OTTAWA, Wednesday, March 29, 2017

The Special Senate Committee on Senate Modernization met this day at 12 p.m. for the consideration of methods to make the Senate more effective within the current constitutional framework; and, in camera, for the consideration of a draft agenda (future business).

Senator Tom McInnis (Chair) in the chair.

[English]

The Chair: Honourable senators, I call to order this meeting of the Special Senate Committee on Senate Modernization. During this phase of its work, the committee is focusing on the role of the Senate in Canadian governance and its relationship with the House of Commons. In particular, we are looking at how the Senate can best complement the House of Commons without either duplicating or overpowering it. With respect to the Charter, the committee would like to explore how the Senate could, through modernizing its rules and procedures, play a stronger role in scrutinizing legislation to ensure it is Charter compliant, something that the House of Commons may be less well placed to do.

Today we welcome as our witness Dr. Gary William O'Brien, former Clerk of the Senate and Clerk of the Parliaments. He is no stranger to many of you around the table. A graduate of Glendon College, York University, he continued his studies at Carleton University, graduating with both a Masters and PhD in Politic Science.

He started his career in the Library of Parliament in 1975, joined the House of Commons in 1978 and moved to the Senate in 1980. In the Senate, he held the positions of Director of English Journals, Director of Committees, Deputy Clerk, and Clerk of Senate and Clerk of the Parliaments. He retired from the Senate in 2015 after 37 years of service to the Parliament of Canada.

Dr. O'Brien is the author of numerous papers on parliamentary procedure, including a paper entitled "Legislative Scrutiny and the Charter of Rights: A Review of Senate Practices and Procedures," presented to the Canadian Presiding Offices Conference in Halifax in 2005. A copy of this paper has been distributed.

Dr. O'Brien, please commence your remarks. The committee will follow, I'm certain, with a period of questions.

Gary W. O'Brien, Former Clerk of the Senate, as an individual: Thank you very much. I am pleased to be with you today. Thank you for your invitation to appear.

You have gone through the many questions that are facing this committee as it tries to deal with modernization, including the Senate's relationship to the House of Commons, how the Senate might better organize to do its work for the benefit of Parliament and for Canadians, and what roles the various components of the Senate family should be playing.

I would like today to focus on just one aspect of your study; namely, what it means to be part of a bicameral institution and whether the Senate should be duplicating the work of the House of Commons.

My plea this afternoon is that as you probe into the role of the Senate and its relationship with the house, you never forget that bicameralism is one of the great ideas of government. As many have noted, its origins can be traced back to the classical time of the Romans when they had two consuls to make decisions, as well as to the idea of a "balanced constitution" embodied in the Glorious Revolution of 1689. As Professor Janet Ajzenstat of McMaster University said:

It remains a fact that the parliamentary system of checks and balances, with bicameralism at its heart, is the world's greatest political invention.

While it is true there is no one model of bicameralism and that each model is the outcome of national constitutional designs relative to each country's particular political dynamics -- and I was with Senator John Stewart in Cape Town in November 1988 at the workshop on the implementation of their new upper house, the National Council of the Provinces , when he told the South Africans, "You cut the shoe to fit the foot" -- in my view, the word "bicameralism" is hardly a concept in search of a theory. It has original meaning.

It is very important to remember that bicameralism was never put forward as the theory of the best government. From the start, it set itself up as a target for criticism. Rather, its original purpose was to try to prevent the worst government. Its first proponents in the modern era were James Harrington -- and I'm sure you know the philosophy behind bicameralism -- in 1659 and Charles-Louis Montesquieu in 1748. They saw bicameralism as a way of discouraging parliamentary despotism and for allowing a second opinion on political matters. Harrington wrote that "a popular assembly without a Senate cannot be wise." Montesquieu, following up on Harrington's work, was also interested in the balance of power between the two chambers and the improvement of legislation. Montesquieu wrote: "When the legislative and executive powers are united . . . there can be no liberty."

These two themes I think describe what the classical philosophers would call the nature of bicameralism. The ancient Greeks were always interested in the nature of justice, the nature of virtue, the nature of kingship; what does it mean to be a king? So if we use that approach, let's try to find out the nature of bicameralism.

I think it comes down very simply to two precepts: first, preventing parliamentary despotism, which includes protecting against popular demagoguery and those who govern in an oppressive way; and, two, improving legislation.

With respect to preventing parliamentary despotism, John Stuart Mill probably said it best:

The consideration which tells most, in my judgment, in favour of two Chambers . . . is the evil effect produced upon the mind of any holder of power, whether an individual or an assembly, by the consciousness of having only themselves to consult.

In terms of a second chamber's role in improving legislation, one of the more important statements, and little recognized in the list of Canadian parliamentary bibliography, came from Sir Edmund Head, who was Governor General of the Province of Canada from 1854 to 1861. Head was an able administrator and an Oxford scholar. Previously, he had been Lieutenant-Governor of New Brunswick and had prepared that province for responsible government. After his appointment as Governor General he then became Governor of the Hudson's Bay Company. In his lengthy 1856 dispatch to the Colonial Office on the legislative council, Head wrote:

It is almost superfluous to argue in the expediency of two chambers in order to secure full and fair discussion for every legislative measure, and to argue against the haste, which is likely to result from a popular feeling in favour of a particular enactment – the necessity has been pretty well admitted whenever Representative Government is established. A measure may often be said to come forth from the Assembly holding in solution certain elements, likely to be ultimately injurious to those who at the moment clamour for it. What sound Statesmanship requires, that time should be gained for a Bill in such condition to be subjected to some test or agent. . . . If this can be done and a certain delay interposed, common sense generally regains its strength, and the wishes of the people will probably in the end point in the direction of their real interest. . . . The best means for obtaining this object, as I have said, be assumed to be the operation of a second Chamber, under such conditions as to give time and opportunity for free and deliberate discussion.

Constitutionally, the Parliament of Canada is a bicameral institution and the original theories relating to the nature of bicameralism remain relevant. Those theories are encapsulated by section 91 of the Constitution Act, 1867, which states:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order and good Government of Canada . . . .

The significance of section 91 is twofold. First, it says that the Senate is coequal in constitutional power with the House of Commons regarding the passage of laws. Notwithstanding section 47 of the Constitution Act, 1982, which allows amendments to the Constitution without Senate resolution, and despite such attempts as the Charlottetown Accord to do so, the Senate's legislative powers have never been restricted like the powers of the House of Lords were by the Parliament Acts of 1911 and 1949. A suggestion has been made that the Senate impose upon itself a rule that it would only have a suspensive veto over Commons legislation. I would advise against this as it would clearly deviate from the original meaning of bicameralism. As opposed to being coequal when legislating, the Senate would only then have the power to ask the Commons to reflect. That function could be performed by any advisory body, be they the officers of Parliament or the Canadian Bar Association. The Senate, however, is a legislature, not an advisory body. As stated in section 91, the Senate is constitutionally coequal with the other place and sovereign with regard to its consideration of bills, which is the Senate's primary function.

How it uses its powers within the bicameral system is a different, though crucially important, question. A brief examination of the legislative influence of the Senate in recent years, perhaps up to the last election, in my opinion shows it operating under three different models; first, what could be called a "constitutional" model, which emphasizes that because the Senate is not elected, it tends to focus on technical as opposed to substantive amendments; second, a more "functional" model, where the Senate, particularly through its committees, moves from decisional functions such as amending bills, to non-decisional ones where investigation into policy questions is considered more important; and, third, during the period of 1984 to 1991, when Senator MacEachen was Leader of the Opposition, what could be called in political science terms a "bargaining" model, some would even say a "non-cooperative bargaining" model, which attempted to maximize the official opposition party's political utility by engaging in a process of strategic bargaining to achieve legislative influence.

As many of you will recall all too well, and I certainly do, during this period substantive changes were proposed to the Parole Act in 1986, the Drug Patent Act in 1987, the Immigration Act in 1988, the Unemployment Insurance Act in 1989 and the Income Tax Act, also in 1989. A number of bills died in committee, namely the Canada-U.S. free trade bill in 1988, the centre for management development bill in 1988, the Broadcasting Act 1988, a bill dealing with child care in 1988, and a bill dealing with the Port of Quebec in 1991. One committee divided a major bill into two separate bills, the Atlantic Canada Opportunities Agency, in 1988, and proposed an amendment to the Appropriations Act, a House of Commons supply bill, in 1989. These actions clearly went beyond moving technical amendments.

On many of these occasions the Commons felt its supremacy was thwarted and complained that the Senate was overpowering them and responsible government was in danger. Legislative deadlock seemed imminent. Obviously, neither the government nor the House of Commons liked this kind of situation where the Senate, like a swarm of bees, was constantly buzzing over its head. The 1987 Bill C-22, the drug patent bill, is a good example. It went back and forth between the houses three times. It was finally concurred in by the Senate on November 19, 195 calendar days after receiving the bill. The Leader of the Opposition, Senator MacEachen, told the Senate that his party would accept the Commons’ amendments to the Senate's amendments and not defeat Bill C-22 because:

The defeat of the bill today would become a victory for the government. . . . It would blame the Senate for denying the people the alleged benefits of Bill C-22. In these circumstances, and in our system, it is much more appropriate that the government take the responsibility for the impact of the legislation rather than the Senate should do so.

In the case of Bill C-22, the Senate was acting in a political and partisan manner. Although it competed with the House of Commons in an attempt to achieve influence over the legislation, it did not use its formal constitutional power to prevail over the other house. In the end it gave way.

However, it did manage concessions from the government in the final version of the bill. These were in the following areas: one, definitions; two, calculating payments to provinces; three, proclaiming the bill into force; four, the powers of the Prices Review Board; five, the information the patentees must provide the board; and, six, the information to be contained in the board's annual report.

As we can see, the Senate has used different theoretical models of acting in how it approaches Commons legislation. In the years to come, other models may be used based on the dynamics facing the Senate. It seems entirely appropriate for your committee to be looking at this.

I know this is a difficult question for you. Senator Hays used to always quote Machiavelli, saying that the hardest thing in life is to bring in a new order of things. I know you are dealing with this, and you may have questions after on this issue.

After 37 years of serving Parliament, I find it hard to consider myself not a traditionalist, but I recognize that what is interesting about the Westminster system is its flexibility. Different parliaments have different ways of moving things through their house and have different settings, different window dressing in many ways. The House of Lords, for example, up until recent years, didn't even have a Speaker. It resolved procedural issues through self-regulation, but even that went a little further. There was an acceptance that there would be a procedural discussion. Then the Leader of the Government would come up and say, "I think we've heard enough. I think this is the way we should proceed. I suggest this to the house." Then they just went on. They accepted that kind of convention, that there has to be some order in how it would proceed. There has to be order in how to proceed.

In New Brunswick, Premier McKenna was elected. My recollection is that there were no opposition members elected. The house was full of government members, yet it still proceeded to operate in a parliamentary way. We can come back to this, but I really think there can be adaptation to the dynamics facing a legislature. I'll have more to say about that in a minute.

If I could go on, Mr. Chair, a second significance of section 91 of the Constitution is that a bill, to become law, must be passed by both houses in identical form. Section 91, therefore, points the way as to how the Senate should function. Redundancy is a key value of bicameralism and the principal method of improving legislation by providing sober second thought. The legislative work of the House of Commons needs to be duplicated in the Senate. If their work is not repeated, the Senate is not performing its constitutional duties.

The genius of Westminster-style parliaments is its legislative procedure. Joseph Redlich's book, The Procedure of the House of Commons, which the former U.K. House of Commons Clerk Sir Courtenay Ilbert called "indispensable to the student of English Parliamentary institutions," noted that it was not responsible government or the supremacy of the House of Commons or the confidence convention or a loyal opposition that were the determining characteristics of the Westminster system. Rather, it was its legislative practices. As Redlich wrote on page 4 of volume 1 of his book: "Procedure by bill is, to this day, the characteristic mark of the English parliamentary system and all of its descendants . . . ."

Redundancy is embedded in the way Westminster-style parliaments do their work. Proposals are considered over and over and over again by both houses in order to ensure that they are the most intelligent decisions that could be made by a large body of legislators. A bill is given first reading. It then gets another reading, a second reading. Only certain types of amendments are allowed, including that the bill be considered again in six months. It is then given second reading and sent to a committee. Amendments to clauses can be moved, as can subamendments. The committee then reports its findings to the house, with or without amendments. If there are amendments, they must be approved at a formal debate stage. The bill is sent, then, for a third reading, at which stage an amendment can be moved that the bill be returned to the committee for further study. Once finally approved, the bill is sent to the other chamber for similar examination. Clauses may be further amended or added and then returned by message to that house for its consideration.

Redlich notes that, in 1848, no less than 18 different questions, each with its corresponding division, were required for the passage of a bill through the U.K. House of Commons. As we know, the modernization of parliamentary procedure, spurred on by the passage of the Reform Acts of 1832 and 1867, as well as the politicization of procedure, exemplified by the obstruction of the Irish nationalists in the 1880s, led to a tendency to simplify procedure and do away with what many consider unnecessary, redundant motions. Thankfully, there is still much redundancy left within the Westminster system, which the Canadian Parliament, with its own adaptations, follows. Therefore, unless the Senate of Canada plans to do away with giving bills three separate readings or not having a committee stage or abandoning a senator's right to move amendments or subamendments or no longer giving detailed scrutiny of legislation from the other place, I find it difficult to believe that the Senate is moving too far from the Westminster system.

One suggestion I would make to improve legislative practice in the Senate is to adopt a recommendation considered by the Rules Committee when Senator Austin was in the chair: That, when reporting a bill, a committee provide a checklist of issues, much like a memorandum to cabinet includes. The checklist would provide the committee's findings on various criteria important to public policy-making, such as how the bill may impact on regional development, what the chances are that the bill will breach Charter rights, and what the overall cost and benefit of this proposal is. By doing so, the legislative process in the Parliament of Canada could be strengthened.

Thank you very much.

Senator Joyal: Welcome, Mr. O'Brien. In listening to you carefully, I had the reflection in my head that I hope there is a Canadian university that can best use your expertise and wisdom, accumulated through all those years in Parliament, to better educate the next generation of students on the functioning of parliamentary institutions.

My question is in relation to a general comment that is floating around regarding to the appointment of a large segment or group of independent senators and the fact -- of course recognized -- that the Senate could be more independent in the future, but at the same time that the Senate should refrain from exercising its mighty powers, which you have described, that are enshrined in section 91, and that the Senate should never stand in the way of an elected majority. I have personal views in relation to that, but I would like you no comment on that on the basis of the powers that ensue from the coequal status of the Senate with the House of Commons, in the way of the power to delay and the power to amend.

You illustrated the power to amend extensively when Senator MacEachen was the Leader of the Opposition. I contend that the power to amend is best used in the hands of the opposition party; the power to delay also. The power to vote for legislation or to support the government is in the hands of the majority that the government tries to influence, either directly by having a government caucus, or indirectly by appealing to individual senators through the actions of ministers of the Crown individually with various members. There is no doubt that the government cannot remain passive in relation to its legislation. The government has to seek the support of the house, and the support can be sought on the basis of the substance of the arguments and of personal relationships to be developed with senators. I feel that this dynamic exists presently and could change if we are to move in the direction whereby we would have to contemplate that there is no more opposition party to stand against the government on a daily basis in the study of the legislation.

So it seems to me that, as you said, if we want to have redundancy, deep scrutiny and real improvement of legislation, those powers have to be exercised. It can't just be a debating society or, as you said, an advisory body.

How do you see the evolution of the institution on that basis?

Mr. O'Brien: The Senate -- I don't agree. Constitutionally, they are coequal. To say that the Senate must recognize the supremacy of the House of Commons -- the House of Lords must recognize the supremacy of the House of Commons by act of Parliament, but not here. The message this morning is "don't forget that."

You are a bicameral institution. Bicameralism is not the most popular theory in the world. It's not meant to be one for the best government but to protect against the worst government.

The Senate should never be afraid to use its power in that way of protecting against cruel and abusive government. You are there to protect. That's one function.

The other function, of course, is improving legislation, which you're concerned about in terms of how this is to be done. That is at the heart of your debate of the dynamics.

It's a difficult question, and I'm not sure I have the answer for it. I would just caution that in any model you move forward to, you should never forget the principles of bicameralism. Second, never impede upon the principles or laws of parliamentary procedure. Those include the issue of the law of publicity, which is to prevent surprises.

You should, therefore, know how the system is to work. There shouldn't be uncertainty as to what the roles of various people are as they move legislation through the house. That's the great advantage of the system that you have inherited, the existing system, which includes the Speaker. The Speaker knows his role, the Leader of the Government knows his role and the opposition members know their roles. There are authorities that describe them. When a senator goes into the chamber, they know more or less how the bill is to proceed.

The heart of the matter, of course, is who is to be given that bill. Where is the strongest dynamic to provide that criticism and detailed scrutiny that we want a bicameral institution to provide? Your challenge is how to make that happen.

Obviously you feel the opposition is the best way of doing it. I don't disagree with that, but I'm open to other ways.

Senator Joyal: As I stated, the power to amend is essentially linked to the power to veto. You have to have a bargaining tool if you want to press the government to accept an amendment. How can you press the government to accept the amendment if you don't have the ultimate power of refusing to vote on the legislation or to delay it to a point whereby it will fall from the Order Paper because there will be dissolution? So it seems we have to be practical as to how the power is exercised.

If you just express the wish that some amendments could be brought to the legislation, the government would not be swayed too much by that situation. The government is pressed to come to terms with a decision when the government feels they could lose the legislation either through a simple vote or because the legislation will "die of thirst" at the end of a session.

It has to be very clear that when we are changing the composition of the Senate, we also have an impact on the use of the power of the Senate. That is the relationship that is floating around: "Okay, we'll have a Senate that will be 105 independents, but you cannot stand in the way of the government." You will have to yield to the elected majority in the House of Commons, even though, on the issue at stake, the government never had any electoral mandate to fulfill that promise. It's the principle that the Senate has to remain subservient to the elected majority of the House of Commons.

I'm sure you heard that argument when we were benefiting from your services as the Clerk of this institution. We have to be very mindful that, with the way we are evolving, will we question the use of the power of the Senate?

Mr. O'Brien: I don't have any comment on that.

Senator McCoy: It is a pleasure, Dr. O'Brien, to have you with us once again. I apologize for being late. I was delayed in another meeting.

You started to outline some of the principal rules of parliamentary law, the first one being publicity. Very quickly, could you name the other three for me?

Mr. O'Brien: I thought I could ask you that, senator.

Senator McCoy: You answer it. You're better at it.

Mr. O'Brien: Without my notes, if I recall, the second law -- and this, of course, comes from Jeremy Bentham -- was the impartiality of the chair. The chamber cannot operate if there is some doubt as to how the chairman of the body is going to officiate proceedings.

Every time you look at these, the more you draw conclusions. Third is how a decision is reached, which is through a proposition or motion. There is a debate and then there is a decision. That's how the Senate operates procedurally -- through motion. It is debated. You can only have on the floor at any time, and it's debated all the way through -- it can be adjourned, of course -- until a decision is reached on it. Then you go on to something else.

I think the implication of this rule is that there is order in the Senate and the legislature. You can't have a situation where there is disorder. That's why all members have a right to raise a point of order. It's not just the Speaker's job to keep order in the chamber; it's every senator's responsibility. They have a right to raise a point of order and immediately the business stops. That's how important order is.

The fourth dealt with the freedom of speech, the key basis of parliamentary privilege, the heart of parliamentary privilege. The chamber cannot operate without this parliamentary privilege, which narrows it down to protecting freedom of speech. Once again, the business of the house will be interrupted when a senator raises a point of privilege. That's how important freedom of speech is. Without the ability to speak freely, everything is a sham. You need to have that freedom to bring out the greatest intelligence of members so the decision can be the best decision reached. That is, of course, what bicameralism aims for.

The fifth is the majority principle. While you might have debate, at some point a Parliament is not just there to debate but to act as well. At some point in the deliberations, the majority must have its way and a decision is taken.

Those, as you remember, are the main issues.

Senator McCoy: The single hallmark of the Westminster model is that we deal with bills. We create legislation through the three readings of bills. Combined with those five rules of parliamentary law, I take it, we have guiding principles.

I want to confirm my sometimes imperfect memory by referring to the 2014 Supreme Court of Canada decision. I think it's called Reference re Senate Reform. As I recall, two key conclusions were that the Senate of Canada is a complementary body to the House of Commons. We don't always have to agree with them, but we are complementary. They also said at paragraph 58 of the decision that we are not coequal. Is my recollection correct?

Mr. O'Brien: I don't have the ruling before me, and I have to be careful because of my own personal views.

"Complementary" -- it depends on what that term means. Does it mean to complete the work of the house? I would say absolutely. It's there to complete the work of the House of Commons. The work with the House of Commons is not completed without Senate’s input and decisions. It doesn't mean subservient to the House of Commons. I find that a bit unpalatable.

As far as coequal is concerned, I take my Constitution out and I look at it. Where does it say the Senate is to be a complementary body? I can't find that.

The Supreme Court ruling said different things that I found very surprising. In paragraph 20, it said that ". . . the Senate has remained largely unchanged since its creation." I find that to be such a bizarre statement. As you know, in 1867, there were only four provinces. In 1870, the Manitoba Act, a constitutional act, allowed Manitoba to have Senate representation. The British Columbia Terms of Union in 1871 added three more senators. P.E.I. joined in 1873, and they were given four senators. The Alberta and Saskatchewan acts allowed both of them to have four members. Then in the Constitution Act in 1915, they were allowed six members. Newfoundland joined in 1949, and then the territories were also given representation.

Even by that, the legislative code -- the responsibilities of senators -- changed enormously from what was four provinces in 1867 to issues that dealt with agriculture, coastal issues and the North. The legislative responsibilities of senators changed tremendously. That's not to mention that in 1929 through the Persons Case, women were allowed to take their seats in the Senate.

I have to say one of my greatest pleasures as Clerk was to bring the portrait of Senator Cairine Wilson into the Senate Reading Room to show it was not an old boys' club. It was also recognition of her appointment and the participation of all women in the Senate.

I found that that sentence could have been changed in the Supreme Court ruling, and it gave a very different impression. Not to mention the administrative changes that have taken place and the ethics regime that was brought in. It's a tremendously different institution than it was in 1867.

Senator McCoy: I'll stop there and let others participate.

Senator McIntyre: Dr. O'Brien, you have served in a variety of roles in both the House of Commons and the Senate. You have published extensively on the Senate, Parliament and the law-abiding process. You are therefore in a good position to answer our questions on the Senate's relationship with the House of Commons.

My question has to do with the issue of resolving legislative disputes. It doesn't happen all the time, but it does happen when the Senate and the House of Commons lock horns on legislation. For example, the Senate receives a bill from the House of Commons, and it can pass, amend, defeat or defer the bill.

You've spoken about various models, but can you suggest mechanisms, such as a conference between the chambers, to facilitate a better resolution of disputes?

Mr. O'Brien: Absolutely. I know Senator Hays put that forward in an article in the Canadian Parliamentary Review some time ago, and I agree this is a procedure that is in our books. It has not been used. It was used shortly after the war. It was constantly used in the pre-colonial era. This was how the houses dealt with getting an agreement. It's certainly dealt with in the U.S. Congress, and there are scholarly articles that show the great success of confidence committees that deal with legislation to resolve deadlock between two houses.

We talked about Bill C-22. That came very close to being a conference, and it was proposed. I think the house rejected it, but I asked Senator Stewart after it was over, "Does this mean conferences are dead from now on?" He said, "No, they're not."

It's still a mechanism under traditional parliamentary procedure. It's not something new. Senators should not be afraid to ask for a free conference to allow some of the managers to try to work out a compromise and bring those reports back to the houses.

Having a dialogue in the Debates of the Senate, or Hansard, is different than sitting down and explaining concerns. Given your eminent positions -- you are all eminent in your own professional lives, respected and knowledgeable -- this is something that should be an open idea. Hopefully it comes down to that; that the house would accept amendments that the Senate is proposing or at least give them due consideration -- I think they do, because there are public policy issues at stake -- and not reject them a priori. I would recommend that procedure of conference.

Senator McIntyre: If the Senate amends a government bill and some or all of those amendments are rejected by the House of Commons, when should the Senate insist upon its amendments?

Mr. O'Brien: There is a message saying that the house has rejected the Senate amendments, and the Senate has to decide whether to accept that decision or insist. It often does not decide right away. It sends the Commons’ amendments to a committee and there is further examination. The minister has to appear and there is further dialogue. They are not rejected totally. Often a new set of amendments may be proposed, a little more palatable, perhaps.

It's never quite clear when a bill is dead. I talked to Bob Marleau about that during Bill C-22. It went back three times. At what point is it going to be considered to be dead? It was never defined. There's always a possibility that the bill can be saved.

Senator Eggleton: Picking up on that, right now it seems to be whoever blinks first.

I think your idea of a deadlock conference is a good one. It may not have been needed for quite a number of years now, but the way things are going at the moment, it could be useful in the future.

I have two questions. I want to go back, first of all, to this question of being a complementary body versus a coequal body, and whether there really are differences and what the differences are. You've said you don't see "complementary" in the Constitution. We've heard that it was mentioned in the Supreme Court decision. Sometimes we go back to the Fathers of Confederation and their thoughts, and there seem to be some thoughts about it being a complementary body. For example, John A. Macdonald said something along the lines -- I won't get this quite correct -- that the upper chamber, or the Senate, should never stand against the will of the people, taking that to mean the will of the people as expressed through the duly elected government in the House of Commons. What do you make of that in terms of this question of complementary status?

Mr. O'Brien: My thoughts are that there has been a lot of revisionism of what actually occurred in 1867. To set the background, there was, as you know, up until 1867, the Province of Canada, since 1855, had an elected Senate. John A. Macdonald supported that election. After the Rebellion Losses Bill of 1849 in which the Legislative Council was swamped in order to pass that bill, people became disgusted with the upper house. But instead of moving to abolish it, they moved to reform it. They moved to having an elected Senate from which this modern Senate took most of its characteristics; that is, 24 senators from each division, each section which got that right, and that model was used for the Senate.

As they went into the Quebec Conference, John A. Macdonald said, "Look, I'm still open. I'm a very pragmatic person, and I'm open to an elected Senate. I'm willing to hear what people say."

George Brown was quite adamant that under no circumstances should the Senate, the upper house, be elected. He was a follower of Robert Baldwin. As we know, Baldwin was quite adamant that there can be no, as the Americans had, elected upper house. Brown was his supporter, and that was part of the agreement with the great ministry to proceed to Confederation. That was part of Brown's demands, and of course he swung the day; although Prince Edward Island, which also had an elected Senate, walked away from the conference -- not that that was the main stumbling point, but it was part of the point.

In the great debate of the Confederation resolutions, there was this great talk of independence; the Senate must be independent. What they were really talking about was the problems of the old Legislative Council. They were clearly under the influence of the governor. Some of them were the postmaster general; some of them had posts of emolument that were part of the government structure sitting in the Legislative Council. Of course they weren't independent; they were swayed.

So there was a great movement to make it independent, that is, appoint them for life. That was the major issue, to correct the evils that were going on with respect to the old Legislative Council. They wanted the Senate to be independent, just like the House of Commons is independent. Members of the House of Commons are to be independent from the state to influence their decisions.

Macdonald joined Brown in wanting an upper house that was not elected, and of course then moved to a different view that they should not ever be a check against the popular will. He was a pragmatic politician, so I'm not quite sure where he stood on that.

Senator Eggleton: My other question has to do with the processing of private members' bills through both chambers. We actually have an excellent example now of a private member's bill started in the Senate that has actually passed in the House of Commons and is about to become law, and that is Bill S-201, on genetic discrimination, put forward by former Senator Jim Cowan. But that seems to be the exception. There seems to be a difficult time in getting private members' bills processed through the House of Commons. They have a different set of rules on how they deal with private members' bills. How would you suggest this could be better worked out so that there is more respect for the private members' bills going from one chamber to the other?

Mr. O'Brien: I think the issue of procedural change is always appropriate to make sure that the legislation of each house is considered fairly. I don't know; a joint committee could be appointed to try to work out these differences as we move to parliamentary reform in both chambers, because obviously it's a very important part of the legislative process.

Canada has moved quite far from the attitude of the British House of Commons. When I was there on attachment, I asked them about the House of Lords private members' legislation and how the U.K. House of Commons deals with it, and their attitude was: The Lords can wait.

Senator Eggleton: I think we get that attitude here. They don't call us "Lords," though.

Senator Tkachuk: If a Senate bill goes to the house, it has to be considered, right? It doesn't fall into the lottery system. Any member can pick up a Senate bill and then move it, while their own bills are part of a lottery system where they actually draw where they go. So they may have to wait a long time before they introduce it. Actually, Senate bills get dealt with reasonably efficiently, although what happens after they move it is a separate situation.

[Translation]

Senator Bellemare: Thank you for agreeing to appear at this committee meeting, Mr. O’Brien. Your comments are very interesting and rather refreshing.

What interests me the most is your idea of establishing a checklist of issues. Obviously, in the context of a less partisan Senate, the results of the legislative process seem to represent your number one criteria in terms of a Westminster description for the Canadian Senate. The legislative process seems to be the key characteristic.

According to this process, if the senators are partisan, the result is a bit easier to predict, given the existence of party lines. If the senators are less partisan, the result is more difficult to predict, even though personal preferences may be reflected in each person’s comments and in the decision-making process.

I agree with your idea of establishing a checklist of issues to review during the study of a bill. I suggested this approach as part of a motion. Within the committees, the Senate should at least ask questions about a certain number of points to help determine whether and how, if applicable, the bill can be improved. This will also help the senators set aside their personal preferences. We know there’s also the "will of the people" issue, which Senator Eggleton mentioned. John Stuart Mill spoke about it as well. Given that you read it, you undoubtedly recall it. However, do you think we should structure this checklist of issues to make it part of the committees’ procedure? Should we make it a convention?

As you know, a committee can simply indicate that it reported without amendments, even if it tried to make amendments. As a result, we’re not aware of them. Do you think it would be useful to ask the committees to, at the very least, include observations regarding a checklist of issues?

Mr. O’Brien: Yes. It was Senator Austin’s idea, when he was the chair of the Rules Committee, to have a set rule that describes the criteria for how the committees should at least make some comments. The rule must force the committee to address the issues, when the witnesses are before them, regarding subjects, maybe four subjects, especially the issue of the impact on regional development. The former Senator Pierre De Bané was one of the first to be a minister responsible for regional development within a government. I know that he was very supportive of the idea of including this criterion in a rule for committee reports.

The second issue that interests the senators here, in the Senate, is the Charter of Rights.

[English]

To me, that is very important and that issue is quite sensitive to senators. I know there is a Human Rights Committee and that the Constitutional and Legal Affairs Committee takes a great interest, but as you know, every piece of legislation may or may not have some relationship to the Charter. And therefore every committee, when it receives a bill, should be aware of this issue. It's something many scholars feel Parliament still does not have a proper handle on, that it's not just a question of the courts.

The feeling used to be that Parliament looks after general rights, whereas the courts look after individual rights. But we know that senators particularly are keen, because of their representation of minorities, to ensure that Charter rights are not breached.

Of course, you're still at a pre-statutory phase. The bill has not become a statute, so you're not sure whether the courts are going to rule one way or the other. But there seems to be some dissatisfaction with the fact that the minister may table -- I don't even know if they do that, but by law I think they are required to say whether something contravenes the Charter of Rights. And the debate in the department is not so much whether the Charter is going to breach, but what are the chances of it breaching?  Is it 20 per cent or is it 80 per cent? Parliament needs to know that and needs to make its own estimation.

How can we do this? I think there could be a mandate given to the law clerk's office. Obviously, it will entail greater resources but it's worth considering that the law clerk's office be mandated to provide each committee, as a bill goes to committee, with an assessment on that particular question of what the issue is in relation to Charter rights on that bill. I think that would be very worthwhile. I will know it may slow things down. But, again, it goes back to bicameralism. You are here to improve legislation, and I think a systematic way of doing it would be very helpful.

Another issue that could be added to that list is the impact on federal-provincial relations. The Senate is tied to the provinces, and the Supreme Court reference of 2014 was very clear about the provinces' interest in the Senate and how it works. They hold the cards in terms of any major amendments that go forward. I know that federal-provincial relations, when I was here, was part of the Legal and Constitutional Affairs Committee. Again, every bill might have an impact on federal-provincial relations and there should be an assessment on that issue as well.

So I agree with you. Less partisan might be more open to having that kind of a list. Will it delay the legislation? It may, but it might be worth delaying to have that information before the Senate and before Canadians, which is more important.

[Translation]

Senator Bellemare: In terms of a list, regarding the experts who come to speak at committee meetings --

[English]

Do you have some advice for us on how to choose the experts, the people that come to committee when we study bills? If we have a list, does it make a difference? If so, what would be your comment or advice on how we pick good witnesses?

Mr. O'Brien: Well, you can't hear everyone, that's for sure. One of the things about the Senate that I always heard is that the people of Canada are fed up with the Senate, don't like the Senate and want it abolished. Yet when I was Director of Committees, people lined up to appear. There were so many that wanted to appear. Senate committees are a very dynamic, useful part of the Senate and there is no shortage of witnesses. That's a difficult choice and usually it was left to the steering committee. Does it make a difference? Yes, it does. It clearly makes a difference.

Do you want the same people as you had in the house? Maybe not, because in that instance, their comments are already on the record. Then again, you might want to query them on the comments they made in the house, so I wouldn't dismiss it automatically, but there is a case to be made of hearing different people.

The selection of witnesses is a very key question. I know the library is excellent in knowing these people, what the witnesses may bring to the table, so there is no surprise. I know sometimes they talk to them even before they appear. I really rely on the Library of Parliament. We have the best library research branch anywhere, and use them.

Senator Dean: Thank you for being with us today, Dr. O'Brien. My question falls well because we have veered into the question of quality and efficiency, and the way that the Senate uses its time.

You talked about redundancy, and I'll speak personally. I don't lose any sleep about redundancy in the Senate right now. I do lose a little sleep about quality and efficiency, and that's the lead-in to my question.

I will note that from time to time, and you know what I'm talking about, we would benefit from a checklist and we would benefit from a more systematic approach to bills. Those things in themselves would be great, but as long as we continue to have what I might term a "truncated approach in time" to bills, where we sometimes nibble away incrementally over a period of weeks or months, a checklist and a more systematic approach in themselves is not going to help us.

I did this in talking to a group of students in London, Ontario earlier this week. We talked about the assisted dying debate. We all tend to hold that up as a really good example of high-quality, consolidated discussion in which citizens can see their views represented over a relatively short space of time in quality debate.

How do we start, at least on major pieces of legislation, seeing what we and others saw in the assisted dying debate become more commonplace in the Senate? It should not be something that we point to as a great thing that happened at a point in time, but I'd like to see that. I think my colleagues would like to see it. I'm sure that you would like to see that occurring more regularly because we organize ourselves to achieve those outcomes. That's one question.

The second one is unrelated, but I think it’s also related to quality. You emphasized freedom of speech in the Senate. Should freedom of speech and freedom of expression extend to freedom to vote without concern – that is, free from undue influence and free from the potential of sanctions? That's a separate question on a separate matter, but it comes down to the notion of free votes. Could you share your thoughts with us on that also?

Mr. O'Brien: It was always frustrating to have a second reading debate start and then someone take the adjournment and it would go for many sittings without movement. The committee would have done a lot of work, prepared its report and presented it and the debate would go on to third reading. Then it would be weeks and weeks after the report was made and they would say, "What was in that report? We can't really remember what was in the report because there are so many reports."

In the U.K., the Lords struggled with this. The convenors arranged for a particular day to have the debate on second reading of a major bill. It wouldn’t have to be the next day but, say, two weeks after the bill came to the Lords, they’d have the debate. That means the mover gives a speech.

Under our Rules, the mover has the right of reply at second reading. That's what's key. But if the right of reply is weeks after he moved and he wasn't even in the chamber when so and so made a speech, it makes a bit of a farce of the debate.

So with agreement, they publicize it.  Those interested in the bill are watching in the gallery, or wherever, and they know that is the day they're going to deal with second reading of Bill X. The member, or the minister, whoever it is, makes a speech. The opposition replies. All members then reply and at the end of the debate he closes the debate. The Speaker gets up and says, "If the senator speaks now, it has the effect of closing the debate." "Closing the debate" means it's over, because he's heard everything; the chamber heard everything, and they go on to the next stage. That's the way they proceed with third reading.

I think the quality would get better. I think there would be a way to point to a good example of how a legislature works and that would be a major thing.

Of course, as Governor General Head said, time is important; that is, time to digest what's in the bill. Time is an important part of Parliament. We don't rush things, so there would have to be a compromise on the time issue -- not to push things but not to give endless time. I think that would help.

That is a suggestion I made before, and as with many suggestions I've made, it has not been enacted upon, but I think it's still worth considering.

The other question?

Senator Dean: It is the question of free votes.

Mr. O'Brien: To be quite honest, in my experience in the 37 years I served, senators did vote freely. I recall very few occasions when there were guns to heads. I know Senator Molgat once faced a situation when he was the Speaker. The Speaker can vote and there pressure was on him to vote a certain way as the Speaker, and he was almost crying to me. I was the deputy clerk at that point in time and he said, "You wouldn't believe what I'm under."

An Hon. Senator: And he refused to vote.

Mr. O'Brien: He acted on his own conscience. I think many senators who felt that way would do that because they believed in what they were doing. They were part of a caucus, that's true, but they believed what they were feeling.

There were many examples of leaving the caucus; many examples of breakaway. Even in the repatriation of the Constitution, I think 13 Liberal senators did so; Elsie Inman was one of them. She said, "John A. Macdonald wanted me to be independent and I am going to be independent." She was a lifer and she was not going to cow-tow to anybody.

Regarding this thing that partisanship makes senators do things against their will, I very rarely saw that.

Senator Dean: As a supplementary, to enshrine in the Rules of the Senate such a right would likely be harmless if that's the way we have been operating for the last number of decades.

Mr. O'Brien: To actually inscribe that every vote must be a free vote?

Senator Dean: That's correct.

Mr. O'Brien: That’s a political -- I wouldn't want to comment on that.

Senator Dean: I think your answer says it all.

[Translation]

Senator Forest: Thank you, Mr. O’Brien, for sharing your extensive experience with us. I’m quite a young senator. You can’t tell by looking at me, but I’m learning a great deal from what you’re saying.

My question may seem simplistic. However, since being appointed, my understanding has been that the Senate’s mission is to provide sober second thought on the bills it receives in order to study them in an objective and non-partisan way, in the interest of Canadians, and particularly in the interest of the regions -- one of my main concerns -- and minorities. That’s my understanding of the very essence of this great institution. Am I wrong to think this, or do I have a good understanding of the institution?

Mr. O’Brien: You’re way off! No, you have a very good understanding of the institution.

Senator Forest: You worry me when you say I’m way off. So, I have a good understanding?

[English]

Mr. O'Brien: You do, and your region is very important.

Constitutionally, you are representative of your province and you are to bring that second look to legislation.

Concerning partisanship, you will have to work that into your calculus, but objectively I think is a good way of doing it. Partisanship does not necessarily mean not objective. You are still looking at things for the best for your region and for the people of Canada, as you just said. I think you're right on the mark.

[Translation]

Senator Forest: I listened closely to Senator Joyal’s comments yesterday in the House, and again today. He seemed to think that the senators’ independence mitigates the powers of the institution, or that the institution would give up its powers to refuse, study or delay, and so on. I can’t understand this finding, and I think the reverse could be more threatening.

For example, I’m looking at what the Senate did in December. On the initiative of Senator Pratte, it had Bill C-29 amended according to the interests of all Canadians. I think I’m here more to represent the region and minorities. However, I don’t feel obliged to be part of a partisan caucus to fulfill this role. When I try to embody the spirit of the Senate, I think that, initially, this notion of partisanship didn’t exist.

[English]

Mr. O'Brien: I don't disagree with what you're saying. You don't need a party to proceed to represent your own interests. On an individual basis, it makes total sense.

I think maybe what Senator Joyal is talking about is in the greater dynamics of the institution. You're not there, and what happens then? A great thing about party, or caucuses, is to divide up the labour and to ensure that there are others to take your place if you're not there. You are a team and you're working in a certain direction that you've all agreed to. That dynamic is missing without a caucus. The impact of that on the institution and on the legislative process is a big question.

[Translation]

Senator Forest: What I gather from your comments and your extensive experience is that the organization within a caucus is more effective in terms of operations than in terms of ideology. The partisan caucus isn’t dedicated to an ideology. Instead, it’s a much more effective establishment on an operational level.

[English]

Mr. O’Brien: I would think so.

[Translation]

Senator Massicotte: My question has already been answered.

[English]

Senator Tkachuk: Thank you very much, Mr. O'Brien. It's nice seeing you as a teacher. You were that as Clerk as well. We appreciate your participation today. I have a couple of comments on your presentation.

We have this discussion of partisanship all the time, and sometimes it even gets a little partisan in here, but to want something and not to want something is equally partisan. It always seems to me the negative is the partisan, and the bill itself is not partisan. It's the bill: You're just being partisan because you don't want the bill. But to want something is the same as not wanting something, so you have two equal fights.

You were talking about some of the impacts that the Senate had on legislation in the 1980s. That was because I think it was a Liberal majority in the Senate, and so they were opposed to the government. I know that in 2006 when the Conservatives brought in the accountability bill, the Liberals weren't in favour of how that bill was structured. We had quite an argument about it. There were a number of bills when we were the minority in the house. We were definitely the minority in the Senate until about 2010 or 2011, so there was a lot of compromise on the bill. There was a lot of discussion.

If we're really going to modernize the Senate, the question of independence is all about partisanship. It's about nothing else. In other words, if we had a limit on the amount of government senators that were appointed, we'd have a really independent Senate because the only time the Senate has shown independence from the government is when you have a pro and con, in other words in the 1980s. During the accountability bill, we had 100 and some amendments. If you have 80 members that are the same party as the House of Commons, you don't have any independence. It doesn't matter whether they sit in the caucus or not. Would it require legislation if the government, after they hit 60 per cent, they would have to take the appointment of the opposition party into the Senate? Is that a possibility? That would definitely be modernization. That's a fact.

Mr. O'Brien: Well, whether it's by law or convention, we know that the U.K. does have the issue of appointments to the Lords, that the Prime Minister has to share them with the other opposition parties. There was an agreement at some point, not that long ago, that the share of the appointments would reflect the popular vote in the last election; so if they got 40 per cent, the government would only get 40 per cent of the Lords and the rest would be shared by the opposition.

I think David Cameron threw that out the window when he saw that the Lords were rejecting his legislation. I'm just guessing. I'm not sure of this.

Right now the Prime Minister, under Privy Council order of 1935 which came with Mackenzie King, is the sole one to be able to make recommendations to the Governor General on the appointments of senators. That has not changed. That would have to change. That order-in-council of 1935 would have to be amended to allow others to make recommendations on the appointments. What the numbers would be, I don't know, but something could be done through an amendment to that order-in-council.

Senator Tkachuk: One other question: I know everyone is enamoured with the debate on assisted dying, but the reason the debate took place was because if we didn't do it, the Supreme Court was going to do it. We either had to make a law or abdicate our responsibility and let the Supreme Court do it, so we were forced to do the debates. But no one wants independence when senators actually act independently, so as an opposition party, we're not in any rush to pass legislation and they are. The government does have the ability to close the bill, do they not?

Mr. O'Brien: In the Senate? I think those rules are still there.

Senator Tkachuk: Of course.

So that debate that you're concerned about, Senator Dean, could happen if there was a closure motion, if the government thought that the bill was so important that it no longer had a place to sit on the table of the Senate and be argued about by people like us.

Senator Gold: I'm going to resist the almost irresistible temptation to be drawn into a discussion about partisanship and the independence of those of us appointed most recently, except to say that I do not recognize myself in the way in which we have been characterized regularly as simply members of a political party or Liberals in disguise or government appointees. It's factually not true. It hardly rises to a question of privilege, so I won't say anything more. It is simply not the case. But time will tell.

I want to make sure that I understood something you said. I appreciate very much -- might I use the term -- the functional approach that you're taking, focusing on what the heart is and what the essence is of the Senate's legislative role. Indeed, the legislative role is at the heart of what you called the Westminster model of bicameral parliaments.

Did I understand you correctly to say that so long as reform of the Senate leaves in place those essential features or laws -- publicity, free speech and others you helpfully listed -- as well as multiple readings of bills, our committee structure, the ability to recommend amendments at various stages of the process, et cetera, that we would not be moving too far from what you described as a Westminster model of bicameral parliaments? Did I understand you in that respect?

Mr. O'Brien: Absolutely.

[Translation]

Senator Dupuis: Mr. O’Brien, thank you for being here today to help us reflect on Senate modernization. I have a question for you. You spoke about the historical aspect of the Westminster system’s establishment, but you also mentioned the flexibility of the system. This means that different Parliaments have adjusted rules to fit their political reality, if I understand correctly.

I don’t have answers to the questions of political parties, whether or not they’re partisan, when it comes to the independents. However, there appears to be a reality in the way the Canadian political landscape is changing. With this in mind, I think the political decision was made to broaden the Senate representation to include independent senators. One reason is that women’s views were never represented, since they didn’t even have the right to sit in the Senate. Another reason is that the views of all types of minorities, including economic minorities, were never represented in the Senate. An additional reason is that the rules meant that, in economic terms, a certain financial position was required to sit in the Senate. In that sense, isn’t your approach to the senator’s function, within this institution, essential to answer the question of how both partisan and non-partisan issues are resolved in terms of Senate representation?

[English]

Mr. O'Brien: The functions of the Senate are most important. To have those components involved is essential. Partisan or not partisan is part of the baggage, I guess, but what it comes down to is the work of the Senate to improve legislation. How it gets there is going to be up to the Senate to decide.

My plea this morning is to not forget that you have a role within the Parliament of Canada, within section 91, to improve legislation and to protect against demagoguery. Those are your key roles. Those are the things that you're here to do. You may have different ways of getting there. Some may be better, some not better, but you should always keep your mind and focus on the principles of bicameralism and honour those.

[Translation]

Senator Tardif: Hello, Mr. O’Brien. It’s always nice to see you.

Mr. O’Brien: It’s nice to see you too.

Senator Tardif: Thank you for being here today. Sometimes, the government asks the Senate to conduct a pre-study of certain bills to speed up the process and ensure the bill can be adopted. The Senate sees itself as a chamber of second thought. Therefore, in the past, it has tended to refuse the government’s request, except in the case of bills that involve financial issues, such as budgets. What do you think of the pre-study as a way for the Senate to make recommendations to the government before the bill gets to the Senate? Is it a way for the House of Commons and Senate to confer, so to speak?

[English]

Mr. O'Brien: I've always been a proponent of pre-study. It's a great way for the Senate to get involved in legislation early. I know it's often not looked at favourably because the work senators do is not really recognized in the House. When the bill actually gets to the Senate, it seems like the Senate is rubber-stamping it, despite the fact that it had spent many weeks in a pre-study of the bill.

The more you deal with legislation to improve it is great. It's in your rule books. It's a perfect procedure to use, and I would certainly encourage it.

Senator McCoy: Dr. O'Brien, I, too, really appreciate the functional approach you're taking to clarify our two key roles, improving legislation and protecting against demagoguery. That's very succinct.

Earlier, you talked about how we do that in an organizational sense, almost in a pure, mechanical way. You made reference to the fact that caucuses have done that effectively in the past. But I want to clarify something. Would you say that a caucus must be composed of a political party?

Mr. O'Brien: No.

Senator McCoy: No? A caucus could be a parliamentary group without a political affiliation?

Mr. O'Brien: I think so, sure.

The Chair: Dr. O'Brien, on behalf of the committee, thank you very much for coming here today, sharing your vast knowledge and handling the questions in an expert fashion. We thank you for that, and I thank committee members for their wise questions.

(The committee adjourned.)