic is the issue of the tools that are available to the Supreme Court as it goes forward in dealing with these questions. We ask questions like what it means for senators to be independent. Does that mean that having some form of election process is a compromise? Does it mean that the potential for re-election compromises their independence? Does having a term that is eight or ten years long, one or the other, allow them to be genuinely independent?
To determine that, one has to go back and examine what was meant by independence in the minds of those who were discussing what would become the British North America Act, when they were debating it in the 1860s; and not only that, but those who were discussing similar issues for the prior institution that was replaced by the Senate. I refer to the legislative council of the united Province of Canada, which was implemented under the Act of Union of 1840 and then was changed from an appointed to an elected institution in 1856. There are records of debates dating back to these times. They are not readily available, but they need to be consulted to ensure a fulsome presentation of the facts to the members of the Supreme Court on this and other similar questions that are highly technical in nature.
I mention all of this because of the fact that I am involved in an effort to try to take many of these documents—many of which are available only in limited numbers, frequently in documentary form, in various archives—scan them, make them available and put them online through a website that will be called originaldocuments.ca. Our intention is to have as close to an exhaustive compilation of these documents as possible in time for the Supreme Court's hearings, for those who are advocating on both sides of each of the questions involved and also those who are going to ultimately be ruling on these questions.
Letting the process continue as the government has laid things out in Senate reform—which is to say allowing for the Supreme Court to consider these options, to provide thoughtful, thorough responses to these questions, as it did on a previous ruling that dealt with Senate reform about 30 or 32 years ago—will allow us to move forward in whatever direction seems best to the people and the provinces of Canada. That is preferable to moving in the direction the NDP is proposing today through this motion.